Scottish Parliament has powers to ban cigarette vending machines and tobacco displays
12 December 2012
In Imperial Tobacco v Lord Advocate 2012 UKSC 61, the Supreme Court found that Sections 1 and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2012 (“TPMSSA”) were within the legislative competence of the Scottish Parliament.
It was argued by Imperial Tobacco that Sections 1 and 9 related to matters reserved to the UK Parliament, in particular reservation C7(a) (the regulation of sale and supply of goods and services to consumers, and C8 (product standards, safety and liability). It was also argued that Sections 1 and 9 were outwith competence because they modified the law on reserved matters, in the form of two sets of regulations enacted under Section 11 of the Consumer Protection Act 1987 concerning oral snuff and tobacco.
The Supreme Court rejected these challenges. The decision of the court was given by Lord Hope, and contains guidance on interpretative principles applicable when Acts of the Scottish Parliament are challenged, as well as the scope and meaning of the reservations invoked by the appellants. The court found that Sections 1 and 9 did not relate to matters reserved in C7(a) and C8, nor did they modify the law on reserved matters. The Supreme Court also addressed (obiter) the issue of competence where a provision has more than one purpose, one of which is reserved, holding that if the reserved purpose is merely a consequence of a devolved purpose rather than an end in itself, the enactment will be within competence.
The legislative competence of Section 9 TPMSSA was challenged on separate grounds (compatibility with EU law and Convention rights) in Sinclair Collis v Lord Advocate  CSIH 80. That challenge was rejected by the Inner House, and the case has not been appealed to the Supreme Court.
The Dean of Faculty, Richard Keen QC, appeared on behalf of Imperial Tobacco and Axiom Advocates James Mure QC and Anna Poole QC appeared on behalf of the Lord Advocate.
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