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This is a live blog of the second and final day of the hearing of the appeal brought by the Scotch Whisky Association and others, concerning the lawfulness of the Scottish Government’s plans to introduce minimum pricing for alcohol. Please refresh the UKSC Blog homepage throughout the day in order to get the latest posts. Today’s live blog team comprises Emma Boffey, Morag McClelland, Gregor Hayworth and Sarah McIvor, from CMS. 

1945: Day 2 Summary

The appeal has now concluded. The Justices will now consider matters and issue their decision in due course.

This morning, we heard further from the Lord Advocate, who continued his submissions, which he started yesterday afternoon. During the course of his submissions today, the Lord Advocate presented a vivid picture of what the Scottish Government says is Scotland’s acute problem with alcohol consumption, and in particular, “cheap alcohol”. The Lord Advocate’s position was that the policy is targeted at hazardous and harmful drinkers, who are most at risk of alcohol related harm. The Lord Advocate says the policy is focused on addressing the greatest harm, in a way which targets those most at risk. His submission is that minimum unit pricing achieves this, whereas alternative measures, such as increasing tax, will disproportionately affect the moderate drinkers in the population, who the policy did not seek to target.

The Lord Advocate presented some startling statistics during the course of his submissions: he told the Court that the policy is anticipated to save 2,000 lives and 38,000 fewer alcohol related hospitalisations over twenty years. He submitted that any balancing exercise in terms of the impact on EU trade should be considered against that. In his submissions, the health benefits heavily outweigh any impact on EU trade. The Lord Advocate told the Court that he considers that a generalised increase in taxation cannot achieve the primary target of the legislation as effectively as minimum pricing. In his submission, there is no alternative measure which would be equally as effective minimum pricing.

This afternoon, the Court heard from Philip Simpson QC, on behalf of the UK Government. In his submission, there is significant uncertainty regarding the consequences of implementing any of the alternative measures suggested by the appellants and he submitted that it is doubtful whether such measures would achieve the aims of protecting hazardous and harmful drinkers.

Finally, the Court heard this afternoon from Aidan O’Neill QC, senior counsel for the appellants, who offered a reply to the submissions of the Scottish Government and UK Government. He told the Court that the respondents had failed to satisfactorily answer his key question: why not tax?  In his submission, a less restrictive option is available, which can achieve what minimum unit pricing can, without distorting the market and while also being better at protecting the population as a whole.

Mr O’Neill QC concluded his submissions by noting that this case is not about preventing the Scottish Government tackling Scotland’s alcohol problem, but that it was about enforcing the law. In his submission, the Scottish Government can and should consider the alternative option of taxation.

We hope you have enjoyed following the live coverage of this appeal on the UKSC Blog this week. We will be posting more commentary about this case both pre- and post-judgment, so if you’ve enjoyed our commentary over the past few days do subscribe to receive updates on new posts.

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1505: The Court thanks all counsel for their submissions, and to the solicitors involved in preparing the case. The Court is now adjourned and will issue its decision in due course.

1503: Mr O’Neill QC has now concluded his submissions in reply. The Lord Advocate says he will not offer his own reply, but does direct the Court to an additional case authority which he says suggests assists the Court on the taxation question before it.

1458: Mr O’Neill QC says this case is not about preventing the Scottish Government tackling Scotland’s alcohol problem, it is about enforcing the law and considering the option of taxation. He says they can and should consider this. He says that many jurisdictions will be following this case, not because they want to stop the Scottish Government tackling the alcohol consumption problem, but because it is about international trade.

1457: Mr O’Neill QC says the Court should not be fooled by minimum unit pricing being simple: the Court needs to consider how it is applied and taxation is equally as simple in its application.

1454: Mr O’Neill QC says the question of whether the same effects can be achieved by taxation is a simple economic question. He says the evidence on economic impact is uncontradicted: minimum unit pricing at 50 pence will have direct impact on individual alcohol producers.

1451: Mr O’Neill QC is addressing the Scottish Government’s position that alcohol is not an ordinary consumer product, because of its risk of health effects. He says the Scottish Government are of the view that consuming alcohol is still dangerous, even if you are a moderate drinker.

1447: Mr O’Neill QC says that is not evidence, and there should be no assumption in judicial knowledge, about the possible disbenefit on moderate drinkers.

1445: Lord Reed is pressing Aidan O’Neill QC on this point. He observes that the Lord Advocate has provided figures on the substantial price rises which would be needed, if a tax was selected, rather than minimum unit pricing, to achieve the same floor price.

1443: Mr O’Neill QC renews his submissions that the economic effects of increased tax on moderate drinkers are not relevant; and he says that this disbenefit has never been proven in any effect. He says it is simply “assertion”.

1442: Lord Mance is querying why you cannot consider economic effects, as this is a health measure, which brings a disbenefit to moderate drinkers.

1439: Mr O’Neill QC says that the possible economic effects on moderate drinkers are not a permissible consideration under EU law.

1436: Mr O’Neill QC is now addressing Lord Sumption’s earlier comments on the possible undesirable effects of taxation on moderate drinkers.

1434: Mr O’Neill QC says that the Scottish Government has failed to address how the policy interacts with the Common Agricultural Policy in the BRIA.

1433: Mr O’Neill QC is now addressing the BRIA. He says it is not an economic analysis, but an economic prediction.

1431: Mr O’Neill QC is submitting that the policy needs to be in accordance with the limits imposed by the EU treaties. He says that is not something on which there is a margin of appreciation to the state. He asks the Court: what are the limits of the treaties?

1430: Mr O’Neill QC says the legitimate way to achieve this is to raise pricing for everyone, through imposing taxation. He says the Scottish Government cannot force “cheap vodka and cider” to raise their prices, to that of another product.

1428: Mr O’Neill QC says that discrimination against products is not permitted under EU law, just because of a perception of those products being “cheap“. He says that the state is not permitted to regulate pricing in the free market, simply on the basis that the products are “non-desirable“.

1427: Mr O’Neill QC is submitting that the articulation of the legitimate aims of the Scottish Government have shifted a number of times throughout the course of this litigation.

1425: Mr O’Neill QC is now addressing the Court on what the Scottish Government really meant by the term “hazardous and harmful drinkers” and whether this was targeted at the poorest sections of Scottish society.

1424: Mr O’Neill QC says that hazardous and harmful drinkers increase in number, with affluence. He says that if you are interested in protecting the hazardous and harmful drinkers, tax achieves this better, compared to minimum unit pricing.

1422: Mr O’Neill QC says tax can achieve what minimum unit pricing can, without distorting the market. He also says that tax is better at protecting the population as a whole.

1420: Mr O’Neill QC submits that “this means, I win“, because a less restrictive option (tax) is available.

1419: Mr O’Neill QC outlines the four cases on this issue. He says that this point was first raised by the appellants five years ago, but was only now accepted by the Lord Advocate in the last hour.

1418: Lord Reed is asking what the case law on this issue tells the Court on how to determine the tax base for such a Scotland-specific tax.

1417: Lord Mance asks whether you could have a specific tax in Scotland for different bands of products?  Mr O’Neill QC replies, yes, this is possible.

1416: Mr O’Neill QC tells the Court that the Lord Advocate now accepts, for the first time, that an excise duty specific to Scotland could be applied, in theory. Mr O’Neill QC says, up until one hour ago, the Scottish Government’s position was there was so such power.

1413: Mr O’Neill QC says the respondents have explained why they do not want to increases taxes, but have not addressed why they cannot. Mr O’Neill QC says the correct question is: can tax be used?

1411: Mr O’Neill QC says his general response remains: why not tax?  Yesterday, he asked that question a number of times in his submissions. He says he has had no satisfactory response to that question from the respondents.

1410: Mr O’Neill QC says there is no room for doubt or deference in this case: the European Court of Justice has given its opinion already and Mr O’Neill QC says the UK Supreme Court is bound to apply that. He says it is an issue of how EU law is to be applied.

1407: Mr O’Neill QC tells the Court that, on appeal, the Inner House of the Court of Session heard argument over eight days. Mr O’Neill QC quotes from the opinion of the Inner House; he tells the Court that one of the issues the Inner House considered was the margin of discretion available to the Scottish Parliament to consider less disruptive alternative measures.

1403: Aidan O’Neill QC, senior counsel for the appellants, is now offering his reply.

1358: Welcome back to the UKSC Blog as the final afternoon of the appeal gets underway shortly.

1303: Court adjourns until 1400.

1301: Philip Simpson QC concludes his submissions.

1257: Lord Mance requesting further clarification regarding Philip Simpson QC’s comments regarding the Court of Justice’s judgment.

1254: Philip Simpson QC stating that the key passages of the Court of Justice’s judgment do not refer to a third stage, which must be considered when working out whether the test of proportionality is met.

1241: Philip Simpson QC says that there is significant uncertainty regarding the consequences of implementing any of the alternative measures and it is doubtful whether such measures would satisfy the measure of protection discussed previously.

1237: Philip Simpson QC submitting that if the member state concludes that the second limb of the proportionality test is not satisfied by the alternative measures then the alternative measures cannot be said to have met the desired measure of protection.

1228: Philip Simpson QC stating that the appellant’s first ground of appeal should be refused. If the Court finds that the Lord Ordinary did not make any error in law then no further consideration to the appellant’s grounds of appeal is necessary.

1211: Gerry Moynihan QC stating he has nothing to add to The Lord Advocate’s submissions.

1203: The Lord Advocate submits there has been no error by the Lord Ordinary in the Outer House or in the Inner House and that the Appeal should be refused.

1200: On a hypothetical basis, in response to Mr O’Neill’s submissions yesterday, the Lord Advocate accepts that one cannot rely on internal constitutional arrangements of a country to justify a breach of EU law. In practice, if the Scottish Government were to consider that a tax or excise duty were an appropriate option, it would engage with the UK Government to give the Scottish Government power to introduce such a measure.

1158:  The Lord Advocate emphasises that minimum pricing is a tool to ensure that a floor is fixed to the retail price of alcohol and thereby protects those consumers who are most at risk of alcohol related harm.

1155: The Lord Advocate invites the Court to read the Opinion of the Lord Ordinary in the Outer House who correctly articulates the aim, addresses necessity and considers BRIA. The Lord Ordinary makes a variety of observations, including that one must strike a balance and that raising taxes would achieve a materially different outcome.

1150: The Lord Advocate submits that the key to this case is the proper understanding of the targeted aim and, on that basis, the Scottish Parliament and  Government were entitled to take the view that tax measures would not be effective.

1144: The Lord Advocate refers to the BRIA document which he took the Court to yesterday in which one can see that the Scottish Government considered carefully whether the particular targeted aim could be achieved as effectively by a general increase in taxation. The target is to reduce alcohol consumption for those in Scotland who are at particular risk of harm.

1135: Lord Hodge considers the point that there is a level of discretion afforded to individual Member States to consider what is in their own interest, for example public health, and the means to achieve that objective but it requires the Court to apply the proportionality test and whether there is a less intrusive or restrictive alternative measure available which would be equally effective. The Lord Advocate response is that, in his submission, there is no alternative measure which would be equally effective.

1132: Lord Sumption considers that there is a margin of judgement as against two potentially conflicting values. In considering the actual consequences of the measure, it’s a question of factual analysis and prediction. If the Scottish Government reasonably but wrongly thinks that tax increases would not be as effective, it’s very difficult to say that it’s not compatible with the EU Treaty.

1128: The Lord Advocate considers that a generalised increase in taxation cannot achieve the primary target of the legislation as effectively as minimum pricing.

1123: Lord Sumption questions whether the real exercise is not to balance the impact on public health against EU trade, but whether a corresponding impact can be achieved by a different measure.

1119: The Lord Advocate reviews submits that the Inner House was entitled to conclude that the impact of the measure on intra EU trade would be relatively minor. If required to engage in any balancing, in his submission, the saving of 2000 lives over 20 years and the reduction of 38,000 alcohol related hospitalisations outweighs a relatively minor impact on EU trade.

1110: The Lord Advocate reviews data to show that the legislature did weigh up the economic influences of the measure, in particular in the wine market. The Sheffield study shows that minimum pricing will result in a reduction in consumption across all categories of around 3.5%.

1103: The Lord Advocate submits that any balancing exercise in terms of the impact on EU trade should be considered against against a measure that is anticipated to save 2000 lives.

1056: The Lord Advocate explains this is an “experimental” piece of legislation, which will expire unless renewed at the end of six years. The Lord Advocate says this is an important point, in considering the uncertainties on the marketplace and how consumers will respond.

1055: Lord Mance is pressing the Lord Advocate on whether he needs to establish how the market will be distorted.

1054: The Lord Advocate accepts the policy will have an impact on the market, but precisely what those effects will be is unknown. He also explains that, if this measure is properly justified on health grounds, then the fact that it distorts the market is nevertheless justified under EU law.

1052: The Lord Advocate explains that minimum unit pricing is straightforward and is not susceptible to market manipulation or “trading-down”.

1051: The Lord Advocate says that increasing tax will disproportionately affect a segment of the population, which the policy did not seek to target. The Lord Advocate explains that the Scottish Parliament wanted to target those most at risk. Lord Mance describes this as the “over-kill” effect.

1049: Lord Sumption says it is “pretty clear” that if you increase taxes, you can achieve a reduction in consumption. The Lord Advocate does not dispute this. Lord Sumption suggests the critical question is what is the relevance (if any) of the impact on those that would be affected by a tax increase, but not particularly affected by minimum pricing.

1047: The Lord Advocate notes that the short, critical issue in this case is the correct characterisation of the aim of the policy. He says the aim is primarily targeted at hazardous and harmful drinkers, who are most at risk of alcohol related harm. The Lord Advocate says the policy is focused on addressing the greatest harm, in a way which targets those most at risk.

1045: Lord Mance is questioning the Lord Advocate on what the updated BRIA would cover. Lord Mance asks how the Court can assess the market impact: he asks, is it truly “unknown”?

1044: The Lord Advocate says there has been a recent shift in the market. He submits that the market has shifted recently towards increased consumption of more expensive alcohol overall. He explains that an updated BRIA will be required, if the appeal is refused and the Order is presented to the Scottish Parliament.

1041: The Lord Advocate submits that Scotland has a particular problem in relation to the consumption of “cheap alcohol“.

1039: The Lord Advocate is now addressing a further question from Lord Mance yesterday on the statistics in the Sheffield University February 2016 study. The Lord Advocate says it is not appropriate to assume that data applicable to England & Wales is equally as applicable to Scotland. He explains that Scotland’s consumption of alcohol is different and that there is a particular problem in Scotland relating to “cheap vodka“.

1035: The Lord Advocate begins by addressing some outstanding points from yesterday. Lord Mance had asked about the material before the lower courts, which the Lord Advocate explains is also available in the appeal bundle. The Lord Advocate explains that his written case replicates the submissions before the Inner House of the Court of Session.

1027: Counsel are assembled; we await the Justices taking their seats for day 2.

1019: Good morning, as we return on the UKSC Blog for live coverage on the second and final day of the appeal. Court is expected to get underway at 1030, with the Lord Advocate continuing his submissions.

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Welcome to Day 2 of the UKSC Live Blog coverage of the appeal brought by the Scotch Whisky Association, spiritsEUROPE and CEEV, concerning the Scottish Government’s plans to introduce minimum pricing for alcohol in Scotland.

The Alcohol (Minimum Pricing) (Scotland) Act 2012 introduces a requirement that ‘Alcohol must not be sold… at a price below its minimum price,’ in an effort to address increased consumption. The Scottish Ministers have prepared a draft order specifying a minimum price per unit of 50 pence, but neither the 2012 Act nor the Order have been brought into force pending this appeal.

The appellants argue that the new provision falls foul of European Union law. They argue that it is a disproportionate measure, an unlawful restriction on free movement of goods and also restricts the proper functioning of the Common Agricultural Policy on the production, marketing and sale of wine. They argue that alternative measures would be less disruptive to free trade and competition across the EU single market, yet still be effective in achieving the Scottish Government’s aims to protect public health.

The case has a lengthy procedural history before the Courts. At first instance, the petition for judicial review was refused, a decision which was then appealed. The case was then subject to a preliminary reference from the Court of Justice of the EU, before the First Division of the Inner House of the Court of Session refused the appeal in light of that reference.

The appeal is being heard by a bench of seven: Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Sumption, Lord Reed, Lord Hodge

There are a number of ways to engage with the proceedings next week. The case will be streamed live from the UK Supreme Court on their website.

This post will also be updated throughout the day by a team of lawyers from CMS please so refresh this post regularly in order to keep up to date with the latest content. Today’s team comprises Emma Boffey, Morag McClelland, Gregor Hayworth and Sarah McIvor, from CMS.