The last tango of the fag packet machine?

20 June 2011 by David Hart KC

Sinclair Collis Ltd, R (o.t.a) v. The Secretary of State for Health [2011] EWCA Civ 437 read judgment here

Sinclair Collis own cigarette machines, some 20,000 of them. So when cigarette machines were banned by law, there was nowhere for their owners to go, apart from the Courts. On Friday, the Court of Appeal dismissed their challenge to the ban, but there was a powerful dissent from Laws LJ on both the law and its application. This makes the prospect of an appeal to the Supreme Court all the more likely. Even that might not be the end of the line, if the SCt refer the case to Europe.

The case – all 70+ pages of the decision – is an object lesson in how to challenge a ban. But, hang on, some of you will say, how can you challenge a ban once it has become the law? Well, until 1973 you couldn’t. That is when we gained the first way of challenging a law, through joining the EEC and thus taking on the obligation to make our laws EEC-compliant. This was Sinclair Collis’s first string to its bow.  In 2000, the second string arrived – the coming into force of the Human Rights Act.  But there is still no third string – no purely domestic challenge to legislation once enacted – Parliament is still sovereign.

How did this ban arise? In November 2009 Parliament enacted s.22 of the Health Act 2009, which enabled the Government to bring in a ban by a statutory instrument, i.e. secondary legislation, which it did sharpish, in March 2010. So the challenge was both to the Act of Parliament and to the secondary legislation.

The grounds

The two grounds of challenge are simply stated. Article 34 of the relevant EU Treaty (TFEU) prohibits “quantitative restrictions on imports and all measures having equivalent effect.” Article 1 of Protocol 1 of the ECHR protects the peaceful enjoyment of possessions. The ban offended both Articles.

As ever, the main battleground in our case lay in the proviso to each Article. Article 36 TFEU makes it clear that Article 34 shall not preclude prohibitions or restrictions based upon public health; and A1P1 ECHR enables property to be affected if it is in the public interest. But it is not enough for Government to tick the public health or public interest box; it must show that the prohibition was “proportionate” – in the time-honoured metaphor, no sledgehammer is needed if all you are faced with is a nut which can be cracked in a different way.

Sinclair Collis’s central point was that an absolute ban was disproportionate. Given that the primary justification was stopping children taking up smoking, why not make all cigarette machines have an Age Restriction Mechanism (e.g. you get a token by going to the bar and proving your age) instead of the outright ban?

The result

Laws LJ ultimately accepted this argument and would have quashed the ban. Lord Neuberger MR and Arden LJ disagreed. In the disagreement lay two major differences. The first was of law, the second its application to the facts.

EU Proportionality: how many strands?

The legal difference is – how do you apply proportionality in a case about domestic law-making? The difference arises because the cases, according to Arden LJ, lay out one test of proportionality for lawmakers and another test or tests for other decision-makers. When you are looking at the decisions of Community and national lawmakers, they should be respected unless the measure at issue is “manifestly inappropriate”.  Mere municipal decision-makers on the other hand are accorded less leeway.  Where there is a choice between several appropriate measures, recourse must be had to the least onerous of those measures, failing which the decision will be quashable.

Laws LJ disagreed; there is no sharply different test of manifest inappropriateness in public health cases. It may be that “the margin of appreciation” – the level of discretion –  afforded to the decision-maker will differ depending whom that decision-maker is, but in this case, the relevant minister had failed to consider the merits of the least onerous option (ARM, not ban). Therefore the challenge should have succeeded.

But who made the decision?

One of the important sub-issues which arose concerned the nature of the lawmaking process. The cases suggest that it is easier to uphold primary legislation (an Act of Parliament) than secondary legislation in response to a proportionality challenge. Here we had a bit of both, the Act which enables the prohibition to be made but does not require it, and then the Secretary of State who opts for a prohibition via secondary legislation (albeit that even that is laid before Parliament). The Secretary of State, defending the case, contended that the prohibition was pursuant to the will of Parliament. Laws LJ begged to differ; the only thing willed by Parliament was the conferring of a discretion upon the Secretary of State. Arden LJ thought there was rather more to it than that; the Secretary of State and Parliament were engaged on a common enterprise, with the Secretary of State as the junior partner (para.151). Lord Neuberger was rather closer to Laws LJ (para.212).

EU Margin of appreciation meets proportionality

Laws LJ acknowledged that public health was of such importance that it conferred a broad margin of appreciation on the decision-maker, but still the usual standards of proportionality applied. Given all that,

…how is the decision-maker’s broad margin of appreciation actually to be made good? The answer is that the court leaves a wider space for the decision-maker’s own judgment as to the application of the standards. The question the standards represent must still be asked and answered, first by the decision-maker himself; but the broader the margin of appreciation, the less inclined the court will be to strike an autonomous balance of the material factors.” para.50

Arden LJ disagreed; the proportionality test in the case of public health measures enabled a challenge to succeed only when the measure was manifestly inappropriate having regard to the objective which the lawmaker is seeking to pursue. Hence, as she put it in paras.126-127

The effect of the level of intensity of review denoted by the expression “manifestly inappropriate” is that the Court of Justice does not apply the “least intrusive means” requirement as in FEDESA, or, if it does, it applies it with the lower level of intensity of scrutiny consistent with the “manifestly inappropriate” level…”

…Not all member states will seek to protect public health in the same way. European Union law allows for that choice to be made by the national legislature, not free from EU control but with a much less intensive level of scrutiny than under a strict test of proportionality.

She did however disagree with the SoS’s submission that there were only two tests; she thought that other tests may exist at various points on the spectrum between strict scrutiny and very light scrutiny. In an odd reversal of the sledgehammer metaphor, she described the role of the judiciary in reviewing public health measures as one of taking

a spirit level or chisel to the task, rather than the heavy-handed hammer of the strict test of proportionality.

Lord Neuberger MR, without expressly agreeing with Arden LJ, was close to her view at paras. 202-203; yes, a Member State has an obligation to opt for the “less restrictive alternative” and a failure to do so will constitute a breach of the proportionality principle, but :

…where there is an alternative possible measure, there may be a difference in view as to which measure would be less onerous, and, unless the view of the Member State’s government that its measure is the more appropriate is manifestly wrong, the court should not substitute its own view for that of the government.

Hence, the court should avoid being too exacting when it comes to an attack on the evidence on which the measure is based.

On the other hand, disagreeing with Arden LJ, the Master of the Rolls would apply a narrower margin of appreciation to the decision of the SoS than to a Community institution or Parliament: para.214.

HR proportionality

The proportionality principle is also an important part of Strasbourg case law. But is it the same as the EU proportionality principle? This depends on the context, but when you are looking at the economic effects of a public health measure, the principles effectively shade into one.

The CA discussed A1P1 relatively briefly, not least because Sinclair Collis said that EU law required a more intrusive standard of review than that required by A1P1 – if they lost the former, they weren’t going to win the latter. At para.54, Laws LJ approved a dictum of Lord Brown in the Countryside Alliance case to the effect that the economic rights under the Treaty were more akin to the  property rights protected by A1P1 than to the core rights of the Convention, protected for under Articles 8-11

and therefore to be more readily overridden in the broad public interest than the Convention’s core rights.

At paras.146-7, Arden LJ pointed out that there were a large number of ECtHR cases (she cited James) where the “least intrusive means” test is not applied as part of the test of proportionality, but cautioned about reading over such cases directly into the EU context, because of the differing roles of the Strasbourg Court (as a supervisory court) and the CJEU (which acts in more than a supervisory role). Lord Neuberger (para.193) emphasised the extent of the overlap between A1P2 and Article 34: after all, the CJEU has ruled in Swedish Match that

the freedom to pursue a trade…, like the right to property, is one of the general principles of Community law.

Hence in these economic case A1P1 may not have much to add.

Conclusion

We shall have to wait and see whether this is indeed the end of the line for cigarette machines. More importantly, anyone who is concerned with the principles of proportionality must get their heads round the three closely-argued judgments in the case, each, as I have shown, pursuing a rather different line through the domestic and Euro caselaw. Not something to be done in a hurry.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

• Pigswill and public health – a load of EU bull
• Admin Court grabs bull by horns
• Electric shock pet collar ban did not breach human rights
• Analysis: Pet shock collar ban – barking, or a new era for rights?
• Analysis: Cigarette vending machine ban not breach of human rights – re the 1st instance decision