Imperial challenge to Scottish Parliament act over tobacco displays


The UK Supreme Court will this week be the forum for another effort to challenge the lawfulness of an act of the Scottish Parliament. It would seem that the score is presently Holyrood 2, Challengers 0.

Four days have been designated to the challenge by Imperial Tobacco, stating that sections 1 and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 are out of the legislative competence of the Scottish Parliament as established in the 1998 Scotland Act.

The Tobacco and Primary Medical Services (Scotland) Bill got royal assent on 3 March 2010. Section 1 of the Tobacco and Primary Medical Services (Scotland) Act 2010 (the TPMSSA) deals with the ban of tobacco displays and section 9 pertains to the restrcition of vending machines for the tobacco products sale.

In March 2010, Imperial Tobacco required judicial review of sections 1 and 9 of the TPMSSA, stating that the provisions are out of the legislative competence of the Scottish Parliament and, consequently, that the provisions be put aside.

While issues of public health are devolved, they suggested, customer protection and regulation of trade are set aside. The argument was not successful.

Imperial Tobacco, the maker of Davidoff cigarettes, appealed arguing the proposition that sections 1 and 9 of the TPMSSA refer to matters set aside to the United Kingdom parliament or, that they proposed to change provisions guarded from change by the Scotland Act 1998.

The appeal was heard in February 2012 and was dismissed by three judges – Lord Hamilton (Lord President), Lord Reed and Lord Brodie.

Since February Lord Reed has been designated to the Supreme Court and will not be able to sit on.

This week’s challenge will be only the third time on which the UK Supreme Court has been explicitly invited to rule that an act of the Scottish Parliament is ultra vires.

AXA and other insurance firms challenged The Damages (Asbestos-related Conditions) (Scotland) Act 2009 which presented that pleural plaques and certain other asbestos-related conditions were actionable in Scotland for the reasons of damages in the law of personal injury. The AXA appeal was conducted by Richard Keen and failed, although the Supreme Court permitted itself room to manoeuvre in the future by saving its right to get involved in extreme cases of incongruity by the Scottish Parliament.

In 2010 the Supreme Court ignored a challenge in the cases of Martin and Miller to sentencing provision in road traffic cases because of that road traffic law is reserved. Nevertheless, the Supreme Court by 3-2 decided that criminal law is devolved as regards sentencing, and that was the main goal of the law.

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