The Supreme Court has to decide whether the Alcohol (Minimum Pricing) (Scotland) Act 2012 is incompatible with European Union law and therefore unlawful under the terms of the 1998 Scotland Act.
Scottish ministers have prepared a draft order specifying a minimum price per unit of 50p, but neither the 2012 Act nor the order have been brought into force pending the legal proceedings.
A QC for the Scotch Whisky Association (SWA) has told the Supreme Court in London there are a variety of better ways to achieve the Scottish Government’s aim.
Scotland’s Health Secretary Shona Robison said: “We’re looking forward to the judgment of the Supreme Court on Minimum Unit Pricing and if it is the positive outcome we hope for, we will move as quickly as is practicable to put the policy in place.”
The SWA is arguing in a two-day hearing in London that minimum unit pricing (MUP) is “disproportionate” and illegal under European law.
Aidan O’Neill QC told seven justices: “It is a political decision that pricing should be used to decrease alcohol consumption and improve public health.
“We point out that there are a whole number of ways in which pricing can legitimately be used in accordance with EU law to achieve those aims.”
Mr O’Neill said that, in principle, raising excise duty might be one way of increasing the price and achieving the same health benefits.
The fresh challenge comes after the Court of Session in Edinburgh, Scotland’s top civil court, rejected the SWA’s appeal against the measure in October. But judges at the same court later gave the whisky body permission to take its fight all to the UK’s top court.
The move is the latest step in a legal wrangle that began in 2012 over the proposals, which has delayed implementation of a policy aimed at tackling Scotland’s drink problem. The SWA says alternative pricing measures would be less disruptive of free trade and less distortive of competition across the EU single market, and would have at least an equivalent level of effectiveness in achieving the aim of the Scottish Government to improve public health.
The seven justices – court president Lord Neuberger sitting with Lady Hale, Lord Mance, Lord Kerr, Lord Sumption, Lord Reed and Lord Hodge – are expected to take time to consider their decision and will give their judgment at a later date.