The Supreme Court Has Made It Clear

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This is the fourth, and final, substantive judgment in this litigation. ] CSIH 77, also upheld the lawfulness of MUP. The SWA’s appeal was perhaps inevitable, but after a hearing in July 2017, the final judgment has largely confirmed the findings of both Scottish courts that the policy could be justified on the basis of the protection of public health. Much of the Supreme Court judgment contains an, at times detailed, analysis of the public health evidence presented to justify the introduction of MUP. The CJEU addressed the appropriate time frame for the assessment of a measure and Lord Mance similarly adopted a permissive attitude to the question. ‘refine the aims advanced and to demonstrate that, on the material now available, the proposed measure is justified, even if it only meets an aim which is narrower than, but still falls within the scope of those originally advanced’. Lord Mance opened with a consideration of the guidance set out by both AG Bot and the CJEU in relation to justification and the proportionality of restrictions under EU Law.

‘can it be that, provided an objective is reasonable and can only be achieved in one way, it is irrelevant how much damage results to the ordinary operation of the EU market? ]. This rejection of a ‘balancing’ approach between the competing values of health and the market was important. The final decision on proportionality – after consideration of the new evidence and argument before the Supreme Court – was clear. ‘A critical issue is, as the Lord Ordinary indicated, whether taxation would achieve the same objectives as minimum pricing. This conclusive finding that MUP is the most effective way of targeting a particular pattern of problem drinking in Scotland reflects the same analysis of the evidence by the Lord Ordinary and Lord President in the Court of Session. The other key point that Lord Mance went on to make concerned the respective roles of the Scottish Parliament, in setting health policy priorities, and the court, in assessing the proportionality of a measure. As the ‘balancing’ approach, suggested by AG Bot, had ready been rejected it is perhaps not surprising that Lord Mance restricted the role of the court.

‘the Scottish Parliament and Government have as a matter of general policy decided to put very great weight on combatting alcohol-related mortality and hospitalisation and other forms of alcohol-related harm. ‘That minimum pricing will involve a market distortion, including of EU trade and competition, is accepted. The Supreme Court’s heavily reliance on the evidence base behind the adoption of MUP is unsurprising. The CJEU stressed the importance of evidence to justify a measure in both the SWA reference and Case C-148/15 DPV. ] EWHC 1169 (Admin). I have been following this case for a very long time and my initial reaction is that it is a good conclusion. The Supreme Court has made it clear, much more so than the CJEU did, that a convincing and well evidenced public health argument should, and hopefully now will, win out over trade or competition concerns. The proportionality test still has teeth. A Member State seeking to justify a measure must be clear about its aim, and it must have a good evidence base to explain and justify the effectiveness of the intervention it has chosen. But it now appears that the courts, in the UK at least, will now give some deference to the policy choices of the legislature if they stand up to that scrutiny. It is not the courts role to second-guess policy in these areas, but I am sure that we will see new challenges if other jurisdictions attempt to introduce similar policies. Other administrations may see this case as clearing the way, but they should be careful as the decision in this case was tied to a detailed analysis of a particular Scottish problem. It is not the case that the same intervention will be appropriate or necessary everywhere else.

] EWHC 2768 (Admin). On Day 2, the Supreme Court heard arguments from Lord Pannick QC (acting for Gina Miller). Lord Pannick’s submissions extended into Day 3. Also on Day 3, the court heard Dominic Chambers QC (acting for Mr Dos Santos). On Day 4, Helen Mountfield QC appeared for interested parties Graham Pigney and others; Manjit Gill QC appeared for interested parties AB, KK, PR and children and then Patrick Green QC for the “ex pat” interveners George Birnie and others. The case for Gina Miller was that the prerogative power to enter into and terminate treaties does not allow ministers to nullify statutory rights and duties. In any event, Parliament did not intend that the rights and duties, which it had created by the ECA72, could be nullified by Ministers acting in the international plane. The court had heard that the ECA72 was a conduit creating only rights and obligations that were contingent on the prerogative power to terminate.

The ECA72 has constitutional status and it created a new source of domestic law and gave that source priority. Lord Sumption asked whether “rights and duties” was being confined to those in the substantive law or did it extend to those that would be lost if the UK left the EU. Lord Pannick said that the two were connected and he was not limiting rights and duties because the ECA72 created a new source of rights and duties and this was part of its constitutional status. At pg 145 – it was inherently unlikely that Parliament, when it enacted the ECA72, intended that something so fundamental could be set aside by a Minister. At page 146, Lord P mentioned “debate” in 1972 about whether Parliament itself could revoke the ECA72. The “debate” was part of submissions made by Mr Blackburn – (Blackburn v Attorney General 1971). It pointed toward the unlikelihood of Parliament just leaving matters to Ministers. It would require the strongest indications in the materials for the court to accept any such proposition.

Lord P then put 7 reasons which he would develop in argument. 2. He would submit that prerogative treaty power could not be used to nullify statutory rights and obligations or to nullify a new constitutional order that Parliament had created. Lord P’s case was that there was NO relevant prerogative power. 3. The court had to have regard to important principles of statutory interpretation (pg 148). The appellant had to show that Parliament conferred a power to nullify a statutory scheme. 5. The appellant was wrong regarding De Keyser as somehow setting out an exclusive principle as to the limits on the use of prerogative power. Lord P said there was no relevant prerogative power here and, in any event, ex parte Fire Brigades Union recognised that it was not open to Ministers to use prerogative powers to frustrate a statutory scheme. 6. The reliance on post 1972 Acts did not assist the government. 7. It was no answer to say that Parliament can choose to be involved.

Notification will cause the nullification of statutory rights and obligations and a statutory scheme of fundamental importance. Only Parliament could authorise that. [Note: The notification will certainly put in train a process that will eventually lead to the removal of EU-based rights and obligations. Page 151, Lord P turned to his first point. The 2015 Act said nothing about the consequences of the referendum decision. When Parliament wishes to make a referendum binding it says so. Mr Eadie had said that the decision was given to the people. This was difficult to understand when government had resisted an amendment to give legal force to the referendum and explained why they were doing so. Lord P then referred to the Parliamentary debate which prompted discussion about the authority for doing this. The discussion here continued to page 154 and please see here the consideration of this point in this previous post.

The key point in the debate was, for Lord Pannick, that the Minister had said that the referendum was advisory. The 2015 Act did not address any consequences, far less, did it address the process by which the UK would leave the EU (pg 155). Whatever the scope of prerogative power, it is unaffected by this Act. The referendum result may justify the use of the prerogative power to notify BUT the question for the court is one of law about whether the appellants have a prerogative power to notify. The political significance of the referendum is not a matter for the court because it is irrelevant to the issue of whether there is prerogative power to set aside the ECA72. Pages 156 and 157 discuss the point about the same question being put to Parliament. Lord P argued that it would necessarily be entirely the same question because Parliament may choose to do other things.