COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF
JUSTICE QUEEN'S BENCH DIVISION
(The President of the Queen's Bench Division)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LADY JUSTICE ARDEN
| THE QUEEN ON THE APPLICATION OF SINCLAIR COLLIS LIMITED
|- and -
|THE SECRETARY OF STATE FOR HEALTH
|THE MEMBERS OF THE NATIONAL ASSOCIATION OF CIGARETTE MACHINE OPERATORS
Mr Nicholas Paines QC and Mr Ian Rogers (instructed by the DWP/DH Legal Services, on behalf of the DWP & The Dept of Health) for the Defendant/Respondent
Mr Thomas De La Mare and Mr Iain Steele (instructed by Davies Arnold Cooper LLP) for the Interested Party (NACMO)/2nd Appellant
Hearing dates : 8 & 9 March 2011
Crown Copyright ©
Lord Justice Laws:
THE TOBACCO VENDING MACHINE INDUSTRY
HISTORY OF THE LEGISLATION
"The preferred option was to introduce age restriction mechanisms. If, after this had been implemented for two years, clear and strong evidence showed that children were still buying cigarettes from vending machines, then there might be a prohibition. There followed a detailed cost/benefit analysis for each of the second and third options."
"(1) The appropriate national authority may by regulations make provision prohibiting or imposing requirements in relation to the sale of tobacco from an automatic machine in England and Wales."
Clause 21 of the Bill made like provision for Northern Ireland.
"An automatic machine must be activated only by a member of staff... in response to a request from an individual... aged 18 or over."
I should also note part of paragraph 4(2):
"An automatic machine must (a) require activation by remote control prior to use; (b) enable the sale of a single product only after activation..."
"(1) The appropriate national authority may by regulations make provision prohibiting the sale of tobacco from an automatic machine in England and Wales.
(6) The power of the appropriate national authority to make regulations under this section—
(a) is exercisable by statutory instrument,
(b) may be exercised to make different provision for different cases or circumstances, and
(c) includes power to make supplementary, incidental, consequential or transitional provision."
"The sale of tobacco from an automatic machine is prohibited."
"Policy option 2 [sc. the ban: option 1 was to do nothing] is likely to have a positive health impact on adults. The number of cigarettes smoked by adults may fall and therefore there would be an associated health gain."
TFEU and A1P1
"Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States."
Article 36 TFEU provides in part:
"The provisions of Article 34... shall not preclude prohibitions or restrictions on imports... on grounds of... the protection of health and life of humans..."
"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."
THE PRINCIPLE OF PROPORTIONALITY – OUTLINE
"The Court has consistently held that the principle of proportionality is one of the general principles of Community law. By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued."
In light of the position taken by Mr Paines QC for the Secretary of State as to the proper scope of the proportionality principle in the present case, I should also set out paragraph 14:
"However, with regard to judicial review of compliance with those conditions it must be stated that in matters concerning the common agricultural policy the Community legislature has a discretionary power which corresponds to the political responsibilities given to it by Articles 40 and 43 of the Treaty. Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see in particular the judgment in Case 265/87 Schraeder  ECR 2237, paragraphs 21 and 22)."
"41 The principle of proportionality is one of the basic principles of Community law. It has been expressed by the European Court of Justice in [FEDESA] [Lord Bingham cites paragraph 13 of FEDESA]…
Because the principle is so general (and may affect a range of issues from the validity of primary legislation such as the Shops Act 1950 to much narrower points such as the quantum of penalties for customs infringements) it must be related to the particular situation in which it is invoked…
43 However the test is formulated, it is clear that in the application of Article 36 the maintenance of public health must be regarded as a very important objective and must carry great weight in the balancing exercise. In De Peijper  ECR 613, 635 (paragraph 15) the Court of Justice said that health and the life of humans rank first among the interests protected by Article 36, and it is for member states to decide (within the limits imposed by the Treaty) what degree of protection to provide…
45 In principle the decision on proportionality has to be taken by the national court which is seised of an issue on Article 36, subject of course to any possible reference to the Court of Justice (the collaboration called for between the Court of Justice and national courts is described in the opinion of Mr Advocate-General Van Gerven in Rochdale BC v Anders  ECR I 6457, 6474 - 5, paragraph 19). But in the case of a legislative measure the national court must not simply accept the view of the national legislature or confine itself to deciding whether what the legislature has enacted is reasonable.
46 Nevertheless it is clear that the national legislature has a considerable margin of appreciation, especially in legislating on matters which raise complex economic issues connected with the Community's fundamental policies. [Paragraph 14 of FEDESA is then cited.]
The same approach can be seen in Aragonesa v DSSSG Cataluna [1991 ECR I - 4151, 4184-5 (paragraphs 17 to 18); Germany v Council  ECR I - 4973, 5068 - 9 (paragraphs 89 - 91); R v MAFF ex parte NFFO  ECR I - 3115, 3130 (paragraph 28) ; UK v Commission  ECR I - 5755, 5811 (paragraph 58); and Commission v Council  ECR I-881, 924 (paragraph 18) , in which the Court of Justice stated,
'In reviewing the exercise of such a power the Court must confine itself to examining whether it contains a manifest error or constitutes a misuse of power or whether the authority in question did not clearly exceed the bounds of its discretion (see the judgment in Roquette Freres v Council  ECR 3333, paragraph 25).'...
48 Eastside and Ducketts submit that FEDESA, and the numerous cases following FEDESA, are also distinguishable since in those cases the Court of Justice approved the application of a special test in special circumstances. In this case, it is submitted, the court should apply what counsel called the orthodox test, requiring a critical revaluation of all the factors bearing on proportionality. But there seems to be no good reason in principle or authority for two sharply different tests. The margin of appreciation for a decision-maker (which includes, in this context, a national legislature) may be broad or narrow. The margin is broadest when the national court is concerned with primary legislation enacted by its own legislature in an area where a general policy of the Community must be given effect in the particular economic and social circumstances of the member state in question. The margin narrows gradually rather than abruptly with changes in the character of the decision-maker and the scope of what has to be decided (not, as the secretary of state submits, only with the latter).
49 … The judge's task was (so far as Article 36 was concerned) to see whether the exercise of the secretary of state's power under section 13 of [the Food Safety Act 1990] Act had been objectively justified and had been shown not to be disproportionate. The test is more demanding than that of 'manifest error' and is also more demanding than that of Wednesbury unreasonableness (although in ex parte ITF, Lord Slynn, at page 1277, thought that the same result is often produced under both tests). The difference between the two tests has been lucidly described by Laws J in R v MAFF ex parte First City Trading  1 CMLR 250, 278 - 9; … its conclusion is that,
'Wednesbury and European review are different models - one looser, one tighter - of the same juridical concept, which is the imposition of compulsory standards on decision-makers so as to secure the repudiation of arbitrary power.'"
THE PARTIES' CONTENTIONS – OUTLINE
THE JUDGMENT BELOW
"88... In so far as the regulations were those of the Secretary of State who in theory had a choice under the primary legislation, the reality was that she was implementing the will of Parliament. In my view, both should be seen as, or as equivalent to, primary legislation enacted by the national legislature in a matter aimed at protecting the nation's health.
89 There is, in my view, a broad similarity between the present case and the Countryside Alliance case [sc.  1 AC 719)], which also concerned human rights and European law challenges to a legislative ban which was not that which the relevant Minister had promoted in Parliament. The relevant legislative aim, for the purposes of justification and proportionality, in that case as in this, is that of Parliament which enacted the legislation, not that of the Minister who promoted legislation which was rejected. Mr Paines is, in my judgment, correct to submit in the present case that the claimants wrongly developed a case which looks mainly at what they see as the Minister's aim."
THE RELEVANT DECISION-MAKER
PUBLIC HEALTH AND THE MARGIN OF APPRECIATION – DISCUSSION
"[I]t is for the Member States to decide on the degree of protection which they wish to afford to public health and on the way in which that protection is to be achieved." (my emphasis)
Like observations are to be found for instance in the Opinion of Advocate General Tizzano given jointly in two cases, Commission v France  ECR 6569 and Bacardi  ECR I-6617. He said at paragraph 79:
"I am nevertheless of the view that these decisions fall within the freedom of the Member States to 'decide on the degree of protection which they wish to afford to public health and on the way in which that protection is to be achieved', and are therefore among the options available to Member States for attaining that objective." (original emphasis)
This language, submits Mr Paines, implies a broad margin of appreciation. It means, he suggests, that in this area the courts will not enquire whether the benefits to human health to be obtained from the measure in question outweigh any detriments. He cites paragraph 24 of the judgment in Commission v France:
"In that context, it is for the Member States to decide on the degree of protection which they wish to afford to public health and on the way in which that protection is to be achieved. They may do so, however, only within the limits set by the Treaty and must, in particular, observe the principle of proportionality: see [Aragonesa paragraph 16] which requires that the measures adopted be appropriate to secure the attainment of the objective which they pursue and not go beyond what is necessary in order to attain it..."
Mr Paines says that this excludes any requirement for an enquiry into detriments.
"120 [T]he Community legislature enjoys a broad degree of latitude, at any rate where health protection is in issue. In this the Community legislature does not therefore differ from the national legislature which utilises the scope conferred on it by Article [36 TFEU]. In this appraisal by the legislature, a multitude of aspects enter into play. The need for protective measures depends not only on the scientific understanding of specific health risks but also on the social and political evaluation of those risks. The same holds true with regard to the choice of measure."
Then dealing specifically with proportionality, the Advocate General said:
"230... [The principle of proportionality] does not provide that two matters of interest have to be weighed one against the other but focuses only on the choice of measure which has been or is being adopted to protect public health. Is this measure appropriate and is any other - less intrusive - measure available which would provide equally good protection for public health? The Community Courts exercise a limited appraisal of these issues."
"123 With regard to judicial review of the conditions referred to in the previous paragraph [sc. the requirements of proportionality], the Community legislature must be allowed a broad discretion in an area such as that involved in the present case, which entails political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue..."
And at paragraph 17 of the Court's judgment in Aragonesa:
"A national measure such as that at issue restricts freedom of trade only to a limited extent since it concerns only beverages having an alcoholic strength of more than 23 degrees. In principle, the latter criterion does not appear to be manifestly unreasonable as part of a campaign against alcoholism."
But I should also note paragraph 18 of the same judgment:
"On the other hand, the measure at issue does not prohibit all advertising of such beverages but merely prohibits it in specified places some of which, such as public highways and cinemas, are particularly frequented by motorists and young persons, two categories of the population in regard to which the campaign against alcoholism is of quite special importance. It thus cannot in any event be criticized for being disproportionate to its stated objective."
In National Federation of Fishermen's Organisations  ECR I-3115 the statutory instrument under challenge contained the measures which as a matter of discretion the United Kingdom government had selected as the means of implementing certain Community requirements relating to sea fishing. The Court stated:
"56 The national measures at issue... do in fact correspond to the objectives of general interest pursued by the Community in the fisheries sector since their purpose is the structural improvement of that sector. They do not constitute a disproportionate and intolerable interference impairing the very substance of the rights guaranteed.
57 Nor are those measures contrary to the principle of proportionality. The Commission decision approving the MAGP leaves the United Kingdom considerable freedom to evaluate and choose the measures to be taken in order to implement the plan. When considering whether the exercise of such freedom is lawful, the courts cannot substitute their own evaluation for that of the competent authority, but must restrict themselves to examining whether the evaluation of the latter contains a patent error or constitutes a misuse of power..."
And there is also paragraph 14 of FEDESA, which I have cited above at paragraph 20.
"6.1.2 … Protection of health and life of humans, animals and plants is the most popular justification under which Member States usually try to justify obstacles to the free movement of goods. While the court's case law is very extensive in this area, there are some principal rules that have to be observed: the protection of health cannot be invoked if the real purpose of the measure is to protect the domestic market, even though in the absence of harmonisation it is for a Member State to decide on the level of protection; the measures adopted have to be proportionate, i.e. restricted to what is necessary to attain the legitimate aim of protecting public health. Furthermore, measures at issue have to be well-founded – providing relevant evidence, data (technical, scientific, statistical, nutritional) and all other relevant information (… Commission v Germany  ECR I-9811).
6.3 … An important element in the analysis of the justification provided by a Member State will therefore be the existence of alternative measures hindering trade less. The Member State has an obligation to opt for the 'less restrictive alternative' and failure to do so will constitute a breach of the proportionality principle.
The justification provided by the Member State must be accompanied by appropriate evidence or by an analysis of the appropriateness and proportionality of the restrictive measure adopted by that State, and precise evidence enabling its arguments to be substantiated..."
"49 It cannot be disputed that if the ban at issue in the main proceedings thus proves to be a means effectively of preventing younger persons from becoming purchasers of alcoholic beverages and therefore of reducing the risk of their becoming consumers of such beverages, it must be regarded as being justified in the light of the objective of protection of public health referred to in Article 30 EC [now Article 36].
50 However, since a ban such as that which arises from the national legislation at issue in the main proceedings amounts to a derogation from the principle of the free movement of goods, it is for the national authorities to demonstrate that those rules are consistent with the principle of proportionality, that is to say, that they are necessary in order to achieve the declared objective, and that that objective could not be achieved by less extensive prohibitions or restrictions, or by prohibitions or restrictions having less effect on intra-Community trade..."
The Court held that the ban was not proportionate: it applied to everyone, irrespective of age.
"The underlying interest which the principle seeks to protect is the rights of the individual but, given the discretion of the legislature, review of policy measures is based on the so-called 'manifestly inappropriate' test... By contrast, where proportionality is invoked in order to challenge the compatibility with Community law of national measures affecting one of the fundamental freedoms,... the intensity of review is much stronger. It is based, at least in most cases, on the notion of 'necessity' exemplified by the 'less restrictive alternative' test."
Professor Tridimas adds (footnote 12) that the 'manifestly inappropriate' test also generally applies to national measures implementing EU law, and cites Upjohn  ECR I-223 (briefly discussed by Lord Bingham in Eastside Cheese in a passage at paragraph 47 which I have not set out).
"The expression 'manifestly inappropriate' delineates what the Court [sc. the Court of Justice] perceives to be the limits of judicial function with regard to review of measures involving choices of economic policy... The test grants to the Community institutions ample discretion and applies to both aspects of proportionality, i.e. suitability and necessity... [A]rgument concentrates usually on the requirement of necessity."
At p. 144 Professor Tridimas states that the manifestly inappropriate test applies "in any area involving decision of economic or social policy where the Community legislature enjoys wide discretion".
PUBLIC HEALTH AND THE MARGIN OF APPRECIATION – CONCLUSIONS
PUBLIC HEALTH AND THE MARGIN OF APPRECIATION – FOOTNOTE: A1P1
"The second paragraph of Article 1 (P1-1) nevertheless authorises a Contracting State to 'enforce such laws as it deems necessary to control the use of property in accordance with the general interest'. This paragraph thus sets the Contracting States up as sole judges of the 'necessity' for such a law..."
Mr Paines accordingly submits that the State in any event enjoys a very broad margin of appreciation when acting under the second paragraph of A1P1. Miss Rose appears to accept – or assert – that the position differs as between TFEU Article 36 and ECHR A1P1 (skeleton argument, paragraph 38).
"If anything, indeed, I would have thought interferences with the fundamental rights and freedoms guaranteed by the Convention more, rather than less, difficult to justify than restrictions on the merely economic rights of free movement of goods and services provided for by the Treaty. If anything, these economic rights seem to me more akin to the property rights protected under Article 1 of the First Protocol than to the core rights guaranteed, for example, under Articles 8-11 – and therefore to be more readily overridden in the broad public interest than the Convention's core rights."
In relation to the second paragraph of A1P1 this seems to me, with great deference, to have much force.
THE CLAIMANTS' CRITICISMS OF THE BAN
"13 The economic impact on the vending machine operators and pubs, clubs etc seems to be neglected... [T]he impact on businesses has not been fully considered and more should have been done to quantify this."
To this the Department of Health appended the following comment:
"Manufacturers' profit is not factored in as, unless tobacco manufacture is more heavily monopolised than goods generally (and it possibly is), the capital employed in it would attract the same return in other uses.
The key issue is the net effect on the economy as a whole..."
"The evidence set out in the [FIA] does not provide a specific link between the proposed measure and a reduction in smoking by under-18s. Evidence that young people are accessing cigarettes from vending machines does not in itself show that the new regulation will lead to reduced smoking, as under-18s may still access cigarettes from other sources."
And this is the burden of Miss Rose's submission. She says that cutting off one source of supply does not demonstrate or imply that its users will not find an equal supply elsewhere. This is, of course, literally true: the ban is no proof that the gap it leaves will not be filled. But we are not in the realm of proof. The question is as to the probabilities of future human conduct. That is not to say that the Secretary of State may act without any evidence ("precise evidence enabling its arguments to be substantiated...": Commission Guidance, paragraph 6.4). However Mr Paines has made it very clear that it has never been the Secretary of State's case that the ban is justified under Article 36 TFEU and A1P1 because its effects are capable of being accurately calculated in a cost/benefit analysis. As he submitted:
"[N]one of the tobacco control measures that have been introduced in recent years could have been introduced if the burden of justification involved quantifying with precise accuracy effects that are not capable of such quantification." (skeleton argument paragraph 19)
THE THIRD STRATEGIC ARGUMENT: THE BAN IS NOT SHOWN TO BE PROPORTIONATE
THE CONSTRUCTION ARGUMENT: SELECTIVE USE OF S.3A(1)
"Mr de la Mare... has a submission that the amended section 3A(6)... retains a power to make regulations which do not impose an outright ban... It does not seem to me to be possible to construe this subsection in the way Mr de la Mare suggests. The power to make regulations in section 3A(1) is to make provisions prohibiting the sale of tobacco from an automatic machine, and I do not read section 3A(6) as extending to a power to make provisions which do not prohibit such sale. It looks as if section 3A(6) was a subsection in the unamended Bill, which the amendment did not remove or modify. However that may be, the passage of the Bill through Parliament and its amendment did not leave the Secretary of State with the practical political option of making regulations to provide for precisely that which Parliament had removed from the Bill."
If it had indeed been submitted that s.3A(6) allowed the Secretary of State to make regulations "to provide for precisely that which Parliament had removed from the Bill" that would of course have been misconceived and the President would with respect plainly have been right to reject it. But the actual submission, which I have described at any rate as it was advanced in this court, was more modest and less obviously objectionable.
EFFECT OF THE CONSTRUCTION ARGUMENT
CONCLUSION ON PROPORTIONALITY
Lady Justice Arden:
a. Banning tobacco vending machines (which I shall call "TVMs") is for the purpose of protecting public health, particularly that of children, and this is the aim of the measures of which the appellants are seeking judicial review under European Union law. Those measures are: ss 22 and 23 of the 2009 Act, and the Regulations;
b. This aim of the measures is to be considered a legitimate aim for the purposes of European Union law;
c. By virtue of ss 22 and 23 of the 2009 Act, Parliament made two decisions: (i) to give the Secretary of State power to ban TVMs; and (ii) to rule out the possibility of the Secretary of State regulating TVMs by secondary legislation;
d. The level of intensity of review of the decisions of Parliament for the purposes of the principles of proportionality is that of "manifest error", and the test of "least intrusive means" either does not apply or applies with the same lower level of intensity;
e. The appellants cannot show any manifest error on the part of Parliament;
f. The same level of intensity applies to the acts of the Secretary of State in relation to the decision authorised by ss 22 and 23 of the 2009 Act whether or not to ban TVMs;
g. The Secretary of State has considered and rejected a purely voluntary code, and was only willing to permit the use of TVMs fitted with ARM on the basis of regulation;
h. The decision of the Secretary of State to impose a ban was not on its face manifestly inappropriate. Accordingly, the appellants bear the burden of adducing evidence to show that there are other, equally suitable, means of achieving the gain in public health sought by the legitimate aim of the Secretary of State. For this purpose, the appellants rely on the option of a purely voluntary code for requiring TVMs to be fitted and operated with ARM;
i. In my judgment, on the evidence, the burden on the appellants has not been discharged;
j. In respectful disagreement with Laws LJ, it is inappropriate to declare the decision of the Secretary of State disproportionate on the basis that the Secretary of State has failed to form a view about a purely voluntary code for ARM but that he might properly form such a view (favourable or unfavourable) on reconsideration of the matter. The court must decide whether or not, on the evidence adduced, the requirement as to least intrusive means has been met; and
k. The President of the Queen's Bench Division came to the right conclusions and these appeals should be dismissed.
Some further facts about smoking and about banning TVMs
a. The effects of smoking on public health to which the measure is directed;
b. The nature of the Secretary of State's earlier proposal for adopting ARM; and
c. The response of the European Commission to notification under the Technical Standards Directive.
"7. Policy Background
What is being done and why
7.1 Protecting children from the health harms of smoking is a public health priority for the Government. There is evidence that in 2008, 12% of young people aged 11-15 who are regular smokers usually access cigarettes through vending machines (2008 is the latest data set). Removing this form of access to cigarettes for young people will assist our key public health priority of reducing smoking uptake amongst young people. With two thirds of smokers stating that they started smoking before the age of 18, the Government believes that preventing the uptake of smoking by young people is vital.
7.2 The National Association of Cigarette Machine Operators (NACMO) has had in place a voluntary code designed to limit the number of under age sales made from vending machines, for over 10 years. This has not achieved adequate results, as demonstrated by the proportion of young people still using tobacco vending machines and therefore the Government believes it is necessary to introduce these regulations.
7.3 The Regulations are designed to help prevent access to tobacco products by children. Adults will be able to buy tobacco from other sources.
Rationale for further control on tobacco vending machines
7. Tobacco smoking is proven to cause serious harm to the health of the smoker. It also poses significant externalities to the rest of society and is a leading cause of health inequalities. Smoking prevalence is higher among routine and manual groups, and tobacco use is a significant cause of health inequalities.
8. Young people are uniquely vulnerable consumers, as they do not always have the capacity to make informed decisions, and society generally recognises this by providing greater protections for children than for adults. Nicotine addiction can develop extremely quickly in children. The National Statistics General Household Survey estimates that around two-thirds of smokers say they started smoking regularly before turning 18.
9. Government intervention is justified to prevent young people from accessing tobacco. The Government believes that children can far too easily access tobacco from vending machines, and that action is necessary to prevent this. The current voluntary code of practice on the siting of tobacco vending machines to prevent underage access (the NACMO code of practice) has proved to be insufficiently effective in restricting the access young people have to this source of tobacco.
10. Latest data collected from the English local authorities by the Local Authorities Coordinators of Regulatory Services (LACORS) on test purchasing from vending machines covers the 2008-09 period and shows that illegal sales to under-18s were made at the majority (58%) of vending machines tested across England during this period. Despite the NACMO voluntary code of practice in the siting of vending machines, LACORS found that 26.5% of vending machines checked in England over 2008-09 were located in unsupervised areas and nearly a third of vending machines checked were assessed by trading standards officers as being likely to result in sales to under 18s.
11. The UK is a party to the WHO Framework Convention on Tobacco Control (FCTC), the world's first public health treaty. The treaty includes the following treaty obligations under Article 16 (sales to and by minors):
"Each party shall adopt and implement effective legislative, executive, administrative or other measures at the appropriate government level to prohibit the sales of tobacco products to persons under the age set by domestic law, national law or eighteen. These measures may include…. ensuring that tobacco vending machines under its jurisdiction are not accessible to minors and do not promote the sale of tobacco products to minors.
When signing, ratifying, accepting, approving or acceding to the Convention or at any time thereafter, a Party may, by means of a binding written declaration, indicate its commitment to prohibit the introduction of tobacco vending machines within its jurisdiction or, as appropriate, to a total ban on tobacco vending machines."
12. The FCTC is elaborated through guidelines for parties. Under Article 13 (tobacco advertising, promotion and sponsorship), guidelines have been agreed and provided to parties that suggest that "vending machines should be banned because they constitute by their very presence a means of advertising or promotion under the terms of the Convention."
13. The World Health Organization's European Strategy for Tobacco Control recommends that strategic national action should include "banning sales [of tobacco] through vending machines". According to the World Health Organisation, 22 countries in the WHO EURO region have banned the sale of tobacco through vending machines (10 since 2002). Of these 22 countries, 12 are European Union Member States."
"7. We have three overarching objectives to make significant progress towards a smokefree society. Against each objective, we have also set an aspiration for what could be achieved by 2020 if all our partners across the public, the private and the voluntary sectors were to continue to prioritise tobacco control and implement the evidence-based policies set out in this strategy.
To stop the inflow of young people recruited as smokers: aspiring to reduce the smoking rate among 11–15-year-olds to 1% or less, and the rate among 16–17-year-olds to 8% by 2020.
To motivate and assist every smoker to quit: aspiring to reduce adult smoking rates to 10% or less, and halve smoking rates for routine and manual workers, among pregnant women and in the most disadvantaged areas by 2020.
To protect our families and communities from tobacco-related harm: aspiring to increase to two-thirds the proportion of homes where parents smoke but that are entirely smokefree indoors by 2020.
Stopping the inflow of young people recruited as smokers
8 Each year in England, an estimated 200,000 children and young people start smoking; and most adult smokers say they started smoking regularly before they turned 18. We need to focus on preventing young people from taking up smoking in the first place. The home environment is very important: young people are much more likely to smoke if they live with smokers. For this reason, supporting adult smokers to quit is a key aspect in encouraging young people not to take up smoking.
9 By placing a greater emphasis on preventing young people from taking up smoking, we have the opportunity to break the intergenerational cycle of initiation and addiction to tobacco. The perpetuation of tobacco use through the generations is one of the major reasons for the difference in quality of life and life expectancy between the richest and the poorest.
10 Action already taken to reduce the appeal and the supply of tobacco to young people has included a ban on most forms of tobacco advertising, the inclusion of pictorial warnings on tobacco packs to raise awareness of the risks of smoking, and an increase in the age at which young people can be sold tobacco products – from 16 to 18 years.
11 The affordability of tobacco products affects youth uptake and adult consumption alike. We have worked to reduce the affordability of such products by increasing the tax on them and maintaining the downward pressure on the illicit tobacco market. Despite these efforts, the evidence shows that young people are continuing to take up smoking for a number of reasons, including the way tobacco products are promoted.
12 In pursuit of our first objective, we will:
• Make tobacco less affordable by continuing to consider the case for real increases in duty on tobacco on a Budget-by-Budget basis, and by additional investment in overseas Fiscal Crime Liaison Officers, whom we expect to prevent over 200 million illicit cigarettes from being smuggled into the UK each year. More broadly we will continue to bear down on the market for illicit cigarettes, which has fallen from 21% in 2000 to 10% in 2007/08 (midpoint estimates), and achieve similar success in reducing the illicit market for hand-rolled tobacco.
• Remove tobacco products from display in shops.
- Prohibit the sale of tobacco from vending machines, a significant source of tobacco for young people, subject to Parliamentary consideration of regulations.
- Take action to ensure that the advertising of tobacco accessories is not being used to encourage the use of tobacco products of any type.
- Encourage research to further our understanding of the possible links between tobacco packaging and smoking behaviours.
- Restrict tobacco availability to children by reviewing the current restrictions on the retail of tobacco and enforcement of tobacco retail regulations. Alongside this, we will launch a review within the first three months of this year into the purchase for and supply of tobacco to young people. This review will assess what more can be done to limit these sources, including examining the current legislation around the confiscation of tobacco that children are found to have in their possession.
- Continue to engage with young people to raise awareness about the dangers of smoking and develop skills that will encourage them to play a role in building our smokefree future.
3.17 Since vending machines are self-service, they offer easy (and often unsupervised) access to tobacco, including for young people under the legal age at which they may be sold tobacco (18 years). Although sales of tobacco products from vending machines represent just 1% of the overall tobacco market, a disproportionate number of purchases from vending machines are made by young people. In 2008, vending machines were the usual source of tobacco for 10% of those children aged 11–15 who said they smoked. Trading standards test purchasing has also shown that young people can easily access tobacco from vending machines.
3.18 We will prohibit the sale of tobacco from vending machines, subject to Parliamentary consideration of regulations."
"Sale of tobacco, etc, to persons under eighteen
(1) Any person who sells to a person . . . under the age of eighteen years any tobacco or cigarette papers, whether for his own use or not, shall be liable, on summary conviction to a fine not exceeding level 4 on the standard scale…
(1A) It shall be a defence for a person charged with an offence under subsection (1) above to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence."
"145 Unaccompanied children prohibited from certain premises
(1) A person to whom subsection (3) applies commits an offence if –
(a) knowing that relevant premises are within subsection (4), he allows an unaccompanied child to be on the premises at a time when they are open for the purposes of being used for the supply of alcohol for consumption there, or
(b) he allows an unaccompanied child to be on relevant premises at a time between the hours of midnight and 5 a.m. when the premises are open for the purposes of being used for the supply of alcohol for consumption there.
(2) For the purposes of this section –
"(a) "child" means an individual aged under 16,... "
The provisions in the Health Bill on tobacco vending machines in England and Wales insert a new Section 3A into the Children and Young Persons (Protection from Tobacco) Act 1991. They also insert a new Section 12D(1)(c) into the Children and Young Persons Act 1933 (CYPA). Any offence for breaking the requirements on vending machines will therefore be covered by sections 12A to 12D of CYPA. Sections 12A to 12D of CYPA were introduced by the Criminal Justice and Immigration Act 2008 and they provide for magistrates to impose orders prohibiting the sale of tobacco, for periods of up to a year, by persons or shop found to have committed specified tobacco offences (which relate to the sale of tobacco to people under 18) on three occasions. Under Section 5 of the 1991 Act, enforcement is the responsibility of specified local authorities."
"There is no longer a power to impose requirements on how tobacco products are sold from vending machines, as there was when the Health Bill was first introduced. The appropriate national authorities in England, Wales and Northern Ireland may now only make regulations to prohibit tobacco sales from vending machines"
6. The Minister considered that there were strong arguments in favour of a prohibition. She considered that a prohibition would be easy to operate and enforce, and would therefore be likely to achieve the public policy aim of preventing young people's access to cigarettes through vending machines.
7. In particular she took the following factors into account:
a) Access to tobacco by children from vending machines: The primary reason for the Minister's decision was the evidence that in 2008, 12% of young people aged 11-15 who are regular smokers and 10% of young people aged 11-15 who are current smokers usually access cigarettes through vending machines (2008 was the latest data set). The evidence for this was contained in the publication "Smoking, drinking and drug use among young people in England 2008" published by the NHS Information Centre for health and social care (part of the Government Statistical Service). The Minister therefore considered that removing this form of access of cigarettes for young people would assist the Secretary of State's key public health priority of reducing smoking uptake amongst young people.
b) The Minister noted that trading standards test purchasing programmes showed that children can easily buy tobacco from vending machines and that 1 in 4 vending machines checked by trading standards officers across England over 2008-09 were not located in an area that is supervised. The evidence for this was contained in a number of reports, a report entitled: "Test purchasing of tobacco products: Results from local authority trading standards, 1st October 2007 to 31 March 2008" compiled by LACORS (the Local Authority Co-Ordinators of Regulatory Services, which provides support and guidance to local authorities on a range of regulatory issues); results of test purchasing conducted on 634 vending machines across England over 2008-09, using volunteer "test purchasers" aged 11-16 years old LACORS (2010): Comprehensive Tobacco Control and Council Trading Standards: Delivering outcomes 2008 and 2009. We can provide copies of these publications if need be.
c) Access to tobacco by adults from vending machines: The Minister noted that the prohibition on sales from vending machines would also be likely to have a beneficial impact on adult quitters, who might otherwise be tempted to lapse by the presence of vending machines in locations such as pubs, clubs and restaurants. She noted the comments of ASH made in response to the consultation that smokers often associate purchases with relapse during attempts to quit or unplanned purchases when drinking.
d) Enforceability of a prohibition: The Minister noted evidence received in response to consultation on the Regulations that anything less than a total prohibition would place extra burdens on regulators and enforcers, and make enforcement harder and possibly more expensive. Prohibition would be easier and cheaper to enforce than imposing restrictions.
12. The Minister noted that the possibility for regulatory restrictions no longer existed under the primary powers now contained in the Health Act 2009, but that it was open to her to consider whether a further voluntary approach could be appropriate.
13. The Minister noted that previous voluntary approaches, including the NACMO voluntary code of practice, had not been effective in limiting under-age access to cigarette vending machines, despite having been in place for over ten years; she noted the finding from LACORS that 26.5% of vending machines checked in England in 2008-2009 were located in unsupervised areas, and that nearly a third of all vending machines checked were assessed by trading standards officers as being likely to result in sales to under 18s. (This information is contained in the document LACORS (2010): Comprehensive Tobacco Control and Council Trading Standards: Delivering outcomes 2008 and 2009 referred to in paragraph 7(b) above).
"The Appellants place greater weight on the test results than they can reasonably bear. Quite apart from the fact that only 15 purchases were attempted during the course of the trial, there was a 20% failure rate: 20% of purchases by a test purchaser who ought to have been subject to the age verification procedure were made without the procedure being applied by the staff …
Furthermore, 93% of attempts took place when the bar was described as "not busy". The other tests were carried out when the bar was "average" in terms of level of business. None of the attempts were made when a bar was "busy". An e-mail from Helen Williamson of Serve Legal, the organisation which conducted the testing noted, "The day of the week performance is probably as you would expect with the Friday and Saturday being the lowest pass rates. Again, with time of day, the evening is the worst performing time (after 5pm)." The age verification procedure was not applied correctly in 100% of attempts taking place after midday on Saturday. Only one purchase attempt was made in the tests during the busiest periods for bars – Friday and Saturday evenings – and on that occasion the bar staff failed to apply the procedure correctly. It can be assumed that the scope for human lapse or error would be significantly higher if at least some of the testing had been carried out when the bars in question were busy.
Moreover, while the test results showed that radio control restrictions on tobacco vending machines failed to work in 20% of cases because of human lapse or error, notwithstanding the staff had been trained in age verification procedures and the correct operation of the radio controls, the testing did not test for other sources of failure, such as
(1) an underage person operating the machine before the requesting adult reaches the machine;
(2) reliance on false identification;
(3) proxy purchasing by adults; or
(4) malfunctioning or circumvention of the remote control device."
"A high level of human health protection shall be ensured in the definition and implementation of all the Union's policies and activities."
The principles of proportionality
"12. It was argued that the directive at issue infringes the principle of proportionality in three respects. In the first place, the outright prohibition on the administration of the five hormones in question is inappropriate in order to attain the declared objectives, since it is impossible to apply in practice and leads to the creation of a dangerous black market. In the second place, outright prohibition is not necessary because consumer anxieties can be allayed simply by the dissemination of information and advice. Finally, the prohibition in question entails excessive disadvantages, in particular considerable financial losses on the part of the traders concerned, in relation to the alleged benefits accruing to the general interest.
13. The Court has consistently held that the principle of proportionality is one of the general principles of Community law. By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.
14. However, with regard to judicial review of compliance with those conditions it must be stated that in matters concerning the common agricultural policy the Community legislature has a discretionary power which corresponds to the political responsibilities given to it by Articles 40 and 43 of the Treaty. Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see in particular the judgment in Case 265/87 Schraeder  ECR 2237, paragraphs 21 and 22). "
"15. On the question whether or not the prohibition is appropriate in the present case, it should first be stated that even if the presence of natural hormones in all meat prevents detection of the presence of prohibited hormones by tests on animals or on meat, other control methods may be used and indeed were imposed on the Member States by Council Directive 85/358/EEC of 16 July 1985 supplementing Directive 81/602/EEC (Official Journal 1985 L 191, p.46). It is not obvious that the authorization of only those hormones described as "natural" would be likely to prevent the emergence of a black market for dangerous but less expensive substances. Moreover, according to the Council, which was not contradicted on that point, any system of partial authorization would require costly control measures whose effectiveness would not be guaranteed. It follows that the prohibition at issue cannot be regarded as a manifestly inappropriate measure.
16. As regards the arguments which have been advanced in support of the claim that the prohibition in question is not necessary, those arguments are in fact based on the premiss that the contested measure is inappropriate for attaining objectives other than that of allaying consumer anxieties which are said to be unfounded . Since the Council committed no manifest error in that respect, it was also entitled to take the view that, regard being had to the requirements of health protection, the removal of barriers to trade and distortions of competition could not be achieved by means of less onerous measures such as the dissemination of information to consumers and the labelling of meat."
"122. As a preliminary point, it ought to be borne in mind that the principle of proportionality, which is one of the general principles of Community law, requires that measures implemented through Community provisions should be appropriate for attaining the objective pursued and must not go beyond what is necessary to achieve it (see, inter alia , Case 137/85 Maizena  ECR 4587, paragraph 15; Case C-339/92 ADM Ölmühlen  ECR I-6473, paragraph 15, and Case C-210/00 Käserei Champignon Hofmeister  ECR I-6453, paragraph 59).
123. With regard to judicial review of the conditions referred to in the previous paragraph, the Community legislature must be allowed a broad discretion in an area such as that involved in the present case, which entails political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see, to that effect, Case C-84/94 United Kingdom v Council  ECR I-5755, paragraph 58; Case C-233/94 Germany v Parliament and Council  ECR I-2405, paragraphs 55 and 56, and Case C-157/96 National Farmers' Union and Others  ECR I-2211, paragraph 61)."
"49. It cannot be disputed that if the ban at issue in the main proceedings thus proves to be a means effectively of preventing younger persons from becoming purchasers of alcoholic beverages and therefore of reducing the risk of their becoming consumers of such beverages, it must be regarded as being justified in the light of the objective of protection of public health referred to in Article 30 EC.
50. However, since a ban such as that which arises from the national legislation at issue in the main proceedings amounts to a derogation from the principle of the free movement of goods, it is for the national authorities to demonstrate that those rules are consistent with the principle of proportionality, that is to say, that they are necessary in order to achieve the declared objective, and that that objective could not be achieved by less extensive prohibitions or restrictions, or by prohibitions or restrictions having less effect on intra-Community trade (see, to that effect, Case C-17/93 Van der Veldt  ECR I-3537, paragraph 15; Franzén, paragraphs 75 and 76; and Ahokainen and Leppik, paragraph 31).
51. The ban on imports at issue in the main proceedings applies to everyone, irrespective of age. Accordingly, it goes manifestly beyond what is necessary for the objective sought, which is to protect younger persons against the harmful effects of alcohol consumption."
"Nor can doubt be cast on the finding that the disputed measures are proportionate merely because other kinds of measures could have been adopted, since the selection of measures to be taken is a political decision falling within the purview of the Member State concerned, within the limits set by Decision 92/593."
"46. Proportionality in this context also involves judging the appropriateness of the national measure in order to meet the objective required by the 2006 directive. Proportionality must also be assessed by reference to whether the member state was seeking to obtain some other objective, apart from that required by Community law, as where the member state seeks to impose some restriction in order to protect its own domestic industry: see, for example, Case C-398/98 Commission v Greece. There is no suggestion of unsuitability of the new regime in this sense or any ulterior objective on the part of the Secretary of State in this case.
47. Proportionality also requires that the court should consider whether there is any less restrictive means of effectively achieving the objective required by Community law: see, for example Commission v Greece, above. In this case, the Secretary of State could not justify the decision to adopt the new regime if Mabanaft could show that some other regime would be demonstrably less intrusive into competition between oil suppliers, and less intrusive into the fundamental rights of movement and competition guaranteed by Community law. But Mabanaft does not go this far. It simply says that the Secretary of State should have investigated actual costs and taken them into account. In my judgment, that is not enough.
48. In any assessment of proportionality in a technical field, the court must allow a proper margin of discretion to the decision maker, because of the complexity of the assessment he is called upon to make in this field. It is a specific function of government to take decisions such as these for ensuring the supply of essential products in the situation of an emergency. The court therefore exercises restraint in reviewing any decision of this kind and requires it to be shown that the new regime was a manifestly disproportionate means of achieving the end of allocating the burden of CSO. [compulsory stocking obligations]."
"Application of the 'precautionary principle':
The precautionary principle was first used by the Court of Justice in the National Farmers' Union and Others case even if it was implicitly present in earlier case law. The Court stated: 'where there is uncertainty as to the existence or extent of rights to human health, the institution may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent'. The principle defines the circumstances under which a legislator, whether national, EU or international, can adopt measures to protect consumers against health risks which, given uncertainties at the present state of scientific research, are possibly associated with a product or service.
The Court of Justice has consistently stated that the Member States have to perform a risk assessment before taking precautionary measures under Articles 34 and 36 TFEU. It appears that the Court in general is content with finding that scientific uncertainty is at hand and, once this has been established, it leaves the Member States or the institutions considerable leeway in deciding on what measures to take. However, the measures cannot be based on 'purely hypothetical considerations'.
Generally, when Member States wish to maintain or introduce measures to protect health under Article 36 TFEU, the burden of proving the necessity of such measures rests with them. That this is also the case in situations where the precautionary principle is concerned has been confirmed by the Court of Justice in a number of recent cases. In its rulings the Court has emphasised that real risks need to be demonstrated in the light of the most recent results of international scientific research. Thus, Member States bear the initial burden of showing that precautionary measures can be taken under Article 36 TFEU. However, Member States do not need to show a definite link between the evidence and the risk; instead it is enough to show that the area in question is surrounded by scientific uncertainty. The EU institutions will then evaluate the case brought by the Member States." (footnotes and citations omitted)
"17. Finally, it must be stated that the importance of the objectives pursued is such as to justify even substantial negative financial consequences for certain traders."
"The availability of alternative solutions does not in itself render the leasehold reform legislation unjustified; it constitutes one factor, along with others, relevant for determining whether the means chosen could be regarded as reasonable and suited to achieving the legitimate aim being pursued, having regard to the need to strike a "fair balance". Provided the legislature remained within these bounds, it is not for the Court to say whether the legislation represented the best solution for dealing with the problem or whether the legislative discretion should have been exercised in some other way."
The relevant decision-maker
Suitability of the measures
"[I]t is for the Member States to decide on the degree of protection which they wish to afford to public health and on the way in which that protection is to be achieved."
"56. To satisfy its obligation to take as a base a high level of protection in health matters, in accordance with Article 95(3) EC, the Community legislature was thus able, without exceeding the limits of its discretion in the matter, to consider that a prohibition of the marketing of tobacco products for oral use was necessary, and in particular that there was no alternative measure which allowed that objective to be achieved as effectively.
57. As the Advocate General observes in points 116 to 119 of his Opinion, no other measures aimed at imposing technical standards on manufacturers in order to reduce the harmful effects of the product, or at regulating the labelling of packagings of the product and its conditions of sale, in particular to minors, would have the same preventive effect in terms of the protection of health, inasmuch as they would let a product which is in any event harmful gain a place in the market.
58. It follows from the above considerations that, with respect both to the objective of ensuring a high level of protection of human health given to the Community legislature by Article 95(3) EC and to its obligation to comply with the principle of proportionality, the contested prohibition cannot be regarded as manifestly inappropriate."
"73. The prohibition on the marketing of tobacco products for oral use laid down in Article 8 of Directive 2001/37 is indeed capable of restricting the freedom of manufacturers of such products to pursue their trade or profession, assuming that they have envisaged such marketing in the geographical region concerned by that prohibition. However, the operators' right to property is not called into question by the introduction of such a measure. No economic operator can claim a right to property in a market share, even if he held it at a time before the introduction of a measure affecting that market, since such a market share constitutes only a momentary economic position exposed to the risks of changing circumstances (Case C-280/93 Germany v Council, paragraph 79). Nor can an economic operator claim an acquired right or even a legitimate expectation that an existing situation which is capable of being altered by decisions taken by the Community institutions within the limits of their discretionary power will be maintained (see Case 52/81 Faust v Commission  ECR 3745, paragraph 27).
74. As stated above, Directive 2001/37 pursues an objective in the general interest by ensuring a high level of protection of health in the context of the harmonisation of the provisions applicable to the placing on the market of tobacco products. It does not appear, as indicated in paragraph 58 above, that the prohibition laid down in Article 8 of that directive is inappropriate to that objective. In those circumstances, the obstacle to the freedom to pursue an economic activity constituted by a measure of such a kind cannot be regarded, in relation to the aim pursued, as a disproportionate interference with the exercise of that freedom or with the right to property."
Least intrusive means: how is this issue to be decided?
"128. The proportionality of that ban on manufacture has been called into question on the ground that it is not a measure for the purpose of attaining its objective and that it goes beyond what is necessary to attain it since, in particular, an alternative measure, such as reinforcing inspections of imports from non-member countries, would have been sufficient.
129. It must here be stated that, while the prohibition at issue does not of itself make it possible to prevent the development of the illegal trade in cigarettes in the Community, having particular regard to the fact that cigarettes which do not comply with the requirements of Article 3(1) of the Directive may also be placed illegally on the Community market after being manufactured in non-member countries, the Community legislature did not overstep the bounds of its discretion when it considered that such a prohibition nevertheless constitutes a measure likely to make an effective contribution to limiting the risk of growth in the illegal trafficking of cigarettes and to preventing the consequent undermining of the internal market.
130. Nor has it been established that reinforcing controls would in the circumstances be enough to attain the objective pursued by the contested provision. It must be observed that the prohibition on manufacture at issue is especially appropriate for preventing at source deflections in trade affecting cigarettes manufactured in the Community for export to non-member countries, deflections which amount to a form of fraud which, ex hypothesi, it is not possible to combat as efficiently by means of an alternative measure such as reinforcing controls on the Community's frontiers."
Drawing the threads together
a) Approximately 4.5% of children between 11 to 18 years who smoke usually obtain their cigarettes from TVMs. Over the years there has been some variation in this figure but it does not affect it in substance. This suggests that the existing limited sanctions are not on their own an effective means of regulating the sale of cigarettes so as to prevent sales to children;
b) The results of the voluntary code for the siting of TVMs where their use could be supervised by adults were unfavourable. Mr Pascal claims that the siting guidance was "very effective" for the purpose of reducing underage sales to children, but the Secretary of State was entitled to prefer the information on this matter available to him. It cannot be said that the significance attached by the Secretary of State to the failure of the siting code (see for example paragraph 12 of the letter of 4 February 2010) was unreasonable;
c) There had been a short trial of ARM, but it revealed significant human error and its results could not necessarily be extrapolated on to wider basis;
d) There would be no means of preventing repeat offenders from having TVMs on their premises;
e) There would be no statutory regulation of the siting of TVMs;
f) There were risks to health from the use of cigarettes to which children were uniquely vulnerable;
g) A ban would, as a consequence, also aid adult health;
h) There would be no regulation of non-compliance with the voluntary code other than s 7 of the 1933 Act and (where applicable) s 145 of the Licensed Premises Act 2003. The evidence was that, despite these provisions, there were illegal sales to underage persons at 58% of the TVMs tested. There would be little basis for thinking that the position would be any better simply because of the threat of a new sanction, namely a complete ban on TVMs;
i) Although there was no argument on this point, and the point is not in my judgment crucial to the conclusion expressed below, provisionally it seems to me that TVMs may be subject to statutory prohibitions in the display regulations on displaying tobacco products from 6 April 2015 in any event (see the Tobacco Advertising and Promotion (Display) (England) Regulations 2010 as amended). This is likely to make them much less profitable in practice. If this is right, the industry is in terminal decline, and so the cost of the measures to the industry and the economy attributable to a ban on TVMs is reduced;
j) There is no basis for thinking that Parliament's view has changed and, accordingly, no obvious reason why the Secretary of State should decide to take the matter back to Parliament. Parliament, though not binding the Secretary of State to reach the same view, had reached a firm view to reject ARM despite the fact that all members of Parliament had been offered an opportunity to attend a demonstration in the House of Lords showing how ARM worked. As already explained, the effectiveness of ARM still depended on human interaction and there was no guarantee that it would be more satisfactory than the existing age restrictions, which were already backed up by a criminal penalty under section 7 of the 1933 Act. Parliament's view was a considered one and, as such, was capable of informing, though not mandating, the decision of the Secretary of State;
k) The ban was likely to be easier to enforce than compliance with a voluntary code; and
l) It is the view of the Secretary of State, which the court is not in a position to doubt, that by banning TVMs and removing that incentive for tobacco use, the use of tobacco will decline. (Dr Donald Franklin, a Senior Economic Adviser with the Department of Health, also considered that children who could no longer source cigarettes through TVMs would not seek alternative sources.) I agree with the President that this is not a matter that can be demonstrated by scientific proof but it does seem likely that children are attracted to cigarettes by the fact that they can see them in machines and elsewhere, and that they will be less attracted if they can no longer see them sitting there. Miss Rose submits that, if TVMs are banned, children would acquire cigarettes through other outlets (for example, shops) or would resort to sellers of illicit tobacco, which might be more harmful to them. But that is just the sort of predictive judgment to which the precautionary principle endorsed by the Court of Justice applies.
Some observations on the approach of the Master of the Rolls to the legal issues on this appeal
Concluding observations – the wider picture
The Master of the Rolls:
The background to the legislation
Did the Secretary of State correctly interpret section 3A of the 1991 Act?
Proportionality: Luxembourg and Strasbourg
Proportionality: the applicable legal principles
"41. Because the principle [of proportionality] is so general (and may affect a range of issues from the validity of primary legislation … to much narrower points …) it must be related to the particular situation in which it is invoked. …
48. … The margin of appreciation for a decision-maker … may be broad or narrow. The margin is broadest when the national court is concerned with primary legislation enacted by its own legislature in an area where a general policy of the Community must be given effect in the particular economic and social circumstances of the member state in question. The margin narrows gradually rather than abruptly with changes in the character of the decision-maker and the scope of what has to be decided. …
49. … The judge's task was (so far as article 36 was concerned) to see whether the exercise of the Secretary of State's power under section 13 of [the Food Safety Act 1990] Act had been objectively justified and had been shown not to be disproportionate."
The application of proportionality in this case
The case for saying that the ban is disproportionate
i) The ban would affect trade in the EU and destroy their businesses, with severe economic and employment consequences for their owners and employees;
ii) The justification for the ban does not bear analysis (as the appellants contend that the RPC concluded), and
iii) The Secretary of State had failed to consider whether the aim of a ban could be achieved by a far less onerous measure, namely a voluntary code using ARMs.