14 March 2009

It's only bad if the SNP do it, apparently

The Scotsman, 7 March:

SERIOUS concerns have been raised in Whitehall over the legality of plans by the Scottish Government to introduce a minimum price for alcohol.

The Scotsman has learned UK ministers have been briefed that the proposal announced by the SNP on Monday breaks European competition laws.

And with at least two major trade organisations preparing legal challenges to minimum pricing, there is concern that the Scottish Government's actions might see UK government ministers dragged through the courts.

Civil servants have warned UK ministers that the Westminster government is responsible for maintaining European regulations and it would be held legally accountable, rather than the Scottish Government, if ministers in Holyrood pressed ahead with the proposal...

But a senior Whitehall source told The Scotsman: "Basically we have been told minimum pricing is completely illegal.

"We are worried this will mean we will be taken to court as the responsible authority.

"The Scottish Government's proposal appears to be ill-thought-out and we don't even think it will work, because what is needed is a cultural change in Scotland and that is not going to be effected by making booze more expensive."

BBC News, 14 March:

The government's top medical adviser has drawn up plans for a minimum price for alcohol which would double the cost of some drinks in England.

Under the proposal from Sir Liam Donaldson, no drinks could be sold for less than 50 pence per unit of alcohol they contain.

It would mean most bottles of wine could not be sold for less than £4.50.

The proposal is aimed at tackling alcohol misuse and is set out in his annual report on the nation's health.

Harold Wilson was right: a week truly is a long time in politics. When Nicola Sturgeon and Kenny MacAskill suggest a minimum price on alcohol, it might breach European law. Yet the UK Chief Medical Officer is willing to look at the idea himself.

So the question is, has Sir Liam checked the legal position, and if so, why is minimum pricing legal when it's suggested by him and not the Scottish Government?

Here's another question: if he is on a sound legal footing, can we trust any Whitehall pronouncement about the supposed illegality of Scottish Government proposals ever again?

Perhaps the Government just doesn't see the need to keep Sir Liam's wings clipped. And if that's the case, then devolution is basically being exposed as a cheap sham of autonomy.

It's time for the real thing.


scunnert said...

How can we ever trust them again? Never did - they're lying, two faced, snakes in the grass.

Personally I think Kenny is daft trying to bring forward this legislation. It's contentious and a vote loser.

WV = dognead

Grogipher said...

I agree that it might lose a few votes (despite it being describe as 'populist'), but if it saves lives, is that not maybe worth it? Every policy decision will put some people off.

I wouldn't *quite* call myself an expert, but I can't see how this is illegal under any EU Competition Law. Just another case of Rule Britannia, Britannia waves the rules...

Scott @ loveandgarbage said...

I agree with the policy (as I agreed with the smoking ban - despite my general liberal tendencies). This has been much the most impressive policy put forward by the justice minister, and is something that could make a lasting difference to Scottish culture. I understand though that the concerns regarding the SNP policy were partly on a devolution issue (consumer sales are reserved although international sales are not - bizarrely! - hence the use of BNicola Sturgeon to promote the pol,icy leading me to suspect it would be presented as a health issue (like the smoking ban) attempting to bring it within the devolved competetence) partly on an Eu issue - which constitutes a devolution issue within Scotland given the terms of the Scotland Act. The EU issue relates to general competition law problems and would affect Westminster as well as Scotland. Any Westminster legislation has under the European Communities Act to accord with EU law. If it does not the Court of Justice can strike down the legislation and empowers the British courts to similarly disapply the UK legislation (it happened in the late 80s/early 90s regarding merchant shipping). My understanding is the competition law case is strong and would open up affected individuals (as was the case with merchant shipping) to raise challenges. I suspect that the legal advice on both sides of the border willm be that it is not competent unless at EU level. So we'll see how BERR's lawyers reac to the chief medical officer decision.

Best wishes


Grogipher said...

If this wouldn't pass EU law, how does Sweden's state monopoly pass?

Scott @ loveandgarbage said...

I try to avoid quoting legal stuff because folk generally find it arid. However, note that the Court of Justice has ruled against minimum prices as proposed by the state in relation to some products in Case C-302/00 and note that where the pricing policy is for a health benefit (eg for tobacco) Case C-216/98 the CJEC has indicated that taxation is the more appropriate mechanism.

I remain of the view that I'd be surprised if such legislation could be passed at UK or EU level. Re: Sweden, when was the state monopoly established? Was it pe-entry to the EU? Remember that when the UK was negotiating entry to the EU parts of Scotland and ENgland were affected by nationalised pubs.

best wishes


Graeme said...

I'm not really getting the gist of the post here, as Liam didn't get involved in the Scottish policy issue last week and he's similarly been given the bum's rush by the UK government.

Will said...

Scott, I'm fascinated by the legal side of it, and if the advice is correct, then it shows that there is a big problem: the Scottish Government has been caught with its pants down twice now over legality issues and the UK Government's CMO is now falling foul of it. Perhaps there's a real competence issue in terms of Government legal advice, and it's time for reform?

Graeme, the distinction between the mutterings against the Scottish Governmnet and the rejection of Sir Liam's advice is that Sir Liam's proposal has been rejected on policy grounds, but legal reasons have been used as a potential manner of blocking the SG's proposals.

Further, Sir Liam would have been aware of the Scottish proposals, and the reaction to them, when he made his intervention, and decided to press on. That is the point of the post.