Tobacco vending machines and legislative competence
15 October 2012
In Sinclair Collis v The Lord Advocate  CSIH 80, the Inner House rejected a challenge to the legislative competence of the tobacco vending machine ban enacted by Section 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 (“TPMSSA”).
Sinclair Collis, a tobacco vending machine company, argued that Section 9 was outwith the competence of the Scottish Parliament on two bases:
(i) incompatibility with EU law, in that it was said to infringe free movement of tobacco vending machines under Article 34 of the Treaty on the Functioning of the European Union (TFEU), and not be justified under Article 36
(ii) incompatibility with Article 1 of Protocol 1 of the European Convention on Human Rights, in that it was an unjustified interference with rights of property in tobacco vending machine companies.
The court rejected both challenges. In relation to the EU challenge, the court considered that there was scope for reasonable doubt as to whether Section 9 fell within Article 34. But it found it did not need to refer the matter to the European Court as even if Section 9 was within Article 34, it was justified under Article 36 in the interests of public health. It had been argued by Sinclair Collis that Section 9 was disproportionate as there was an alternative less restrictive to trade in the form of age restriction mechanisms on tobacco vending machines. The court found that the objective was legitimate, and that Section 9 was a proportionate means of achieving it because age restrictions had been rejected as insufficiently effective and the state was entitled to pursue the objective by means of simple rules that were readily understood and easily managed and supervised.
In relation to the human rights challenge, although the court found that Section 9 was a control of use of vending machines, it found that any interference with property rights protected by Article 1 of Protocol 1 was justified. Section 9 struck a balance between the public interest in maintaining good public health and the petitioners’ private economic interest in its use of vending machines.
Three members of Axiom acted; James Wolffe QC for Sinclair Collis, and James Mure QC and Anna Poole for the Lord Advocate.
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