The Scotch Whisky Association (SWA) have confirmed they will appeal the recent decision by the Scottish Courts that minimum unit pricing (MUP) was legal and proportionate. The appeal was announced on the final day of the deadline, ignoring calls from health groups and the Scottish Government for the industry to accept the decision.
The latest announcement brings renewed uncertainty over when MUP will be implemented, but arguably less so as to whether it eventually will be. A common interpretation amongst MUP supporters is all the opposing arguments have been addressed and as such the further appeal simply amounts to 'delaying tactics'. The Scottish Government first passed legislation to implement MUP in 2012 but have been forced through various legal hurdles primarily as a result of opposition claims that it contravened EU law. However the European Court of Justice (ECJ) ruled it was for the Scottish Inner House of the Court of Session to decide on MUP who decided it was proportionate and justifiable on health grounds.
The decision on the grant of permission to appeal will be judged by the Inner House of the Court of Session who will decide if they are satisfied that the appeal ‘raises an arguable point of law of general public importance’. If they consider it does, the appeal will go to the UK Supreme Court for consideration. Perhaps more likely, the Inner House may deny permission and the SWA can then apply for permission directly to the Supreme Court who will also consider if the appeal stated raises an issue of ‘general public importance’. If they decide not, the case will be concluded and Scotland will have no legal bar to implementation.
Julie Hesketh-Laird, Scotch Whisky Association acting chief executive, said the decision came "after wide consultation with our member companies" but were appealing given their "strong view that minimum pricing is incompatible with EU law and likely to be ineffective".
Alison Douglas of Alcohol Focus Scotland said the SWA was "ignoring both the will of the Scottish Parliament and the court's decision". She also said "SWA members like Diageo and Pernod Ricard continue to put their shareholders’ profits above the public interest" and were "borrowing from the tactics of the tobacco companies in delaying this live-saving measure".
Eric Carlin, Director of Scottish Health Action on Alcohol Problems (SHAAP) said the SWA's decision "beggars belief" adding:
"They know that they will not win this case in London. Everyone knows that. Meanwhile 22 people die every week. One can only assume that their accountants have calculated that delaying the implementation of MUP will prolong, albeit for a short period, their profit-making from cheap booze, which damages the poor most of all."
The Daily Record also strongly criticised the decision, stating the SWA 'are the puppets of the powerful international drinks industry and their concerns about the health of the country are unconvincing' and that MUP 'would not affect the image of the prestigious malt brands that the SWA purport to defend. But it would hit sales of the low-cost white spirits that the same companies produce and which fuel the chaotically bad health outcomes for Scotland.'
- Scotch whisky body accused of arrogance over minimum pricing - The Guardian
- SWA poised for one last round in MUP legal battle - Scottish Licensed Trade News
- Whisky group takes fight over minimum alcohol pricing to Supreme Court - The Telegraph
- Bid to appeal against minimum alcohol pricing to Supreme Court - The BBC
- Scottish whisky industry to appeal minimum alcohol pricing in UK Supreme Court - Drink Business Review
With thanks to Angus MacCulloch, Senior Lecturer in EU law at Lancaster University, for his input.