UKSC 61
On appeal from:  CSIH 0009
Imperial Tobacco Limited (Appellant) v The Lord Advocate (Respondent) (Scotland)
Lord Hope, Deputy President
JUDGMENT GIVEN ON
12 December 2012
Heard on 12 and 13 November 2012
Richard Keen QC
Brian J Gill
(Instructed by Pinsent Masons LLP)
James Mure QC
Anna Poole QC
(Instructed by Scottish Government Legal Directorate Litigation Division)
|Intervener (The Advocate General for Scotland)
Lord Wallace of Tankerness QC
Ailsa Carmichael QC
Jonathan Swift QC
(Instructed by Office of the Advocate General for Scotland)
LORD HOPE (with whom Lord Walker, Lady Hale, Lord Kerr and Lord Sumption agree)
The interpretation issue
Sections 1 and 9 of the 2010 Act
"(1) A person who in the course of business displays or causes to be displayed tobacco products or smoking related products in a place where tobacco products are offered for sale commits an offence.
(2) A person does not commit an offence under subsection (1) if the display -
(a) is in a specialist tobacconist,
(b) does not include cigarettes or hand-rolled tobacco, and
(c) complies with any prescribed requirements.
(3) A person does not commit an offence under subsection (1) if –
(a) the tobacco products or smoking related products are displayed in the course of a business involving the sale of tobacco products only to persons who carry on a tobacco business (or their employees), and
(b) the display complies with any prescribed requirements."
Subsection (4) enables the Scottish Ministers to provide in regulations that no offence is committed under subsection (1) in relation to a display of tobacco products or smoking related products which complies with specified requirements. Subsection (5) provides that a person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 4 on the standard scale. Subsection (6) provides that a website is not a place for the purposes of subsection (1). Subsection (7) provides that "specialist tobacconist" has the meaning given by section 6(2) of the Tobacco Advertising and Promotion Act 2002.
"(1) A person who has the management or control of premises on which a vending machine is available for use commits an offence.
(2) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(3) In this section 'vending machine' means an automatic machine for the sale of tobacco products (regardless of whether the machine also sells other products)."
The rules of the 1998 Act
(a) Section 29(2)(b), which provides that a provision is outside competence if it "relates to reserved matters". That provision must be read together with section 29(3) which provides that, for the purposes of that section, the question whether a provision of an Act of the Scottish Parliament "relates to" a reserved matter is to be determined "by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances."
(b) Paragraph 2(1) of Schedule 4, which provides that an Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters. That rule must be read together with paragraph 2(3), which states that sub-paragraph (1) applies to a rule of Scots private law or Scots criminal law only to the extent that the rule in question is special to a reserved matter.
(c) Section C7 in Head C – Trade and Industry in Part II of Schedule 5, which is headed "Consumer protection" and includes
"Regulation of –
(a) the sale and supply of goods and services to consumers".
(d) Section C8 in Head C, which is headed "Product standards, safety and liability" and includes
"Product safety and liability".
(1) that, on a proper construction of section 29(2)(b) and 29(3) read together with section C7(a) of Head C in Schedule 5, sections 1 and 9 of the 2010 Act relate to "the sale and supply of goods to consumers", which is a reserved matter;
(2) that, on a proper construction of those subsections read together with section C8 of Head C, sections 1 and 9 relate to "product safety", which is a reserved matter; and
(3) that, on a proper construction of paragraph 2 of Schedule 4, sections 1 and 9 modify rules of Scots criminal law because they create new offences which can only be committed in the course of the sale and supply of goods to consumers.
Paragraph 2 of Schedule 4
Drawing these points together