Scottish Court of Session Decisions

Petitioners: Ms M Ross; Brodies LLP

Respondents: Duncan, QC; Scottish Government Legal Dictorate

Minuters: Poole, QC; Patrick Campbell & Co

26 September 2012

[1] This is an application by Alcohol Focus Scotland ("AFS") for permission to intervene in the public interest in a judicial review application by The Scotch Whisky Association and two European bodies which represent producers of spirit drinks and the wine industry and trade respectively ("the petitioners"). The petitioners' application is for judicial review of the Alcohol (Minimum Pricing) (Scotland) Act 2012 ("the 2012 Act") and related decisions. The petitioners' challenge to the 2012 Act includes assertions (i) that it was outwith the legislative competence of the Scottish Parliament, and (ii) that there was no evidential basis for the belief that the 2012 Act by imposing a minimum price would reduce the harmful consumption of alcohol or improve the public health of the general population.

[2] AFS seeks to lodge a written submission which will not exceed 5,000 words and will be supported by documents if the other parties to the proceedings have not produced those documents. AFS does not seek to be represented at any hearings in the judicial review application or take part in the proceedings in any other way. It seeks to include in its proposed written submission arguments:

(1) that there is evidence that the 2012 Act and related decisions have a public health purpose and will bring public health benefits;

(2) that under the Scotland Act 1998 the Scottish Parliament has power to enact public health measures, including the 2012 Act; and

(3) that the 2012 Act does not contravene the prohibition in EU law of quantitative restrictions on imports between Member States and all measures having equivalent effect. In particular in relation to this third ground AFS seeks to focus on (i) the relevance of the health concerns to justification of the 2012 Act, (ii) the role of the protective principle in justification, (iii) the "least restrictive alternative" principle and alternative measures which have been taken in Scotland, both of which are relevant to an assessment of proportionality and (iv) the position in other countries.

[3] AFS also applies for an order at the outset of its involvement that there will be no liability for expenses by any party in respect of its Minute and written intervention, including any procedure following on the written intervention.

[4] The petitioners oppose the application to intervene. First, they argue that AFS receives a significant part of its funding from the Scottish Government and that it is not truly independent. They submit that it is not clear what AFS can bring to the proceedings to supplement the arguments which the Lord Advocate and the Advocate General for Scotland will put forward. Accordingly, AFS has not shown that the propositions which it is likely to advance would assist the court. Secondly, if the court were not to accept that submission, the petitioners submit that AFS's intervention should be confined to a demonstration that there was evidence that the 2012 Act would have public health benefits. In relation to the motion to exempt parties from liability in expenses in relation to the minute and intervention, the petitioners submit that the intervention, whose terms are not yet known, would cause them to incur expense. It is not appropriate to exclude liability in expenses at this stage. In any event, because a significant proportion of AFS's funds are from public sources, any protection should take the form of a cap on liability rather than its outright exclusion.

Discussion

[5] Rule 58.8A of the Rules of the Court of Session governs applications for public interest interventions. It is not disputed that the policy behind the rule is that some judicial review applications raise issues of public interest which affect persons beyond the petitioners and the respondents in a particular application and that the intervention of those persons with focused submissions on relevant issues might assist the court in reaching its determination. Rule 58.8A, which was introduced in 2000, has rarely been invoked. This is in contrast with the experience of the United Kingdom Supreme Court which frequently authorises public interest interventions. It may be that concerns about liability in expenses have been a deterrent in this jurisdiction, although in recent years the court has asserted its power to make protective expenses orders.

[6] The Rule empowers the court to permit a public interest intervention if it is satisfied on three matters (RC 58.8A(6)). First, both the judicial review application and the issue which the would-be intervener wishes to address must raise a matter of public interest. Secondly, the propositions which the would-be intervener wishes to advance are relevant to the judicial review application and are likely to assist the court. Thirdly, the intervention will not unduly delay or otherwise prejudice the rights of the parties, including their potential liability for expenses. The three criteria are cumulative. I consider each in turn.

[7] The petitioners accept that the judicial review application raises a matter of public interest and do not suggest that the matters which AFS wishes to address are matters of public interest. I agree with that concession. The industries which the petitioners represent include companies which make a substantial contribution to the national economy and their products when used responsibly contribute to human happiness. But the abuse of alcoholic drinks and the harm which the abusers cause to themselves and others is a matter of general public concern both in this jurisdiction and throughout the United Kingdom.

[8] The petitioners' principal attack, which is the first of the three arguments which I set out in paragraph [4] above, is on the second criterion. I am not persuaded that it has substance. AFS is a company limited by guarantee and a registered charitable organisation which provides up to date information and advice on alcohol issues, raises awareness of alcohol-related problems, provides training courses and seeks to influence national policy in relation to alcohol. In recent years it has received core grant funding from the Scottish Ministers which has amounted to between 30% and 40% of its income. As a result the Scottish Ministers have an interest in the use of that funding; see the recommendations in the 2012 external review of AFS by Griesbach & Associates. But that does not make AFS the mouthpiece of the Scottish Ministers. Ms Poole submits, and I accept, that AFS acts as a pressure group in relation to alcohol policy and has a view that is distinct from the views of the Scottish Ministers. The external review stated that

"AFS has positioned itself as the leading independent voice on alcohol in Scotland. It has had an influence on the current direction of alcohol policy in Scotland, and is beginning to have an influence across the UK and internationally."

(Executive Summary p.3 para 14)

Ms Poole explains that AFS has allocated £3,000 to the proposed intervention and that that money would be drawn from income from its charitable activities and not from its publicly-funded core grant.

[9] I recognise that it is difficult to judge, except in very general terms, whether the intended propositions will assist the court until the would-be intervener has formulated them in the intervention. I have to reach a view on the basis of what AFS has stated in its Minute and in an email message (Pro 15) about the focus of its intended submissions. In my view it is likely that the court would derive some assistance from AFS's perspective both in relation to the evidence which is said to support the 2012 Act and also from its proposed legal submissions (headings (2) and (3) in paragraph [2] above). The probability that the submissions will overlap those of the respondents in some respects does not prevent them being of assistance. I am therefore satisfied that the second criterion of Rule 58.8A(6) is met.

[10] The court has allocated a six-day hearing starting on 23 October 2012 for the first hearing in the judicial review. AFS proposes to lodge its submissions by 4 October 2012 and any supporting documents, which the other parties have not produced, on 17 October 2012. Its intervention if permitted will not delay the hearing. In the context of the various issues which the parties will debate at the hearing I am not persuaded that the petitioners' response to AFS's submission will significantly extend the length of the hearing so as to threaten its completion within the allocated time. Nor am I persuaded that the petitioners will incur significant extra cost in responding to the proposed submission. I am satisfied therefore that the submission would not cause undue delay or prejudice to the rights of the parties. The third criterion is therefore met.

[11] Rule 58.8A(7) empowers the court to impose terms and conditions in the interests of justice, including the making of provision in relation to any additional expenses incurred by the parties as a result of the intervention. Ms Poole seeks to invoke that power to obtain at the outset an order that no party will incur liability to another in respect of the intervention but that each will bear its own costs.

[12] Since 2006 this court has shown itself willing in appropriate cases to make protective expenses orders to a party in suitable cases which raise issues of general public interest: McArthur v Lord Advocate 2006 SLT 170, Marco McGinty, Petr [2010] CSOH 5. In my view the court can adopt a similar approach in exercise of its power under Rule 58.8(7). I consider that if an individual or organisation wishes to make a public interest intervention with the protection of such an order he, she or it has an obligation to act responsibly to minimise the cost to other parties of the intervention. The court should be assiduous to prevent the misuse of the opportunity which the Rule and a protective expenses order confer. To that end it is helpful if a would-be intervener, as AFS has in this case, places limits on the method of its proposed intervention and focuses the issues which it proposes to raise. If a would-be intervener does not do so the court can use its powers under Rule 58.8A(7) to impose conditions on the proposed intervention.

[13] I am persuaded that it is appropriate to make the order which Ms Poole seeks now. I do not treat as significant the fact that AFS receives substantial public funding. That is spent on its charitable activities and it has operated in recent years with an annual deficit. AFS has committed itself to use resources which were not obtained from public funds to supply the modest sum (£3,000) which it intends to spend on its intervention. I do not think that it is appropriate to await the intervention before making an order in relation to expenses. Ms Poole states, and I accept, that AFS would not make the intervention at all unless it is protected against an award of expenses. I have regard to the method and limited nature of the proposed intervention in the context of the various issues raised in the judicial review application, including those on which AFS will make no submission. I am satisfied that it is in the interests of justice to make an order providing that there should be no liability by any party in expenses in relation to the intervention rather than one which caps AFS's liability. In reaching this view I have also had regard to the considerations (i) that the issues raised in the judicial review application are of general public importance, (ii) that there is a public interest in the resolution of those issues, (iii) that AFS has no private interest in the outcome of that application (iv) that the resources available to the petitioners and the limited nature of the proposed intervention mean that that intervention will not impose a significant extra burden on the petitioners in the context of their judicial review challenge and (v) that AFS would be acting reasonably in not making its intervention in the absence of the order which it seeks.

Conclusion

[14] I therefore grant permission to AFS to intervene in this petition by way of written submission not exceeding 5,000 words on the issues raised in the Minute as clarified by the email (Pro 15). I appoint AFS to intimate and lodge in process its submission by close of business on 4 October 2012 and to lodge any supporting documentation, which the other parties have not produced, by close of business on 17 October 2012. I also make an order under Rule 58.8A(7) that no party will be liable to another in expenses in respect of the Minute and written intervention or any procedure following thereon.