Wednesday 23 December 2015

Questions raised by the minimum pricing saga

The European Court of Justice made it quite clear today that higher taxes are better than minimum pricing as a 'public health' policy. A bit of a Hobson's choice, admittedly, but if they are right it means that minimum pricing breaches EU trade law (see here for a brief explanation). Nevertheless, they have pushed the matter back to the UK (Scottish) courts to decide. 

The dreadful Nicola Sturgeon immediately said that she would fight on, so there is life in this issue for some time to come. Assuming that minimum pricing is dealt with in the Scottish courts, there are a number of questions. In no particular order...

1. To what extent can the Scots ignore the ECJ? It is, after all, the highest court in Europe. Surely it is there for more than friendly advice. And if the Scottish courts allow MUP, what happens when someone files a complaint to the ECJ about breach of trade law? Won't they have to make a judgement at some point, or is it entirely up to domestic courts how they define 'public health' and 'public morality'? If so, it's not much of a common market.

2. Why didn't the ECJ put the whole thing to bed once and for all? Its summary suggested that the domestic courts are better placed to decide whether minimum pricing is better than tax rises, but why should this be so? Minimum pricing is just a theory. The only evidence for it comes from a computer model (plus some truly awful studies from Canada where MUP as we know it is not in force). The ECJ could have assessed this evidence, such as it is, and come to a decision for the whole EU. Instead it has batted things back to Scotland and will presumably bat it back to any other member state that is daft enough to pursue MUP.

3. Speaking of daft member states, where does this leave Ireland? If the Irish government decides to bring in MUP tomorrow, what then? Does it have to wait for the Scots to make their minds up? Why should it? The Scottish decision won't be binding on any other country. Can the alcohol industry make the ECJ go through the whole process again, this time with Ireland as the focus? 

4. Will the Scottish case see academics taking the stand to defend their evidence? If so, bring it on. It would be wonderful to see Tim Stockwell trying to defend his execrable junk science. I suspect that a lawyer will ask more rigorous questions than the peer reviewers at The Lancet.

5. Will the SNP be able to drop the Whole Population Approach from its submission? The MUPpets made a blunder when they said that reducing everybody's alcohol consumption was one of the aims of minimum pricing. Not only is this the exact opposite of their other stated objective of targeting heavy drinkers, it allowed the ECJ to point out that alcohol duty rises would be a better way of doing it. The Scottish government must be wishing they'd never made this argument, but can they now pretend they never made it?


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