Analysis: Cigarette vending machine ban not breach of human rights

6 December 2010 by Rosalind English

This morning we reported on the case of Sinclair Collis Ltd v Secretary of State for Health & Anor [2010] EWHC 3112 (Admin) – see Isabel McArdle’s post on the case. Rosalind English analyses the implications of the High Court’s decision.

Hard on the heels of Petsafe, the administrative court has been asked once again to give close attention to Article 36 TFEU and member states’ scope for imposing restrictions to free movement of goods (see our post on the “health of animals” derogation).  It seems that human health is such a core value of the common market that any reference to it by way of justifying a ban or restriction on goods or services is very hard to resist, particularly when the step is one taken by the legislature rather than the executive.

In any case involving tobacco the  threshold set by Article 36 for the human health derogation will be set particularly low. It was an important part of the Claimants’ argument on proportionality, for example, that helping adults to quit smoking  was an aim that crept in to the assessment at a late stage and therefore should not be seen as legitimate,  largely because the Bill was not presented to Parliament on that basis. They maintained that this particular measure formed no part of the defendant’s original regulatory impact assessment, and that therefore the contemporaneous justification for the measure should be discounted as a legitimate aim.

The fact that Sir Anthony May rejected this line of reasoning and accepted adult health as a “consequential benefit” should come as no surprise, presumably because the Article 36 “human health” requirement cannot be parsed down into child health and adult health, as the Claimants were contending.  Indeed the European Commission in their Guide defines this justification as “public health” – an aim that could legitimate all manner of quantitative restrictions (see Para 6.1.2. of its Guide to Free Movement of Goods).  It is in fact a mantra of EU law that one of the duties of the Community legislature itself is to ensure “a high level of health protection”; see the ruling by the ECJ and the Opinion of Advocate General Geelhoed in case C-491/01 R v Secretary of State ex parte BAT and Imperial Tobacco [2002] ECR I-11453 at paragraphs 119-121 and 229-230.

Human health will therefore invariably be regarded as a powerful reason for determining that any number of restrictive measures relating to the manufacture and trade in certain products are appropriate.  Elsewhere, health is referred to as the “general policy” of the Community (R v Secretary of State for Health ex parte Eastside Cheese (1999) 3 CMLR 123). In fact the plethora of EU legislation designed since the inception of the Community to suppress any national measures perceived as remotely unhygienic would suggest that health is an aim which in reality takes precedence over its three fundamental freedoms of movement of goods, services and people.

Once we have recognised the intrinsic inequality of the aims listed in Article 36 and the other “mandatory requirements” under which the EU allows the free movement of goods and services occasionally to be interrupted or restricted, it follows that the test for the proportionality of the measures adopted to secure those aims will vary according to what the aim is. (The other permitted aims are: public morality, public policy or public security; the protection of health of animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property.)  With human health at the apex of this system, the assessment of the measures adopted to secure any of these aims is not, as Lord Steyn suggested in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, a “one size fits all” test.    Nevertheless, it is still an economic Union and as Sir Anthony May says, there is an “air of unreality” about carrying out the proportionality test in this context:

comparing … the largely economic interests of businesses importing goods from other Member States with politically driven measures aimed at protecting the nation’s health.

Perhaps the unreality of this equation can be solved by looking at public health as a core value of the community as a whole, whose existence is dependent on the free movement of goods and services. Put like that, rather than calibrating the legitimacy of  a measure in terms of the commercial consequences of restrictive measures for private companies, the notion of proportionality seems less disingenuous. But Sir Anthony May was not prepared to go so far as to accept the Secretary of State’s contention that a money calculation should play no part in determining the proportionality of health measures:

I find this intellectually difficult. Either the cost/benefit analysis has a part to play or it does not. If a decision to legislate is proportionate whatever the result of the cost/benefit analysis, why carry out the analysis?

Why indeed – Member States are entitled to decide the ways in which human health is to be protected, but in doing so, they cannot ride roughshod over the economic rights protected by the EU any more than they can the political rights protected by ECHR. This does not mean that laws can only stand if their aim is justified by hard evidence, as the Claimants contended. That requirement would mean most legislative proposals would be stillborn. But the test for proportionality does necessitate some financial calculation, whether the measure is one restricting Community trade or one interfering with an ECHR right (in this case Article 1 Protocol 1). Their legitimacy involves the same question; has the legislature struck the necessary fair balance between the benefit to the community and the detriment to the individual? But where quantitative restrictions on imports are sought to be justified on the ground of the protection of human health any proportionality challenge is pretty much doomed to failure:

the legislature’s margin of discretion is broad … the court will not interfere unless the measure was in error as being manifestly unreasonable or inappropriate. …. the admitted interferences with the free movement of goods were an incidental and unintended consequence of a measure of social reform to protect human health.

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