HOLYROOD faces a collision course with Westminster over minimum alcohol pricing after European court claimed the policy needs to be better than other measures aimed at improving public health, according to a leading expert.
The European Court of Justice's opinion suggested that minimum unit pricing (MUP) for booze had to be proven to be more effective than, for example increasing taxes, in improving health, if it was to be legal.
But with the Scottish Government lacking the devolved powers to increase alcohol duty and demonstrate its effectiveness or lack of, there are predictions the debate could extend to both parliaments.
In his opinion released yesterday, Yves Bot, European Court of Justice Advocate General, said the policy system risked infringing the principle of the free movement of goods and would only be legal if it could be shown that no other mechanism was capable of achieving the desired result of protecting public health.
The Advocate General suggested that increasing taxation of alcohol could be an alternative and it would be for the Scottish government to prove that this was not a suitable means of curbing excessive consumption of alcohol.
He said: “A Member State can choose rules imposing a minimum retail price of alcoholic beverages, which restricts trade within the European Union and distorts competition, rather than increased taxation of those products, only on condition that it shows that the measure chosen presents additional advantages or fewer disadvantages by comparison with the alternative measure.”
But leading licensing lawyer Jack Cummins said that as Scotland was not an EU member state it had no choice between MUP or increased taxation.
Mr Cummins, who has advised Scottish ministers on issues around alcohol over several years, added that a reluctance by the UK Conservative Government to embrace minimum pricing meant it was unlikely an agreement would be struck.
He said: “In effect, the Advocate General suggests that, for the minimum pricing legislation to succeed, it’s for Scottish Ministers to demonstrate that increased excise duty isn’t capable of achieving the ‘targeted objective’ of combating hazardous and harmful drinking.
“But that’s something of a surreal, or at least artificial, exercise.
“Since Scotland isn’t an EU Member State with a power to raise alcohol duties, there’s positively no choice between the two mechanisms, unless that power is devolved to the Scottish Parliament.
"With the Tory Government less than enthusiastic about stiffer drinks pricing, it’s not hard to see the potential for Holyrood-Westminster conflict if, as I believe, minimum pricing is finally defeated.”
Health minister Shona Robison said: “The Advocate General has made clear that minimum unit pricing has to demonstrate benefits over taxation, or fewer disadvantages over taxation, and that furthermore, we must demonstrate effectiveness and functionality.
“MUP is specifically targeted at the cheap, strong alcohol favoured by heavy drinkers that does so much harm in our communities. We are confident in the arguments we can make that MUP is the best public health measure to take.”
Yesterday, supporters and opponents of the Scottish Government's flagship alcohol policy both claiming advantage and insisting it supports their stance.
Health experts have said the case for minimum unit pricing had already been made in Scotland's courts, with the Europe's eventual ruling going back to the Court of Session for a final decision.
The Scotch Whisky Association (SWA), which brought the challenge to the policy to Europe, however said the opinion by Yves Bot, European Court of Justice Advocate General, encouraged its view that minimum pricing would be ruled illegal.
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