Interpreting constitutional legislation: the Imperial Tobacco case
Lord Bracadale's opinion in Imperial Tobacco Ltd Petitioners  CSOH 134 (issued on 30 September 2010) upholds the validity of the Scottish Parliament's legislation prohibiting the display of tobacco products at point of sale and the use of vending machines to sell tobacco products. Along the way he makes a number of striking remarks on the correct approach to the review of Acts of the Scottish Parliament.
Most significant is Lord Bracadale's recognition of the Scotland Act 1998 as a "constitutional statute", the interpretation of which is to be generous and purposive, bearing in mind the constitutional values which the statute was meant to embody. "The court," says Lord Bracadale, "should endeavour to find in the Scotland Act a constitutional settlement which is coherent, stable and workable" (para 3). In construing the scope of reservations of matters from the devolved competence of the Scottish Parliament, "it seems to me to follow from the approach of listing individual reserved matters that each of them should be given a narrow reading; otherwise the specific nature of the approach would not have been necessary" (para 18). In order to determine whether or not sections 1 and 9 of the Tobacco & Primary Medical Services (Scotland) Act 2010 (summarised in the opening paragraph above) fell foul of the reservation of "the sale and supply of goods to consumers" in Schedule 5 section C7(a) of the Scotland Act, it was legitimate to examine the travaux preparatoire of the 2010 Act, including reports to and papers issued by the Scottish Ministers prior to the introduction of the Bill, explanatory notes to the Bill, the policy memorandum that accompanied the Bill and statements by Ministers during the relevant proceedings in the Scottish Parliament. "That review of the background materials, the surrounding documents and the parliamentary debates," Lord Bracadale concluded, "points very strongly towards identifying the purpose of sections 1 and 9 of the 2010 Act as being to reduce smoking of tobacco among children and young persons and thereby improve public health in the long term. That purpose would not relate to a reserved matter" (para 48). He went on to reject a further argument that the provisions in question were beyond legislative competence as modifying a rule of Scots criminal law as it applied to reserved matters or as special to a reserved matter, there being no rule of Scots criminal law being "modified" by the 2010 Act.
Finally, Lord Bracadale turned to an argument that the 2010 Act modified Article VI of the 1707 Acts of Union and was thus contrary to Schedule 1 para 4(2) of the Scotland Act, which prohibits such modification of Article VI so far as it relates to freedom of trade. Article VI reads:
"That all parts of the United Kingdom forever from and after the Union shall have the same allowances, encouragements and drawbacks and be under the same prohibitions, restrictions and regulations of trade and lyable to the same customs and duties on import and export and that the allowances, encouragements and drawbacks, prohibitions, restrictions and regulations of trade and the customs and duties on import and export settled in England when the Union commences shall from and after the Union take place through the whole United Kingdom."
Following Lord Hope's approach in Lord Gray's Motion 2000 SC (HL) 46, Lord Bracadale sought to place Article VI in its historical context, for which he relied on T C Smout's History of the Scottish People 1560-1830 , T M Devine's The Scottish Nation, the Records of the Scottish Parliament website, and Adam Smith's Wealth of Nations. His conclusion is that Article VI was about establishing freedom of trade in the common market created by the 1707 Union. But the 2010 Act did not go against the existence of a common market in the United Kingdom:
"The prohibition on modification of article VI contained in para 1 of schedule 4 to the Scotland Act is in any event restricted to modification of article VI so far as it relates to freedom of trade. The review of the historical context of the Acts of Union, the ordinary meaning of the phrase "freedom of trade" and what was said by the Secretary of State in the parliamentary debates on the Scotland Act, all taken together, lead me to conclude that the prohibition on modification of article VI of the Acts of Union contained in para 1 of schedule 4 to the Scotland Act is restricted to interference with the common market created by the Union. Understood in this way, the prohibitions and restrictions introduced by sections 1 and 9 of the 2010 Act do not interfere with the common market created by article VI of the Acts of Union. I did not find consideration of the Directive 2001/37/EC to be of assistance. In any event, the removal of barriers contemplated by it leaves open the possibility of member states introducing, under certain conditions, such requirements as they consider necessary in order to guarantee the protection of the health of individuals" (para 80).