SWA call for judge to rule minimum pricing of alcohol unlawful

A judge has been urged to follow the “highly persuasive” opinion of the European Commission and outlaw controversial plans by the Scottish Government to implement minimum alcohol pricing.

• Implementation of minimum pricing suspended in light of legal challenge

• European Commission view not legally binding

• SWA argue minimum pricing is unlawful

Legislation to introduce a 50p per unit charge is being challenged by the Scotch Whisky Association at the Court of Session in Edinburgh, and the association’s counsel highlighted the commission’s opinion at the opening of the hearing.

The commission has stated that the Alcohol (Minimum Pricing) (Scotland) Act 2012 would breach European trade law, though Aidan O’Neill, QC, conceded that Lord Doherty was not obliged to follow the commission’s advice.

Mr O’Neill said: “A number of member states gave their observations and the commission produced an opinion, and this is an important issue and one we particularly stress.

“(The Scottish and UK governments) suggest the opinion is not actually binding on this court. That is correct, but it is a considered opinion taking into account the broad European perspective. Although the expression of the opinion is not a formal ruling and does not bind the court, it is highly relevant and, we say, highly persuasive evidence which may assist the court in reaching its conclusion. It is an authoritative view of what European law requires.”

Introduction of the legislation - referred to as the 2012 ASP - has been suspended while the challenge by the SWA, with European spirits and wine organisations, was mounted in court, and the European Commission examined the proposal.

The SWA argued that the proposal was unlawful and ministers had acted beyond their powers because it breached trade provisions of both European treaties and the Act of Union.

“It is not established that the 2012 ASP will be capable of reducing consumption of alcoholic drinks by harmful and hazardous drinkers, nor of leading to the overall prevention of harm to, or the protection and improvement of, public health among the general population. Those effects are at best speculative,” said the SWA.

“The first premise of the 2012 ASP is that prevention of harm and the improvement of public health are contingent on a decrease in alcohol consumption generally. The second premise is that an overall decrease in consumption of alcoholic drinks generally, and by harmful and hazardous drinkers in particular, is contingent on the imposition of a (market distorting) minimum price. These are not established in fact.”

SWA added that the Act of Union created a common market within Britain, but the 2012 ASP would have an impact on cross-border trade in alcohol, and it could “readily be anticipated” that the difference in price in Scotland and in England would lead to “alcohol tourism”.

The Scottish Government replied that, far from the premise of the 2012 ASP being speculative, there was “strong and consistent international evidence” that price increase had a significant effect in reducing demand for alcohol.

“The purpose of the legislation is the protection of the public from alcohol-related health and social harms by reduction in consumption, particularly alcohol sold cheaply relative to its strength. The provisions require only those products priced cheaply relative to their strength to be raised in price,” it added.

“There is strong and well established evidence that consumption of alcohol in Scotland is excessive and that this gives rise to health and social problems. Evidence also suggests that targeting cheap alcohol rather than seeking to increase the price of alcohol generally - by taxation - is likely to be a more effective way of achieving a reduction in harmful consumption of alcohol. That is because alcohol that is inexpensive relative to its strength tends to be consumed by problem drinkers and is attractive to young people. The effect of the provisions on those who drink moderate amounts of alcohol will be marginal.”

The hearing is due to last two weeks.