Case summary: Cigarette vending machine ban not breach of human rights

6 December 2010 by

Sinclair Collis Limited, The Members of National Association of Cigarette Machine Operators (Interested Party) v Secretary of State for Health [2010] EWHC 3112 (Admin)Read judgment or Rosalind English’s analysis of the decision

The High Court has ruled that the Secretary of State for Health did not breach the human right to peaceful enjoyment of property or European Union law by banning the sale of tobacco products from automatic vending machines.

The Protection from Tobacco (Sales from Vending Machines) Regulations 2010 were made pursuant to the Health Act 2009. Prior to the passing of the 2009 Act, the Ministry of Health had conducted consultations and drawn up various papers setting out the findings and including complex calculations assessing the cost/benefit of bringing in various measures. The stated aim was to reduce smoking by those under 18. An outright ban was considered and the use of age restriction technology (such as vending machines being remotely controlled by bar staff so that a purchaser’s age could be verified) was the preferred method of achieving the aim.

A Bill was presented to Parliament with the primary aim of reducing smoking in under 18s and suggesting the age restriction technology method. However, the Health Act 2009 was passed after amendment of the Bill so that the Secretary of State for Health could only make Regulations banning the sale of tobacco from vending machines, rather than requiring the use of age restriction technology.

The Claimants (including the Interested Party) had business interests involving the sale of tobacco products from vending machines and would all be negatively affected by the ban when it came into force.

The claims

The Claimants sought judicial review of Parliament’s passing of the 2009 Act and the action by the Secretary of State in creating the Regulations, making two distinct claims:

First, the Secretary of State accepted that the Regulations fell within Article 34 of the Treaty on the Functioning of the European Union, which prohibits quantitative restrictions on imports between Member States of the EU, but the Claimants disputed the minister’s argument that the measures were justified under Article 36 on the basis of the protection of health and life of humans.

Secondly, the Claimants argued that the measure breached Article 1 Protocol 1 to the European Convention on Human Rights which provides that every natural and legal person is entitled to peaceful enjoyment of his possessions so that no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

Article 34

In relation to Article 34, the Claimants’ case was that:

a)      In making the Regulations, the minister purported to rely on an objective which was not an aim of the legislation, primarily because the Bill had been presented to Parliament as designed to prevent smoking by children, not adults. The minister had relied on the aim of reducing smoking by adults when producing the Final Impact Assessment which was issued with the Regulations. The Claimants argued that this meant the aim was not legitimate;

b)      The minister was misinformed as to material facts relating to the cost/benefit analysis in the material which was produced during the consultation period for the legislation because the calculations were wrong or based on assumptions;

c)       There was a less restrictive alternative means available to achieve the legitimate aim of reducing smoking among under 18 year olds which the Government itself regarded as preferable until Parliament withdrew that option from the legislation;

d)      The ban was not proportionate and could not be justified under Article 36.

Human right to peaceful enjoyment of property

In relation to A1P1, the Claimants’ case was similar. The relevant test was whether the ban was properly deemed by Parliament to be “necessary to control the use of property in accordance with the general interest” (A1P1). The Claimants argued that the ban would deprive them of their possessions without compensation, rather than merely restricting their use. They argued that while implementing technology to restrict the age of vending machine users may have struck a fair and proportionate balance, the outright ban would not.

The Secretary of State argued that the ban was not a deprivation of property, but rather a mechanism for controlling the use of the property, which will remain that of the Claimants. It was argued that Parliament was entitled to consider that the relevant legislation strikes a fair balance between the public health interest and the interests of those whose businesses will be affected by the ban. It is not for the court to consider whether the ban is in the public interest (a question for Parliament) but only whether the measure is proportionate. The more the ban concerns broad social policy, the less ready the court should be to intervene.

Claim rejected

Sir Anthony May found that Parliament’s primary aim in passing the Health Act 2009 was to reduce the availability and uptake of cigarettes among under 18 year olds and that this might incidentally contribute to a reduction in adult smoking. Parliament must have considered that a ban on vending machines would have this effect on under 18 year olds and be more effective than the use of mandatory age restriction technology. He further considered that this aim was legitimate and that Parliament was entitled to come to the conclusions it did about the effect of banning vending machines as opposed to implementing age restriction technology.

In relation to A1P1, he considered that this was not a true deprivation case, but a case where use of possessions was controlled. As a result,

…provided the legislature could properly take the view that the benefit to the community outweighed the detriment to the individual, the necessary fair balance would be struck without any requirement for compensation (paragraph 94).

The legislature’s judgment about what it deems necessary will be interfered with only when it is manifestly without foundation. He did not consider that the complex financial balancing acts in the material which led to the passing of the legislation were what Parliament was concerned with or needed to concern itself with, because,

The true comparison was, in my judgment, between an unquantifiable health benefit and the broad scale and nature of the detriment which a ban would cause (paragraph 94).

He was not persuaded that the Claimants had demonstrated a breach of A1P1:

The question for the court, therefore, is whether the Parliamentary judgment that the general community interest in reducing the take up of cigarettes by those under 18 to the benefit of the nation’s health and an incidental possible benefit for adults outweighed the relevant rights derived from Article 1 of the First Protocol was manifestly without foundation so as to be disproportionate. (Paragraph 94, emphasis added).

He was not persuaded that this was the case, not least because the ban was passed against a background of a wider programme with the objective of reducing smoking generally.

As to the questions of justification and proportionality under Article 36 TFEU,

…where quantitative restrictions on imports are sought to be justified on the ground of the protection of human health and the measure is effected by primary legislation of the national legislature, the legislature’s margin of discretion is broad and the court will not interfere unless the measure was in error as being manifestly unreasonable or inappropriate (paragraph 95).

However, the court would be right to consider the appropriateness of the ban to achieve its aims and whether it goes beyond what is necessary to achieve them. As Parliament had found that age restriction technology was inadequate to achieve the aims, the ban was appropriate. It was also no more than necessary to achieve the aims. Sir Anthony May found it difficult to imagine a proportionality judgment which did not involve a comparison of the benefits and detrimental effects of the measure in question. The comparison in this case was essentially the same as that considered under A1P1. As a consequence, the ban was neither manifestly unreasonable nor inappropriate.

Consequently, both claims were dismissed.

You can read Rosalind English’s analysis of the decision here

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