‘Euro laws would put SNP’s booze fight on a knife edge’

THE SNP’s flagship proposal to impose a minimum price for alcohol could be left on a “knife edge” if an expected legal challenge to the policy comes before Europe’s highest court, a leading expert on Scots law has warned.

James McLean, convener of the competition law committee of the Law Society of Scotland, told The Scotsman that judges at the European Court of Justice (ECJ) could rule against the drink-pricing policy on the grounds it contravenes EU rules on the free movement of goods.

The legal expert issued his warning as the Scottish Government published a bill that would set a minimum price per unit of alcohol yesterday.

Mr McLean made his remarks as Scottish ministers came under increasing pressure to publish details of the legal advice the government had received on the policy, which it insisted was “legally competent and sound”.

The SNP government, which has yet to say what level the minimum price would be set at, dismissed calls to publish its legal advice, which follow the announcement by the Westminster government that its lawyers had declared the policy illegal.

But with alcoholic drinks industry bodies yesterday saying that a legal challenge to the SNP’s minimum pricing plans was now “expected”, Mr McLean warned of a “very finely balanced” outcome in what promises to be a landmark case if it comes before judges in Luxembourg.

Mr McLean’s intervention came as Scotland’s health secretary Nicola Sturgeon published the SNP’s Minimum Pricing Bill, which she promised would “raise the price of the cheap supermarket white ciders, lager and value spirits sought out by problem drinkers”.

However, the SNP was criticised by Labour’s public health spokesman Dr Richard Simpson, who claimed the policy, which was blocked by opposition parties in the last parliament, would mean a £140 million “annual windfall for big supermarkets”.

Dr Simpson also accused the Nationalists of trying to “shut down debate”, as the government said it would not publish a new proposed minimum price until it had obtained the updated results of an original survey by the University of Sheffield into the harmful health affects of alcohol abuse.

The Labour MSP also criticised the SNP for not publishing details of its legal advice on minimum pricing, a policy he said was not “some sort of magical silver bullet” to tackle alcohol abuse.

Dr Simpson said: “This bill is a lost opportunity, deliberately designed by the SNP to shut down debate on what is one of the most pressing social problems in Scotland today.”

Meanwhile, Mr McLean said that the SNP government’s decision not to set a minimum price until the bill progressed through the Scottish Parliament was “very significant” for any possible legal challenge to the policy.

He said that the Scottish Government had “done its homework” in preparing the case for minimum pricing, but warned that European judges may fear that other countries would follow Scotland’s example.

Mr McLean said: “It’s a really borderline case. European law says that the health exception can’t be used as an excuse, but no-one has ever put up a fight on this issue before.

“It’s very significant that the Scottish Government has gone back to do another Sheffield study and is looking at this closely.

“But there might be a concern that if it was decided that this was the right way to go that it would create a precedent for it being something that everyone does and this might be viewed as a major problem.

“The court might be afraid that if it lets this go through that this will be done all over Europe. The point of the law of the EU is to let goods flow, with no borders. It’s too close to call.”

Mr McLean suggested that the only way to resolve the issue was for Scotland’s Court of Session to refer the matter to the ECJ in Luxembourg, which would be able to hand down a judgment the Scottish court would then almost certainly follow.

Meanwhile, Campbell Evans, director of government and consumer affairs at the Scotch Whisky Association, refused to rule out a legal challenge to minimum pricing.

He said: “The Swiss government looked at this a couple of years ago and the advice it took was that minimum pricing was illegal in terms of Switzerland’s treaty obligations with the EU.

“Our view is that the principle is quite clear. Everything will be looked at. No decision has been made. Lots of people will look at this. We’ll have to wait and see.”

Ms Sturgeon appealed to opposition MSPs to back minimum pricing, which will not contain the sunset clause proposed in the last parliament – a measure that would have meant Holyrood had to renew the legislation to ensure it was workable.

She said: “Scotland’s unhealthy relationship with alcohol is one of the most pressing public health challenges facing us as a nation and we need to take action to tackle it. Here we have a second opportunity to add the missing piece in the legislative jigsaw – introducing minimum pricing. I urge my parliamentary colleagues to take it.

“By setting a minimum price for a unit of alcohol, we can raise the price of the cheap supermarket white ciders, lager and value spirits sought out by problem drinkers.”

Meanwhile, a SNP government spokesman yesterday said that all legal advice to the administration was “confidential” and that the government’s minimum pricing bill was “legally competent and sound”.

The UK’s public health minister Anne Milton previously told Westminster’s Science and Technology Committee that minimum-pricing legislation is likely to contravene European free trade legislation.