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On appeal from: [2012] CSIH 9.

The judgment considers whether the Tobacco and Primary Medical Services (Scotland) Act 2010, ss 1 and 9 are outside the legislative competence of the Scottish Parliament. S 1 of the 2010 Act prohibits the display of tobacco products in a place where tobacco products are offered for sale and s 9 prohibits vending machines for the sale of tobacco products.

The Supreme Court unanimously dismissed Imperial Tobacco’s appeal against the judgment of the Inner House of the Court of Session (Scotland). Imperial Tobacco had sought to argue that: (1) ss 1 and 9 relate to “the sale and supply of goods to consumers” and “product safety”, being matters reserved to the UK Parliament under the Scotland Act 1998 and on which the Scottish Parliament cannot legislate; and (2) ss 1 and 9 modify the law on reserved matters.

In a leading judgment given by Lord Hope, the Supreme Court held that ss 1 and 9 are within the legislative competence of the Scottish Parliament. The Court held that in assessing whether a provision of an Act of the Scottish Parliament is outside its competence, there were three principles to follow, being: (1) the question of competence according to the particular rules in the 1998 Act; (2) the interpretation of those rules in the same way as any other rules that are found in a UK statute; and (3) that the description of the 1998 Act as a constitutional statute cannot be taken, in itself, to be a guide to its interpretation.

Applying these principles the Court held that the purpose of the offences that ss 1 and 9 create is to discourage or eliminate the sale or supply of tobacco products, not to regulate how any sales are to be conducted so as to protect the consumer from unfair trade practices, nor is their purpose anything to do with the standards of safety to be observed in the production and sale of tobacco products.

For judgment, please download: [2012] UKSC 61
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII