The SWA argued there was an alternative measure to minimum pricing – taxation – but the Scottish Government countered that a tax would not be as effective and had to demonstrate minimum pricing was necessary and proportionate.
The judgment was unequivocal, stating: “At the risk of unnecessary repetition, it is primarily for the State to determine the level of protection which it wishes to afford to its citizen’s life and health and the means by which that level can be achieved”.
The ruling also pointed out there that it is something of a guessing game as to what impact minimum pricing will have on alcohol sales.
A so-called “sunset clause” built in to the legislation means minimum pricing will have to be reviewed after six years and within a period of five years the Government has to produce a report on the impact it is having.
Post Brexit and over the course of next few years EU law may no longer be relevant and the appellants may feel somewhat aggrieved that the Government’s case rested partly on the “tax issue” but that would be to discount one sub-heading in an overall robust judgment which found against them.
The court has produced a thorough and balanced judgment which supports the judge at first instance on every point.
The appeal judges found that the Lord Ordinary applied the law accurately to the facts which he found demonstrated by the materials before him. The Scottish Government met the test that minimum pricing has a legitimate aim, which is the proportionate protection of life and health, and I find it difficult to see where there would be grounds for appeal.
The SWA would need leave from the Inner House to appeal to the Supreme Court but if the Inner House declines to grant leave it is possible to apply direct to the Supreme Court on a point of law of general public importance. However, I find it difficult to envisage the Supreme Court overturning two judgments which are viewed as supportive of protecting the health of Scottish citizens.
l Audrey Ferrie is legal director and licensing specialist at Pinsent Masons