Sinclair Collis Ltd v Secretary of State for Health & Anor [2010] EWHC 3112 (Admin)

Case No CO/1906/2010 AND CO/4698/2010[2010] EWHC 3112 (Admin)IN THE HIGH COURT OF JUSTICEADMINISTRATIVE COURTVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 01/12/2010
Before
PRESIDENT OF THE QUEEN'S BENCH DIVISION
Between
SINCLAIR COLLIS LIMITEDClaimantSECRETARY OF STATE FOR HEALTHDefendantTHE MEMBERS OF NATIONAL ASSOCIATION OF CIGARETTE MACHINE OPERATORSInterested Party
Dinah Rose QC and Brian Kennelly (instructed by Ashurst LLP) for ClaimantNicholas Paines QC and Ian Rogers (instructed by DWP/DH Legal Services) for DefendantThomas de la Mare and Iain Steele (instructed by Davies Arnold Cooper) for Interested PartyHearing Hearing dates: 12 th and 13 th October 2010
JudgmentSir Anthony May President of the Queen’s Bench Division:

Introduction

[1]It is well known that Government policy in recent years has consistently been to discourage people from smoking tobacco and to take progressive measures to reduce its harmful and destructive effect. The recent Government publication “A Smokefree Future”, published on 1st February 2010, contains “a comprehensive control strategy for England” and relates facts which in general are very familiar, giving an account of measures which have already been taken. The Foreward by Gillian Merron, then Minister of State for Public Health, refers back to the 1998 Government publication “Smoking Kills”, and tells us that Government action and policy has reduced the number of adult smokers by a fifth to one in five, and more than halved the number of children taking up smoking to under one in fifteen. The Introduction, by the Chief Medical Officer for England, stresses the enormous detrimental effect of tobacco on health, and refers to the real impact which Government policies, including the introduction of smoke free legislation, have had over the past decade. Yet smoking still causes over 80,000 deaths every year and is the leading cause of health inequalities. Smoking-related diseases are said to cost the NHS £2.7bn annually. The Chief Medical Officer proclaims a vision aimed at stopping the inflow of young people recruited as smokers; motivating and assisting every smoker to quit; and protecting families and communities from tobacco-related harm. The Government’s broad policy aim is clear.[2]Among other measures which the Government has taken is the Tobacco Advertising and Promotion Act 2002 which prohibits (subject to some qualification) tobacco advertising. This Act also, by section 8, made it an offence to display in the course of a business tobacco products or their prices in a place where they are offered for sale if the display does not comply with such requirements as may be specified in regulations. Section 21 of the Health Act 2009 inserted by amendment into the 2002 Act new sections 7A-D which will make it an offence, subject to certain exclusions and defences, to display or cause to be displayed tobacco products in a place as defined by regulations. We did not go into the detail of this, but I understand that, when these provisions are in force, it will not be lawful to have tobacco products visibly displayed for retail sale in shops.[3]Another measure was enacted on 12th November 2009 by sections 22 and 23 of the Health Act 2009, and the consequent making on 17th March 2010 of the Protection from Tobacco (Sales from Vending Machines) Regulations 2010, whose effect is to ban, from 1st October 2011, the sale of tobacco from automatic vending machines. The claimants, Sinclair Collis Limited, a subsidiary of Imperial Tobacco Limited, challenge the relevant provisions of the 2009 Act and the 2010 Regulations contending that they contravene Article 34 of the Treaty on the Functioning of the European Union and Article 1 of Protocol 1 to the European Convention on Human Rights. Mitting J gave the claimants hesitant permission to bring judicial review proceedings against the Secretary of State for Health on these grounds, but refused permission on other grounds.[4]It is obvious that measures aimed at reducing the incidence of smoking tobacco are likely to damage businesses or individuals who make money out of the manufacture or sale of cigarettes. The ban on the use of automatic tobacco vending machines will obviously affect adversely those whose business it is to supply and service these machines.

Automatic Tobacco Vending Machines

[5]There are approximately 50,000 tobacco vending machines in the United Kingdom, and what is referred to as the tobacco vending machine industry employs directly approximately 550 people with several hundred more employed by suppliers. The claimants own about 20,000 of the vending machines and most of the rest are owned by independent operators, most of whom are represented by the Interested Party in these proceedings, the National Association of Cigarette Machine Operators. Estimated turnover of the industry in 2004 was £434m., although the clear evidence is that it has declined significantly since then. NACMO has estimated that the annual gross margin of the industry is approximately £102m.[6]The consensus evidence is that about 1% of tobacco sales are through vending machines. Cigarettes from vending machines cost substantially more than cigarettes sold in shops or supermarkets. A vending machine in a public house can provide the publican with an annual royalty of £300-£700. Pubs generally do not have cigarettes for sale over the bar, although they could do so, subject to the regulations about displays. At present, vending machines provide a secure point of sale in hotels, restaurants, pubs, bars, nightclubs and bingo halls. The evidence is that some 98% of these vending machines are in premises which are obliged to restrict or control entry by children.[7]There is extensive evidence by Kevin Pascall on behalf of the claimants, and by Edward Mair, Rod Bullough, Debbie Corris and Adrian Robinson on behalf of members of NACMO.[8]The claimants employ 171 people. Mr Pascall’s evidence is that tobacco vending by automatic machines represents 97% of their business. They import their tobacco vending machines from manufacturers in Spain and Germany, as do all or most of the other independent suppliers. Various legislation, including the ban on smoking in public places, has reduced sales from vending machines by some 80% and more than 11,000 machines have been removed from the claimants’ sites. The prospect of a ban on cigarette vending machines has significantly reduced the importing of the machines and, if the ban is brought into force, that importing will cease. The existing machines will be redundant and worthless and will have to be disposed of at a cost. Mr Pascall says that the intended ban on selling cigarettes from vending machines will put the claimants out of business, causing mass redundancies. He does not believe that any tobacco vending machine operator will survive the intended ban. The witnesses for NACMO tell the same story.[9]Edward Mair is Chair of NACMO and a partner in Cherwell Tobacco Factors LLP. Rod Bullough is the Northern Chair of NACMO and director of R. Duckworth Limited and R. Duckworth (Blackpool) Limited. Debbie Corris is General Manager of Jim Ingram Vending & Wholesale. Adrian Robinson is Director and Company Secretary of W.H.R. Vending Limited.[10]Cherwell Tobacco Factors’ main business is the supply, maintenance and refilling of tobacco vending machines. They currently supply and service 3,481 sites. They are valuable employers in the small market town of Whitchurch. They have four depots at Worthing, St Albans, Whitchurch and Bathgate in Scotland, and employ more than 120 staff. Their annual turnover is £18.29m., 87% of it from the tobacco vending business. Mr Mair says that the ban on cigarette vending machines would inevitably lead to the closure of the business.[11]The primary business of R. Duckworth (Blackpool) Limited is the supply, maintenance and refilling of tobacco vending machines. R. Duckworth Limited has three divisions, one of which, Cumbria Vending, carries on essentially the same business as the Blackpool company. Of the 34 people employed by the Duckworth companies, 19 are directly employed in the tobacco vending business – 15 in Blackpool and 4 with Cumbria Vending. The companies’ tobacco business has halved since the ban on smoking in public places was introduced on 1st July 2007, and the number of sites where the Duckworth companies have machines has reduced from 1,875 in 2005 to 1,004 in 2010. 98% of their sites are in licensed premises. If the ban is brought into force, the companies would be unable to carry on trading. The Blackpool company has no other business. The divisions of R. Duckworth Limited are largely dependent on the profit generated by Cumbria Vending, and would collapse if Cumbria Vending ceased to be viable.[12]Debbie Corris is General Manager of Jim Ingram Vending & Wholesale, a partnership with two partners aged 75 and 65. It was founded in 1971 as a traditional tobacconist and confectionery shop. Now vending machines are its main business. There were 6 employees. It has 210 sites in and around Kent, far fewer than before the ban on smoking in public places. 201 of these sites are on licensed premises. In the financial year 2010-2011 to August, the business had a gross income of £272,583, of which £165,333 (some 61%) came from vending machines. If the ban comes into effect, it is more than likely that the shop business will have to shut down.[13]Adrian Robinson is one of 2 directors of W. H. R. Vending Limited. Until recently, the company had one other member of staff who had to leave because of decreasing turnover. It is a small business supplying vending machines to local pubs. 97.9% of its sales are of tobacco from vending machines. If the ban comes into operation, W. H. R. will have no sales and no income and will be forced out of business.[14]The businesses which this evidence refers to and in summary describes are, I understand, typical of the 79 members of NACMO who between them account for the very large majority of those, apart from the claimants, who own, supply and service tobacco vending machines. All or most of them obtain their machines by importing them from Spain or Germany or elsewhere in the European Union. Not only have these businesses already suffered a decline from other measures related to smoking and from the prospect of a ban, but the ban would eliminate all turnover derived from cigarette vending machines. Many NACMO members have had understandable difficulties with their banks. Individuals foresee acute difficulties with their personal finances and livelihood. The claimants’ case further is that, if the ban is brought into effect, the machines will be useless and will have to be disposed of at a significant cost, which some of those concerned, whose businesses will collapse, may be unable to bear.[15]Evidence on behalf of the Secretary of State makes some attempt to challenge parts of the claimants’ and NACMO’s predictive evidence about the financial and other consequences of a ban. It is said that businesses can diversify; that the vending machines could be converted to supply other products; or that the machines could be disposed of free of cost by a small newly founded disposal and recycling company in the Midlands. The claimants and NACMO say that diversification is unrealistic for businesses concerned with little else than vending machines; that converting machines designed for small cigarette packets is impractical and uneconomic; and that large scale disposal free of cost is quite unrealistic. I found the Secretary of State’s case and evidence on these matters thin and generally unpersuasive. But it is not, in my view, necessary to consider this part of the evidence in greater detail, because the Final Impact Assessment dated 27th January 2010, which the Minister considered before making the Regulations and which I refer to in greater detail below, has a cost/benefit analysis which takes account of an immediate one off cost of £22m. as “the total value of UK cigarette vending machines (57,934 machines up to £375 each).” It seems to me that, in the main, diversification would be likely to be at best difficult and at worst unrealistic; and that it is highly likely that there would be costs of disposal.

The claimants’ claims

[16]The first limb of the claimants’ case depends on Article 34 TFEU. Tobacco vending machines are imported into the United Kingdom from other Member States of the European Union. Article 34, which has direct effect, prohibits quantitative restrictions on imports between Member States and all measures having equivalent effect. It is now accepted on behalf of the Secretary of State that a ban on tobacco vending machines would constitute a quantitative restriction within the scope of Article 34.[17]Article 36 TFEU provides that Article 34 shall not preclude prohibitions or restrictions on imports justified on grounds (among others) of the protection of health and life of humans. Justification to protect public health under Article 36 is to be treated in the same way as the protection of public health is seen as a “mandatory requirement” – see Cassis de Dijon [1979] ECR 649 at paragraph 8 and paragraph 6.2 of the European Commission’s “Guide to the application of Treaty provisions governing the free movement of goods” (“the Commission Guide”). Reliance on Article 36 must be well founded and proportionate. The claimants say that proportionality requires that the decision-maker must sufficiently establish relevant facts upon relevant evidence, including, where appropriate, scientific evidence; that the measure should have an identified legitimate aim and, if there is a choice of means, be the least restrictive option necessary to achieve the aim; and that the measure must be consistently and systematically applied. The claimants’ case is that, in making the regulations at least, the Minister purported to rely in part on an aim which was not properly to be regarded as an aim of the legislation; that she was misinformed as to material facts relating to the cost/benefit analysis in the Final Impact Assessment; that there was a viable less restrictive alternative means available to achieve the legitimate aim which the Government itself regarded as preferable until Parliament withdrew that option from the legislation; and that the eventually imposed ban was not proportionate and could not be justified under Article 36. The Secretary of State says that the claimants’ analysis does not correctly characterise the proper approach in law to the issue of proportionate justification; and that, properly considered, the legislation and the ban are justified in Article 36 terms.[18]There is an alternative parallel claim under Article 1 of Protocol 1 of the European Convention on Human Rights, which raises much the same, although not perhaps identical issues. Article 1 of Protocol 1 provides that every natural or 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. This does not impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest. There is a well known contrast here between deprivation of possessions and control of the use of property.[19]It is uncontroversial that the tobacco vending machines and the goodwill of a business (but not its future income) may be possessions for this purpose and that the claimants’ business and goodwill, to the extent that they have a monetary value, are protected by Article 1 of Protocol 1 – see Capital Bank AD v Bulgaria (2007) 44 EHRR 48 at paragraph 130, and R. (Countryside Alliance) v Attorney General [2008] 1 AC 719 at paragraph 47. Lord Bingham of Cornhill there said that it is, in the first instance, for Parliament to decide what laws are necessary in accordance with what it judges to be the general interest, and that respect should be given to the (in that case) recent and closely considered judgment of a democratic assembly; but that Parliament’s judgment is not immune from challenge. The inquiry therefore is directed to whether the ban on tobacco vending machines is properly capable of being regarded as necessary in accordance with the general interest. This is a question of the State showing that it made a proportionate balance between its legitimate aim and the means to achieve it – see e.g. James v United Kingdom (1986) 8 EHRR 123 at paragraph 37; R. (Laporte)v Chief Constable of Gloucestershire [2007] 2 WLR 46 at paragraphs 38, 106.[20]The claimants say that the ban is incompatible with Article 1 of Protocol 1. The Secretary of State says that the legislation is not “manifestly without reasonable foundation”, which he says is the test to be applied. The Secretary of State also says that this is not a case where the State should pay compensation, since the measure controls the use of tobacco vending machines. It does not expropriate either them or the claimants’ business.

The Legislative history

[21]On 31st May 2008, the then Secretary of State published a consultation paper entitled “Consultation on the Future of Tobacco Control”. After the consultation period had closed, there was prepared and, on 11th December 2008, the responsible Minister signed as fair and reasonable an Impact Assessment. This considered mandatory age restriction technology or prohibition for tobacco vending machines. Age restriction technology would intend ideally to prevent, or in practice severely to curtail children from buying cigarettes from automatic vending machines. There were three possible types of age restriction mechanisms considered: a) electronic ID card age verification, similar to that used in Germany and the Netherlands and soon to be introduced in Japan; b) ID coin mechanisms, by which the purchaser would have to obtain an ID coin or token from a member of staff who would be required to verify the purchaser’s age; and c) remote radio control by which a member of staff would open the vending machine by remote control having verified the purchaser’s age. The principle of each of these is that the machine is not openly available for use to anyone whose age has not been verified. The concept is in principle similar to that required for the sale of cigarettes over a counter in shops or supermarkets, where the salesperson has to verify the purchaser’s age. Each of these systems is obviously open to a degree of error, non-observance, circumvention or deceit, but those who permit children to buy cigarettes are or would be open to criminal sanction.[22]The December 2008 Impact Assessment stated that those under 18 were uniquely vulnerable to the risks of tobacco and that government intervention was necessary to prevent them buying tobacco products. A voluntary code of practice about the siting of tobacco vending machines did not sufficiently prevent young people’s access to tobacco from this source. The policy was to reduce smoking by those under 18. It was said (inaccurately) that 17% of regular smokers aged 11 to 15 report that cigarette vending machines are their usual source of tobacco, so that restricting access to the machines would contribute to achieving this policy. Three options were considered:(1) retaining the status quo,(2) introducing age restriction mechanisms onto all tobacco vending machines, or(3) prohibiting the sale of tobacco from vending machines. The preferred option was to introduce age restriction mechanisms. If, after this had been implemented for two years, clear and strong evidence showed that children were still buying cigarettes from vending machines, then there might be a prohibition. There followed a detailed cost/benefit analysis for each of the second and third options. For the second option (age restriction mechanisms) the net benefit over 10 years was calculated to have a range between £150m. and £810m. with a best estimate of net benefit as £265m. For the third option, the net benefit range was estimated to be between £-515m. and £565m. with a best estimate of £-245m. It is scarcely surprising that the calculations for the third option produce a less favourable cost/benefit result, since, with the third option, businesses such as the claimants’ would be incurring losses and costs which they would not incur with the second option. For the second option, they would incur comparatively modest costs of adding age restriction mechanisms to existing machines.[23]The huge range of the product of these calculations is notable, and, once you look at the detail, hardly surprising. I do not for a moment question the expertise or experience of the expert economists who produce these and other analyses. But it is apparent to me (and I would have thought to anyone who is not completely mesmerised by the detail and the figures) that significant parts of these analyses are based upon assumptions and estimates about future conduct and likelihood which cumulatively give the resulting figures a degree of apparently accurate assurance which the nature of the subject matter will scarcely bear; and that ascribing a money value to some of the benefits at least is a difficult concept. For example, the key benefit for the main affected group calculates life years gained by an annual cohort of under-age smokers from smoking on average 0.45 fewer cigarettes per day. Put in simplified terms (the detail of which I may not have completely understood), a calculation is made which includes (paragraph 35) that smoking one fewer cigarette per day from a young age results on average in the young people in question living about 40 days longer (“0.11 life years gained”). This is given a money value of £5,500 applying a standard value per life year of £50,000.[24]The calculation of this benefit for policy option 2 is in outline as follows: (paragraph 45ff): a) 17% of regular smokers aged 11 to 15 state that a vending machine is a usual source for them of tobacco products. (This is an accurate abstract from a survey, in contrast with my earlier reference to the 17%). b) 17% is reduced to 7.5%, because the respondents to the survey were able to give more than one usual source and the resulting percentages added up to 227%. c) a publication in 2006 found that 11-15 year olds smoke on average 6 cigarettes per day. d) if sales to those under age from vending machines are stopped, child smokers will on average smoke 0.45 fewer cigarettes per day (7.5% of 6 = 0.45.) e) the children will therefore on average live about 18 days longer (0.11 life years gained multiplied by 0.45 = 0.05 life years saved per person), to which is ascribed a money value of £2,500 (£50,000 multiplied by 0.05). f) a 2006 survey shows that 20% of 16-19 year olds smoke. g) 650,000 children (? who reach the age of 16-19 years) are born each year, so 130,000 of them (20% of 650,000) are candidates for smoking on average 0.45 fewer cigarettes per day. These will on average each live 18 days longer = 6,500 life years (130,000 multiplied by 0.05 = 6,500). h) the money value of 130,000 18 days is £324m. (£2,500 multiplied by 6,500 = £324m.). i) but there are uncertainties in this, including the possibility (? probability) that some of the young people will obtain their cigarettes from elsewhere. So reduce £324m. to a range of 10% - 50% = £32.4m. to £162m. j) but enforcement is unlikely to be 100% effective. So reduce the amounts by another 10%, so that the range is now £29.2m. to £146m. k) the value of these amounts discounted over 10 years is a range of £215m. to £1.07bn.[25]I have no difficulty with a thoughtful judgment which concludes that, if children are prevented from using tobacco vending machines, some under-age smokers will smoke fewer cigarettes to the general benefit of their health. Nor do I have difficulty with a number of the general assumptions which find their way into this calculation: for example, that some under-age smokers who are prevented from obtaining their cigarettes from vending machines will probably obtain them from elsewhere. But, avowedly not being an economist, I find this calculation which produces a mathematically correctly calculated result of a range of £215m. to £1.07bn. very difficult. The nature of the subject matter requires the use of assumption upon assumption – in some instances, guesses. Some of the numbers used are more secure than others. Some are distinctly questionable. For instance, I find very difficult the concept of ascribing to an extra year of life a value of £50,000. Counsel were unable to explain this to me beyond saying that it is a standard economist’s figure. I find even more difficult the concept of ascribing by derivation a value of £2,500 to an extra 18 days of life. It is right to say that there are other estimates and calculations in this Impact Assessment which I have not looked at in detail and to which my attention was not drawn.[26]This discussion may appear to some to be inappropriately destructive. It was a subject raised during the hearing by me, not being raised contentiously by the parties. It serves as an introduction to some of the criticisms made on behalf of the claimants of one of the later Impact Assessments, which I consider later in this judgment. It also serves to support the probability that the Parliamentary decision to ban vending machines is unlikely to have been unduly influenced by the apparent precision of money calculations of this kind.[27]For option 3, the full ban on the use of tobacco vending machines, the December 2008 Impact Assessment notes (paragraph 53) that a ban might also reduce adult cigarette consumption because it would make cigarettes slightly more difficult to acquire. For option 2 (age restriction technology), adults would not be prevented from obtaining cigarettes from vending machines.[28]The claimants and the members of NACMO had supported the Secretary of State’s aim of reducing under-age smoking and were in favour of the introduction of age restriction mechanisms. No doubt they saw this as commercially preferable to a complete ban. The claimants developed radio frequency control mechanisms and incurred significant cost in doing so. The mechanisms have been successfully tested and are in use at over 600 sites in the United Kingdom. They are believed to be satisfactory and practical to use, although there has not yet been time to assess them fully.[29]Clause 20 of the Health Bill 2009 was introduced in the House of Lords on 16th January 2009. It proposed to amend the Children and Young Persons (Protection from Tobacco) Act 1991 by inserting a new section 3A, under which the appropriate national authority (for England and Wales the Secretary of State) might make regulations “prohibiting or imposing requirements in relation to the sale of tobacco from automatic machines in England and Wales”. Clause 21 had an equivalent provision for Northern Ireland.[30]In October 2009, the Secretary of State issued a Consultation Paper on the proposed tobacco control regulations for England under the Health Bill, together with draft regulations which would have imposed restrictions on tobacco vending machines. Responses were invited by 4th January 2010. The Secretary of State also published an Impact Assessment supporting the Minister’s view that, for at least an initial two year period, the imposition of restrictions, rather than a full ban on tobacco vending machines, was the appropriate means of achieving the health aim of reducing under-age smoking. The text of the consultation paper noted that in 2008 vending machines were a usual source of tobacco for 10% of children aged 11-15. It will be recalled that the December 2008 Impact Assessment had this as 17% derived from an earlier survey. The paper states that the policy aim of the draft regulations is to prevent young people under the age of 18 from using tobacco vending machines, while still allowing adults to buy from them. The key element of the proposed regulations was that there had to be contact between the customer and a member of staff which would, in effect, ban self-service. This would deter some under-age purchasers, but, more importantly, the mandatory contact would help to ensure that staff carry out an age check where this is appropriate. The regulations proposed that any tobacco vending machine located in premises open to the public must be designed so that it is activated by remote control. The Impact Assessment was in similar form and content as that for option 2 in the December 2008 Impact Assessment, but some of the cost benefit calculations are different in detail. The net benefit range over 10 years is given as £24m. to £228m., with a best estimate of net benefit of £126m. The calculations which achieve this result (paragraphs 49-60) are in essentially the same form as those in the December 2008 Impact Assessment which I have described. The starting point derives from a 2008 survey that, for 12% of 11-15 year olds who smoke regularly, a vending machine is a usual source of tobacco. The December 2008 figure was, it will be recalled, 17%. The 2008 survey has 11-15 year old regular smokers smoking on average 5.6 cigarettes per day, and it is calculated that, if they are prevented from obtaining cigarettes from vending machines, they will on average smoke 0.31 fewer cigarettes per day each. The December 2008 figure was 0.45. Paragraph 46 has 0.12 life years gained by young people smoking one cigarette fewer per day. There are other changes of detail.[31]On 12th October 2009, Ian McCartney MP moved an amendment to the Health Bill in the House of Commons to remove the power to make regulations imposing requirements in relation to the sale of tobacco from automatic vending machines, leaving only the power to make regulations prohibiting it. The amendment was adopted in the House of Commons and approved by the House of Lords on 9th November 2009. The Act received the Royal Assent on 12th November 2009. Thus the Parliamentary decision disabled the Secretary of State from making regulations to implement the option which the preceding consultations and Impact Assessments preferred. The apparent Parliamentary choice was between doing nothing or imposing a ban.[32]I say “apparent Parliamentary choice” because that is, in my view, the clear sense of the way in which the Bill passed through Parliament and the resulting removal by amendment of the power to impose restrictions. Mr de la Mare, for NACMO, has a submission that the amended section 3A(6) of the 1991 Act as amended by the Health Act 2009 retains a power to make regulations which do not impose an outright ban. Section 3A(6) provides that the power to make regulations under the section “may be exercised to make different provision for different cases or circumstances”, and “includes a power to make supplementary, incidental, consequential or transitional provision”. It does not seem to me to be possible to construe this subsection in the way Mr de la Mare suggests. The power to make regulations in section 3A(1) is to make provisions prohibiting the sale of tobacco from an automatic machine, and I do not read section 3A(6) as extending to a power to make provisions which do not prohibit such sale. It looks as if section 3A(6) was a subsection in the unamended Bill, which the amendment did not remove or modify. However that may be, the passage of the Bill through Parliament and its amendment did not leave the Secretary of State with the practical political option of making regulations to provide for precisely that which Parliament had removed from the Bill.[33]In November 2009, following the amendment to the Bill, the Secretary of State issued a revised consultation which included, not for the first time, proposed regulations about displays and prices of tobacco products and specialists tobacconists, but also contained by amendment a new Vending Machine Supplement. The consultation paper explained that there was no longer power to impose requirements on how tobacco products are sold from vending machines. It stated that the role of tobacco control policies under the Health Bill 2009 was to do everything possible “to enable young people to remain smoke-free and to support those people who want to give up smoking”. The stated “Policy aim” was to prohibit sales of tobacco from vending machines in England and the following text concentrates on protecting children. The 2008 figure for children aged 11-15 for whom vending machines were a usual source of tobacco is given as 10%. Draft regulations under a heading “Children and Young Persons England” were attached which would prohibit the sale of tobacco from an automatic machine. The attached Impact Assessment has as the stated policy objective “to reduce smoking take up, prevalence and/or the number of cigarettes smoked by under-18s, thus creating a future beneficial effect on public health. Because 10% of regular smokers aged 11-15 report that cigarette vending machines are a usual source of tobacco, further restricting access to these machines will contribute to the above objective.” A cost/benefit analysis in now familiar form calculates a net benefit range of £-553m. to £74m. with a best estimate of net benefit of £-398m. The text explains (paragraph 36) that, because the policy option involves a full prohibition of tobacco sales from vending machines, it may also reduce adult cigarette consumption, in that it would make cigarettes slightly more difficult for adults to acquire. It might be argued that any life years saved here were not a legitimate benefit, as adults are entitled to smoke if they wish. The possibility of reducing adult cigarette consumption was not included in the money calculation.[34]After the revised consultation period, on 29th January 2010, the regulations banning tobacco sales from vending machines were issued with an analysis of responses to the consultation and a Final Impact Assessment dated 27th January 2010. This was signed by the responsible Minister, Gillian Merron MP, as representing a fair and reasonable view of the expected costs, benefits and impact. Government intervention was said to be justified to prevent young people from accessing tobacco. The primary policy objective is to reduce smoking by those under 18. 12% of regular smokers aged 11-15 are now said to report that cigarette vending machines are a usual source of their tobacco. It is said that a consequential benefit of the policy will be to create a more supportive environment for adults who are trying to quit smoking. The now familiar cost benefit calculation produced a net benefit range over 10 years of £-145m. to £378m., with a best estimate of £116m.[35]The text of the Final Impact Assessment includes that a 2008-9 survey by Local Authorities Coordination of Regulatory Services (LACORS) showed that illegal sales to under 18 year olds were made at 58% of vending machines tested across England. Total costs are calculated to include a one-off cost of £22m. plus annual costs of £64m. to £141m., giving total cost ranges discounted over 10 years of £542m to £1.2bn. [It is conceded that these figures are by miscalculation £43m. too low.] The quantification of benefits is in essentially the same form as before. It reduces 12% of smokers aged 11-15 who report vending machines as a usual source of their tobacco to 4.5%, this resulting from a proportionate reduction of 12% because the total “usual source” percentages added up to 237% - [my calculator suggests that this proportionate reduction should produce 5%.] 11 to 15 year olds who are regular smokers are now said to smoke 6 cigarettes per day, so that a 4.5% reduction would result on average in them smoking 0.27 fewer cigarettes per day. The calculation now has 0.03 life years saved per person, which calculates at about 11 days each on average. A calculation similar to the earlier ones quantifies the money benefit of this when discounted over 10 years as £183m. to £918m. The analysis then says (paragraph 44) that the ban on cigarette sales from vending machines is likely to have a positive health impact on adults. The number of cigarettes smoked by adults may fall with an associated health gain. A calculation supposes an average reduction equivalent to between 0.03 and 0.08 cigarettes per adult smoker per day, resulting in adult smokers living on average 33 days longer. The calculation then proceeds to produce a discounted net present value of health benefits to adults over 10 years of between £213m. and £640m. The total benefit for adults and children together is then £396m. to £1.6bn.[36]The details of all this are perhaps less important than the fact that a benefit for adult smokers is included and quantified for the first time; and that, without this, the net range of cost/benefit would have been quite heavily negative. Including adults for the first time may, however, have a measure of justification because, so long as the preferred option was to require electronic mechanisms intended to prevent those under 18 from buying cigarettes from vending machines, adults would remain able to use them.[37]The Regulations were laid before Parliament on 27th January 2010 and assented to by Parliament under the affirmative resolution procedure.[38]On 1st February 2010, the solicitors acting for the claimants wrote to the Secretary of State asking for details of the information and evidence which were taken into account in deciding to promote and make the regulations. The request was answered on behalf of the solicitor to the Department of Health on 4th February 2010. This letter stated (paragraph 29) that reducing access to cigarettes by children, young persons and adults is a legitimate aim, and that there was sufficient evidence set out in the letter that a prohibition on the sale of tobacco from vending machines would help to achieve it. The matters to which the Minister had regard were given under the headings: the public health benefit of a prohibition (in relation to both young people and adults); the impact on the tobacco vending machine industry; and the international position. The letter enclosed the analysis of the responses to the November 2009 consultation and the Final Impact Assessment which was attached to the explanatory memorandum laid with the draft regulations on 27th January 2010.[39]As to the public health benefits, the Minister considered that there were strong arguments in favour of a ban. Prohibition would be easy to operate and enforce and would be likely to achieve the policy aim of preventing young people’s access to cigarettes through vending machines. The letter gave some details of evidence of access to tobacco from vending machines by both children and adults, and noted responses to the consultation to the effect that anything less than total prohibition would be difficult and expensive to enforce.[40]As to the impact on the vending machine industry, the Minister appreciated that a prohibition would have a significant effect. She noted the view that the industry would be totally destroyed, but also noted possible reasons why it might not. She had considered, for example, diversification and the possibility of adapting the machines for other uses. She noted the view that it was disproportionate to ban vending machines when young people might obtain cigarettes from other sources. She noted clear evidence that selling tobacco from vending machines was a declining industry. She recognised the financial implications for those involved in the tobacco vending industry, but did not consider that those implications outweighed the clear public health benefit of proceeding with the regulations. She had considered compensation, but decided that it was not appropriate. She considered that pubs might sell tobacco products over the counter so long as they complied with existing sales legislation, and that removing easily accessible sources of tobacco would support adults who were trying to quit smoking. As to the international position, the Minister noted that the United Kingdom had treaty obligations under the Framework Convention for Tobacco Control. She noted other international measures.[41]The Explanatory Memorandum to the Regulations stated, under the heading “Purpose of the Instrument” that the Regulations were “part of ongoing work to reduce children and young people’s access to tobacco”. Paragraph 7.3 stated that the Regulations were designed to prevent access to tobacco products by children. “Adults will be able to buy tobacco from other sources”. The claimants say that this statement is inconsistent with the Final Impact Assessment calculating, and other statements stressing, the value of a benefit to adults. There is some force in this, although perhaps strictly the proposition that adults will be able to buy tobacco from other sources is not inconsistent with the proposition that banning vending machines may help some adults not to do so.

Article 36 Justification and Proportionality – the claimants’ case

[42]As I have indicated, the claimants submit that any justification under Article 34 TFEU requires a proportionality judgment. This itself requires that the decision-maker must establish the relevant facts to ensure that the measure is well founded on relevant evidence; and a determination that the measure is the least restrictive option available to secure its legitimate objective. This necessarily means identifying the legitimate objective. As to identifying sufficient facts going to the benefits and detriments thoroughly and in a balanced way, and the need to weigh one against the others, Ms Rose QC refers, among other cases to Huang v Home Secretary [2007] 2 AC 167 at paragraph 15; R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213 at paragraph 151; Allonby v Accrington and Rossendale College [2001] ICR 1189 at paragraph 29; R (Lunt) v Liverpool City Council [2009] EWHC 2365 (Admin); and R v Secretary of State for Home Department, ex parte Iyadurai [1998] Imm AR 470. In the last of these, an asylum case, Lord Woolf MR said at page 475 that if the Secretary of State had formed the opinion required by the legislation, the court’s role is limited to one of supervision. He continued:
“The court can do no more than inquire whether the Secretary of State has (i) taken adequate steps to inform himself of the position in the third country (ii) properly considered the information which is available to him and (iii) come to an opinion which is consistent with that information, recognising that it is his responsibility to evaluate the material which is available to him.”
[43]As to the requirement for the measure to be the least restrictive option, Ms Rose points to the CJEU Case 261/81 Rau [1982] ECR 3961 at paragraph 12, to the effect that, if a Member State has a choice between various measures to attain the same objective it should choose the means which least restricts the free movement of goods. She further submits that national legislation is only appropriate to attain its objective if it does so in a consistent and systematic manner. She directs attention to Case C-169/07 Hartlauer v Wiener [2009] ECR I 1721 at paragraph 55 where the inconsistent treatment of comparable dental practices was held to be unjustified. See also Corporacion Dermoestetica [2008] ECR I 5785 at paragraphs 39 and 40.[44]The European Commission’s Guide observes in paragraph 6.1 that the burden of proof in justifying the measures adopted according to Article 36 TFEU lies with the Member State. At paragraph 6.1.2, the Guide states:
“The Court of Justice has ruled that “the health and life of humans rank first among the property and interests protected by Article 36 and it is for Member States, within the limits imposed by the Treaty, to decide what degree of protection they intend to assure, and in particular how strict the checks to be carried out are to be”
. In the same ruling the Court stated that national rules or practices do not fall within the exception specified in Article 36 TFEU if the health and life of humans can be as effectively protected by measures which do not restrict intra-EU trade so much. Protection of health and life of humans, animals and plants is the most popular justification under which Member States usually try to justify obstacles to the free movement of goods. While the Court’s case-law is very extensive in this area, there are some principal rules that have to be observed: … the measures adopted have to be proportionate, i.e. restricted to what is necessary to attain the legitimate aim of protecting public health. Furthermore, measures at issue have to be well founded – providing relevant evidence, data (technical, scientific, statistical, nutritional) and all other relevant information.” Paragraph 6.3 restates the proportionality test in similar terms, indicating that the court has allowed Member States a certain “margin of discretion” regarding the measures adopted and the level of protection pursued. Paragraph 6.4 restates the burden of proof and the fact that justification must be accompanied by appropriate and precise evidence.[45]The claimants’ case with reference to Article 36 is in summary that the ban on the sale of tobacco products from automatic vending machines is unjustified and disproportionate because: a) The only sustainable legitimate aim of the legislation banning the sale of tobacco from automatic vending machines was to reduce the incidence of tobacco smoking by young people under 18; but the Secretary of State at the last moment and wrongly introduced a second aim of encouraging adult smokers to quit smoking. This made the Final Impact Assessment, on the basis of which the Ministerial decision was made, wrong and misleading. b) The Secretary of State made significant (and the claimants would say fundamental) errors in identifying and assessing relevant facts. There were, it is said, errors in the assessments of the benefits resulting from the ban, and the assessment of detriment was superficial and unsupported by the facts. c) The ban was not the least restrictive option. The originally favoured option of restricting under-age purchases from vending machines by electronic means would have been less restrictive and no less effective. d) The ban does not seek to protect public health in a consistent and systematic manner, since not providing for age-restricted access to tobacco vending machines is inconsistent with permitting it for tobacco sales in shops.

Legitimate aim – claimants’ case

[46]The claimants accept that the stated Ministerial policy objective to reduce the number of those under 18 who take up smoking, the prevalence of under-age smoking and the number of cigarettes smoked by those under 18 to the future benefit of public health is a legitimate aim. They say that this, and only this, was the often stated policy objective of the Ministerial promotion of clauses 22 and 23 of the Health Bill 2009 and of the consultations and Impact Assessments associated with it. They say that this policy objective was proclaimed in the clearest terms up to and in large measure beyond, the amendment to the Bill in Parliament in November 2009 which resulted in the legislation enabling the ban and the regulations which introduced the ban. Reducing adult smoking crept into the Impact Assessment accompanying the revised November 2009 consultation paper, but its effect was not quantified. It was really only in the Final Impact Assessment that helping adult smokers to quit features as a consequential benefit; and only then that it first featured in the money calculations. The claimants say that helping adult smokers to quit should not be seen as a legitimate aim because(a) the Bill was not presented to Parliament on that basis;(b) the regulations were explained to Parliament as designed to help prevent access to tobacco products by children, but adults would be able to buy tobacco from other sources; and(c) there was no or no significant evidence to support a proposition that banning the sale of tobacco from vending machines would help adult smokers to quit.[47]The claimants are correct that Clauses 20 and 21 of the Health Bill 2009 as originally drafted were promoted at Ministerial level with the aim of reducing under-age smoking, and that this remained so until the clauses were amended in Parliament. The clauses understandably proposed amendments to the Children and Young Persons (Protection from Tobacco) Act 1991, whose very title characterises the primary policy aim which the Minister promoted. The measure enabling the banning of the sale of tobacco from vending machines now resides in that Act with that name in consequence no doubt of the manner in which it was promoted.[48]The claimants and NACMO are also, in my view, correct that helping adult smokers to quit was introduced as a supporting benefit at a late stage after the Bill had been amended in Parliament, and when the Minister was faced with the practical need to make regulations banning sales from automatic vending machines, which was not the measure which her own proposal had promoted in the original Bill. Mr de la Mare suggests that “this supposed new head of justification should be seen for what it is: a transparent attempt, after the event of the ban by Parliamentary amendment, to supplement a weak case by reference to an undercooked and unsubstantiated argument, that formed no part of the defendants’ original regulatory impact assessment, the detailed proportionality analysis that that contained and thus the contemporaneous justification for the measure. It should be discounted by the court.” There is some general force in this hyperbole, but I think that it significantly overstates the case. First, it would not have been appropriate to have included helping adults to quit smoking as a policy objective of the restricted access proposal in the original Bill, since that was not intended to stop, and would not have stopped, adults from buying tobacco from vending machines. A complete ban would stop them buying from that source, so that the effect of doing so became at least a potentially relevant consideration. The question would then be whether there was a sufficiently supported and sustainable view that banning vending machines would help adult smokers to quit. The Minister’s explanatory memorandum made it clear that the regulations were designed to help prevent access to tobacco products by children, and that adults would be able to buy tobacco from other sources. As I have said, this is not in terms inconsistent with a consequential aim of helping adult smokers to quit, but certainly that was not a prominently promoted Ministerial objective. It was capable of being a consequential benefit, which is how it features in the introduction to the Final Impact Assessment.[49]Second, as the Explanatory Memorandum states, the ban on sales of tobacco from vending machines was not the only restraint on smoking tobacco which the Health Act 2009 imposed. There was also prohibition on tobacco displays, provision for restricting the display of tobacco product price lists and special provisions for specialist tobacconists, this in the wake of the 2007 ban on smoking in public places. Thus the wider legislative aim may be seen as part of a group of legislative measures designed to continue a process of reducing the incidence of tobacco smoking to the benefit of the nation’s health.[50]The Final Impact Assessment was attached to the Minister’s Explanatory Memorandum (see paragraph 10.3). Notwithstanding the terms of the Explanatory Memorandum itself, the Impact Assessment calculates in the way that I have described the estimated money benefit derived from the supposition that “the number of cigarettes smoked by adults may fall” with an associated health gain (paragraph 45). It is then estimated that there might be a 0.25% to 0.75% reduction in cigarette smoking by reason of the ban, it being supposed that between 25% and 75% of the 1% of cigarettes purchased from vending machines would not be purchased elsewhere. The claimants and Mr de la Mare say that this is no better than unsupported speculation, and so, I think, in large measure it is. Yet the very nature of the subject matter scarcely admits of anything much better. I note that, without the contribution from the benefit calculation for adults, the best estimate net benefit in this Final Impact Assessment would have been significantly negative, instead of the £116m. which the Minister included in her Explanatory Memorandum.

Final Impact Assessment

[51]The claimants criticise details of the cost/benefit analysis in the Final Impact Assessment, saying that errors contribute to an assessment which was flawed. The decision to implement the ban was, they say, therefore taken upon inaccurate information so that the decision cannot properly be regarded as justified. They say generally that the successive cost/benefit analyses varied considerably over short periods of time. So far as it goes, this appears from the differing ranges and best estimates to which I have referred. I have already noted, and the claimants emphasise, that the money results of the analysis in the Final Impact Assessment take account for the first time of money calculations of the benefit of helping adult smokers to quit smoking. But there is a further different money result in the Secretary of State’s evidence in these proceedings, where Donald Franklin now suggests that the net benefit of the ban should have been regarded as £73m. The claimants say that the calculated net benefit seems to change every time it is reconsidered.[52]Particular points which the claimants make are that: a) The figure of 20% for the smoking prevalence of 16–19 year olds is not appropriate because it derives from a 2006 survey at a time when it was lawful for 17 year olds to buy cigarettes. The minimum age has since been raised. This is also inconsistent with another part of the calculation where the new minimum age is taken into account. A suggestion in correspondence that raising the minimum age may have increased the proportion of cigarettes bought from vending machines by those under 18 overlooks the fact that figures from 2008 are already used in another part of the calculation. The Secretary of State acknowledged in September 2010 that a recently published academic paper showed a reduction of the prevalence to 17%. This, say the claimants, should reduce to 16% if hand rolled cigarettes, not available from vending machines, are taken out of the calculation. b) Evidence suggests that the proportion of cigarettes obtained from vending machines by those under 18 fell between 2006 and 2008. It fell from 14% to 10% for 11–15 year olds, and it may be inferred that the trend for 16 and 17 year olds was similar. At most, the ban would address a declining problem. c) If these matters (characterised by the claimants as errors) are taken into account, the best estimate net money benefit would have been negative, thereby falsifying the proportionality judgment. The net benefit would reduce further, if, as one report suggests, the range of net benefit should be reduced from 10 to 50% to 10 to 40%.[53]The claimants further say that there is no credible statistical evidence that a ban on automatic tobacco vending machines would reduce smoking by those under 18. They point out that less than 1% of the United Kingdom’s cigarette sales are estimated to come from automatic vending machines; that 98% of vending machines are in supervised licensed premises where the proprietors risk losing their licence if they do not stop those under 18 buying cigarettes; and that on the Secretary of State’s own figures the proportion of cigarettes obtained by 11–15 year olds who are regular smokers is only 4.5%. On this figure, 95.5% (obviously) obtain their cigarettes from elsewhere.[54]Further, children and young people are not likely to buy cigarettes from vending machines, because the cigarettes sold from them are significantly more expensive than those available from any other source, including those sold illicitly.[55]The claimants say that the Secretary of State has provided no credible statistical evidence from jurisdictions where a ban has been introduced that a ban would reduce smoking. They also point to a report of the Regulatory Policy Committee, which suggests that evidence in the Final Impact Assessment does not provide any specific link between the proposed measure and a reduction in smoking by under 18 year olds, who may obtain cigarettes from elsewhere. In summary, sufficient evidence necessary to justify a departure from Article 34 TFEU has not been produced.[56]The claimants say that the Secretary of State’s assessment of the detriment which would be caused by the ban – that is the other part of the cost/benefit analysis – is superficial and unsupported. There was an admitted under-estimate of £43m. in the calculation of lost cigarette duty. The calculation failed to attribute any money amount to the continuing costs of advice, support and enforcement. The ban would put the claimants and the relevant members of NACMO out of business. The Secretary of State does not accept this and has not evaluated the consequent cost. There will be large costs, estimated for the claimants of £1.06m., of disposing of useless vending machines (which will be worthless) and employment costs, for example redundancy payments which the destroyed businesses may not be able to pay. Employees may well not be able to find alternative employment. A loss of business has already occurred in anticipation of the ban. Diversification is not realistic. There will be reductions in business for those with whom the claimants and the relevant members of NACMO themselves do business. These matters have been underestimated or not taken into account. It is wrong for Donald Franklin to suggest that those involved in selling cigarettes have done so at their own risk in the knowledge that government policy is to reduce smoking.[57]It is submitted on behalf of the Secretary of State, on the basis of authorities to which I shall refer, that what matters for Article 36 (and also under the Human Rights Act 1998) is whether objectively the legislation is proportionate; and that the proportionality of health measures is not determined by balancing a money calculation of benefit and detriment. Parliament does not have to undertake a cost/benefit analysis, without which legislation cannot be justified under Article 36. Alleged errors in the department’s Impact Assessments cannot be relevant to the Parliamentary decision to enact the Bill as amended, certainly when what Parliament enacted was not that which the department was promoting. In this instance, the ministerial decision to promote the regulations was plainly a response to the Parliamentary decision to enact the Amended Bill; and, although Ministers making secondary legislation generally do undertake cost/benefit analyses and this was done for these regulations, neither a failure to do so, nor alleged errors in the analysis can make disproportionate legislation which is otherwise proportionate. 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? On the other hand, I do understand an argument that a decision to legislate may be proportionate even though a cost/benefit analysis produces a negative money balance; or a variant of that, that a decision to legislate may be proportionate provided that the legislator identifies and takes account of the important detriments and their broad measure. This would be so perhaps where any money calculation is necessarily imprecise.[58]Evidence on behalf of the Secretary of State is that Impact Assessments provide important evidence which Ministers need to take into account when deciding whether to make regulations, but that cost/benefit analyses do not dictate the policy decision when other considerations can properly play a part. As to the cost/benefit analysis in the Final Impact Assessment, it is submitted that the claimants’ assertion that the prohibition of tobacco sales from vending machines will not reduce the incidence of smoking by those under 18 can only be right if either those under 18 do not obtain cigarettes from vending machines at all, or if, following a prohibition, they would all obtain the same number of cigarettes from elsewhere. Although different sources may have varying percentages for those 11–15 year olds for whom vending machines are a usual source of cigarettes, the evidence is that some 11–15 year olds do obtain cigarettes from vending machines, and the estimate of 4.5% used in the calculations – admittedly an estimate – is not open to criticism. There is also evidence from a LACORS report that test purchases showed that those responsible for vending machines failed to prevent a high percentage of under-age purchases from vending machines, a proportion of which are in premises from which children are not typically excluded. A survey from the South West of England found that 26.5% of cigarette vending machines are not placed in areas which are monitored and supervised. The fact that cigarettes from vending machines are expensive does not mean that some young people do not obtain cigarettes from them. If, as is uncontroversial, 1% of all cigarette sales is from vending machines, 395m. cigarettes are sold each year from vending machines. I note that Mr de la Mare challenges the persuasiveness of test purchase evidence relied on by the Secretary of State, pointing to other survey results obtained by Mr Bullough of NACMO to the effect that there was an 80% compliance in asking for identification for vending machines compared with a current level of 59% to 63% for over the counter cigarette sales.[59]The Secretary of State disagrees with the Regulatory Policy Committee’s unsupported assumption that, if there is a ban, all vending machine purchases will be replaced from other sources. The Final Impact Assessment assumed that 50 to 90% of these purchases would be obtained from elsewhere. But the Secretary of State maintains the position that it is self-evident that, when the sale of tobacco to persons under 18 is illegal, closing off an existing source of cigarettes from children will reduce smoking by those under 18. This is especially so, since, illicit purchases apart, buying from other sources involves face to face contact with a retailer who will commit a criminal offence if there is a sale to a person under 18.[60]As to the assessment of the costs that would result from a ban, it is submitted that the claimants are wrong to say that the Secretary of State has chosen not to evaluate the detriment to the businesses and refuses to accept that the ban would lead to a destruction of those businesses. The calculations assume that cigarette vending machines would become worthless and need to be disposed of, and that those employed in cigarette vending would become redundant. The Impact Assessment estimates the financial effects of the ban on the economy as a whole, rather than on particular businesses. The approach taken for machines and redundancies shows that the assumption was that the businesses would close. Diversification was regarded as a possibility and was being actively considered, as the claimants’ and NACMO’s evidence confirms. Parliament and the Secretary of State accepted that there was likely to be harm to those working in the tobacco vending industry, but considered it justified by the legitimate aims of the tobacco policy.[61]The Secretary of State notes that the claimants quarrel with the value of £375 per machine taken in the Final Impact Assessment, but that they did not do so during the consultation. It is suggested that the claimants’ and NACMO’s evidence on these and other costs is inconsistent.

Least restrictive option

[62]The claimants’ case here is straightforward and, so far as it goes, persuasive. The original ministerial preference was for restrictions requiring automatic vending machines to be activated by remote control for a trial period of 2 years. The original October 2009 consultation promoted this as capable of securing the public health aim. It showed that this measure would have significantly higher net benefits than a ban. This changed abruptly after the amendment to the Health Bill in Parliament, but the Secretary of State has produced no proper or precise evidence enabling the arguments now advanced in favour of the ban to be substantiated. The claimants would no doubt say that the final Impact Assessment was cobbled together at short notice in an attempt to justify the ban which Parliament had decided to impose, when the Secretary of State herself had shown that a less restrictive option was available. The ban is not, it is said, justified merely because it is simple. The Final Impact Assessment did not compare the assessed costs and benefits of a ban with those of imposing restrictions on the use of vending machines. The Secretary of State may not have had the practical option of imposing restrictions under the legislation as enacted, but there was the option of leaving things as they are and seeking to agree a voluntary code of conduct. This possibility was not considered.[63]The claimants say that remote access controlled mechanisms operate effectively. They would be controlled by staff who are experienced in ensuring that age limits for alcohol consumption and gambling are adhered to. They risk losing their licences and committing criminal offences if they do not undertake age checks properly. Access control mechanisms have been tested by the claimants and others with satisfactory results. Access control may better achieve the objective, because a ban is likely to increase the trade in illicit tobacco, which is cheaper. [I should have thought that this would apply equally to effective access control. If young people who want to smoke cannot obtain cigarettes from vending machines, some of them are likely to obtain them from elsewhere.] The claimants say that there is evidence that more young people acquire illicit cigarettes than obtain them from vending machines. They say that the Final Impact Assessment failed to investigate properly experience in other EU Member States which should be regarded as relevant.[64]The Secretary of State submits that the claimants’ case has a number of misconceptions. It was not the decision of the Secretary of State to enact Sections 22 and 23 of the Health Act in its enacted form. It was the decision of Parliament, which rejected the Secretary of State’s proposal for remote control restrictions. The Secretary of State made the eventual regulations in the light of, and constrained by, the Parliamentary decision. When considering measures to protect public health, neither Parliament nor the Secretary of State are tightly constrained by nice comparison between smaller parts of a larger picture. Changes of view by the legislator are not material to a proportionality assessment. What matters is the outcome. As to the effectiveness of age control mechanisms, the Secretary of State points to evidence commissioned by NACMO which showed that 20% of purchases by test purchasers whose age ought to have been verified were made without the staff applying the procedure. There was also evidence that very few of the test purchases took place during busy periods. There were other possible untested circumstances when remote control restrictions might fail. The Secretary of State says that it is obvious that a measure which removes a source of tobacco will be more effective at reducing under age sales than one which leaves the source in place and is vulnerable to error, malfunctioning or evasion. As to illicit trade in cigarettes, the Secretary of State suggests that it is implausible speculation to suppose that young people who do not already buy cheaper illicit cigarettes will be driven to do so if vending machines are banned.[65]As to measures taken in other EU Member States, the Secretary of State points out that 13 Member States, apart from the United Kingdom, have prohibited cigarette vending machines. It is submitted that no amount of evidence of this kind could alter the conclusion that age control mechanisms are less effective than a ban for young people and ineffective for adults.

Inconsistency

[66]The claimants submit with reference to the cases of Hartlauer and Corporacion Dermoestetica that it is objectionably inconsistent to decide against one form of age-restricted access to tobacco (for vending machines), but to permit another such form (in shops and supermarkets). In the Dermoestetica case, there was inconsistency where advertising of medical treatments was prohibited on national television, but not on local television. There is said to be no difference in principle between the two cases. The evidence indicates that many more regular smokers aged 11–15 obtain their cigarettes from shops than from vending machines. It is inconsistent to ban only vending machines. The Secretary of State submits that the cases relied on have nothing to do with the change of policy. More persuasively, the Secretary of State submits that different forms of selling tobacco may legitimately call for different measures. The comparison is not between rejecting age control mechanisms for vending machines but permitting age control to operate in shops, but between banning the sale of cigarettes from vending machines and permitting sales in shops subject to age restrictions. Banning the retail of tobacco products entirely is not current policy. The Secretary of State can legitimately prohibit sales through vending machines without prohibiting all other forms of retailing. Member States are entitled to decide the ways in which human health is to be protected. Vending machines provide easy access to cigarettes for young people and are estimated to account for 4.5% of purchases by children. Vending machines also provide a temptation for adults. The World Health Organisation FCTC Guidelines recommend that vending machines should be banned and give reasons for their recommendations.[67]In my view, the claimants’ case on consistency is unpersuasive. As the Secretary of State points out, the comparison relied on is illusory. It is not inconsistent to ban one form of selling cigarettes without for the moment banning others. It is in any event unlawful to sell cigarettes to those under 18 by whatever means. The fact that a form of age restriction for vending machines was considered and rejected in favour of a ban does not mean that it is inconsistent to continue to permit sales to adults in shops, where sales to those under 18 are and remain unlawful.

Justification and proportionality – defendant’s case

[68]Mr Paines QC, on behalf of the Secretary of State, submits that the claimants’ approach on the question of justification under Article 36 TFEU and to the issue of proportionality in particular is erroneous. It wrongly supposes that any judgment about proportionality is the same in all circumstances. It overstates the intensity of review which is appropriate under Article 36, or indeed under Article 1 of the First Protocol of the Convention. Proportionality is not a principle where “one size fits all” (see Lord Walker in R (Pro Life Alliance v BBC [2004] 1 AC 185 at paragraph 144, in the context of freedom and expression under Article 10(2) of the European Convention on Human Rights). It varies with the nature of the right interfered with and the context in which the issue of proportionality arises (see Lord Steyn in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 at paragraphs 27, 28). It is connected with the principle of deference – the extent to which it is appropriate for the court to leave undisturbed policy and other choices properly available to the national legislature or other decision-makers (as to which see Lord Hoffmann in the Pro Life Alliance case at paragraphs 74-76 – “independence makes the courts more suited to deciding some kinds of questions and being elected makes the legislature or executive more suited to deciding others.”)[69]Mr Paines submits that the claimants in the present case significantly overstate the intensity of review that is appropriate under either Article 36 TFEU or Article 1 of the First Protocol. He points to the opinion of Lord Brown of Eaton-under-Heywood in R (Countryside Alliance) v Attorney General [2008] 1 AC 719 at paragraph 163, where he rejected the view that EC rights required a stricter test of justification than Convention rights. Lord Brown said:
“If anything, indeed, I would have thought interferences with the fundamental rights and freedoms guaranteed by the Convention more, rather than less, difficult to justify than restrictions on the merely economic rights of free movement of goods and services provided for by the Treaty. If anything, these economic rights seem to me more akin to the property rights protected under Article 1 of the First Protocol than to the core rights guaranteed, for example, under Articles 8-11 – and therefore to be more readily overridden in the broad public interest than the Convention’s core rights.”
At paragraph 156 of his opinion, Lord Brown had contrasted the position under Article 1 of the First Protocol with the test of strict necessity required for an interference with Article 8 rights. He said at paragraph 165 that if the ban on hunting, with which the Countryside Alliance case was concerned, were regarded as engaging Article 28 or 49 EC (as they then were), he could not believe that its justification would fall to be judged as strictly as would be the case if Article 8 of the Convention were engaged.[70]There is an intrinsic air of unreality about comparing in order to make a proportionality judgment the largely economic interests of businesses importing goods from other Member States with politically driven measures aimed at protecting the nation’s health. It is not surprising therefore that Mr Paines submits that the protection of public health is a matter of public interest which the legislature must be able to protect in full; and that the value of this public interest is so great that, in the legislature’s assessment, other matters of interest, such as the freedom of market participants, must be made subsidiary to it. The proportionality judgment here is not a matter of weighing the two competing interests, but of asking whether the health measure is appropriate, and whether any other less intrusive measure is available which would provide equally good public health protection. This is largely a matter for the legislature, for which the court exercises limited appraisal. Mr Paines gets this synthesis from 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. This was a case in which the European Court of Justice emphasised and took account of the duty of the Community legislature (in that case) to ensure a high level of health protection, and regarded this as a powerful reason for determining that a number of restrictive measures relating to the manufacture, presentation and sale of tobacco products were appropriate. The claimants submit that these were comments of the Advocate General not adopted by the court, and that the BAT case is distinguishable. Mr Paines says that the case concerned EU legislation, so it is unsurprising if the court did not pronounce on the margin of legislative discretion available to a national court. The court did state at paragraph 123 that the community legislature must be allowed a broad discretion in an area which entailed political, economic and social choices on its part, and in which it was called upon to make complex assessments. The legality of the measure adopted in that sphere could be affected only if the measure was manifestly inappropriate having regard to the objective which the competent institution was seeking to pursue.[71]Mr Paines says that Advocate General Geelhoed’s view of the margin of legislative discretion in health matters is supported by the Court of Appeal decision in R v Secretary of State for Health ex parte Eastside Cheese (1999) 3 CMLR 123. In that case, an order under section 13 of the Food Safety Act 1990 prohibiting commercial operations relating to cheese from a producer whose cheese was infected was challenged under Article 34 EC. The cheese producer appealed the judge’s decision that the measure was justified under Article 36 EC on the ground that he had wrongly applied the test of proportionality. The judge had concluded that, if grounds manifestly did not justify the making of the order under section 13, the court would interfere. If the objective of avoiding injury to health could have been achieved by lesser measures, the court should declare that the Department misused its powers. Lord Bingham of Cornhill CJ, giving the judgment of the court, said that the principle of proportionality, being so general, must be related to the particular situation in which it is invoked (paragraph 41). However the test is formulated, the maintenance of public health must be regarded as a very important objective in the application of Article 36 EC and must carry great weight in the balancing exercise (paragraph 43). In principle the decision on proportionality has to be taken by the national court, subject to any possible reference to the European Court of Justice. In the case of a legislative measure, the national court must not simply accept the view of the national legislature and confine itself to deciding whether what the legislature has enacted is reasonable (paragraph 45). Nevertheless, the national legislature has a considerable margin of appreciation, especially in legislating on matters which raise complex economic issues connected with the community’s fundamental policies (paragraph 46). Lord Bingham then cited from the decision of the Court of Justice in R v Minister of Agriculture, Fisheries and Food, ex parte Federation Europeene de la Sante Animale (FEDESA) (C-331/88, 13th November 1990; [1990] ECR I-4023) to the effect that in matters concerning the common agricultural policy, the community legislature had a discretionary power such that the legality of the measure adopted in that sphere could be affected only if the measure was manifestly inappropriate having regard to the objective which the competent institution was seeking to pursue. Lord Bingham said that the same approach could be seen in other cases, including case C-122/94 EC Commission v EU Council in which the Court of Justice stated that, in reviewing the exercise of such a power, the court must confine itself to examining whether it contains a manifest error or constitutes a misuse of power or whether the authority in question did not clearly exceed the bounds of its discretion. In Eastside Cheese, the commercial cheese interests had submitted that FEDESA was distinguishable and they argued for an orthodox test (paragraph 48). Lord Bingham said that there was no good reason in principle or authority for two sharply different tests. The margin of appreciation for a decision-maker, including a national legislature, may be broad or narrow. The margin is broadest when the national court is concerned, as in the present case, with primary legislation enacted by its own legislature in an area where a general policy of the community must be given effect in the particular economic and social circumstances of the Member State in question (paragraph 48). He said that the appeal must be approached on the basis that the Secretary of State, in making the emergency control orders, was not entitled to the broad margin of appreciation which might be accorded to primary legislation enacted by a national legislature.[72]One of the authorities referred to by Lord Bingham in the Eastside Cheese case was C-1/90 Aragonesa [1991] ECR I-4151 in which the European Court of Justice considered whether a prohibition on advertising drink having an alcoholic strength of more than 23 degrees in the media was proportionately justified under Article 36 EC. The court held that the measure was of such a nature as to protect public health (paragraph 15). As to whether it was proportionate to the objective to be attained, it was for Member States to decide the degree of protection they wished to afford to public health and on the way in which that protection was to be achieved (paragraph 16). They had to comply with the principle of proportionality. The measure in question did not appear to be “manifestly unreasonable” as part of a campaign against alcoholism (paragraph 17).[73]Mr Paines also referred to Case-262/02 Commission v France [2004] ECR I-6569 and Case-429/02 Bacardi [2004] ECR I-6613. In the first of these, French rules preventing French television channels from broadcasting sporting events taking place outside France which did not remove advertisements for alcoholic drinks were held to pursue an objective relating to the protection of public health and to be appropriate because they did not go beyond what was necessary to achieve that objective. Mr Paines derives from paragraph 24 of the court’s judgment in Commission v France the proposition that, contrary to the claimants’ submission, where the legislative objective is the protection of public health, the court does not inquire whether the benefits to human health outweigh the detriment. Paragraph 24 suggests that the questions are rather whether the measures are appropriate to secure the attainment of the objective and do not go beyond what is necessary to attain it. This is at first blush an unpersuasive submission, not least in this case where the Secretary of State has in fact spent a lot of time and effort attempting to assess the cost/benefit balance. In principle, however, a proportionality judgment has to balance matters which are relevant. One matter which is relevant for the purposes of Article 36 TFEU is to assess the strength of the justification for interfering with Article 34 rights of free movement of goods. This interference must engender detriment which should therefore enter into the proportionality judgment. A measure having very small benefit to public health would be likely to be regarded as disproportionate if the detriment which it would cause by interfering with the free movement of goods would be massive. In the language of Commission v France it would not be appropriate to secure the attainment of the objectives.[74]Mr Paines points in support of his proposition that the court does not inquire whether the health benefits outweigh any detriments to the opinion of Advocate General Geelhoed in cases C-434/01 and C-210/03, Arnold André [2004] ECR I-11825 and R (Swedish Match) v Secretary of State for Health, [2004] ECR I-11893 which concerned an EU directive prohibiting the sale of oral snuff. The opinion, which contains material to substantially the same effect as that to which I have already referred, also contains in paragraph 112 the proposition that the principle of proportionality is not to be confused with a comparative assessment of the protection of public health and the commercial interests of private companies. It might perhaps be said that Article 36 is concerned with the structure of the community as an institution where free movement of goods and services are not interfered with, not with the commercial consequences for private companies of such interferences. The Advocate General went on to consider in paragraph 114 cases where the benefits to public health of a measure could not be accurately foreseen. In such circumstances the legislature’s assessment was only open to criticism if it appears “manifestly incorrect” in the light of the available information. Mr Paines submits that the court in ArnoldAndré took the same approach – see paragraphs 45-49 of the judgment.[75]Mr Paines submits that many of the authorities cited by the claimants are irrelevant to the compatibility of primary or secondary legislation with Articles 34/36. I do not propose to address the detailed points he makes case by case. Suffice to say that the subject matter of many of these cases is far removed from the facts of the present case and many of them do not deal with proportionality in the context of an Articles 34/36 issue. Thus, Huang does not concern EU law, but is an immigration case concerning proportionality under Article 8 of the European Convention on Human Rights. The cited passage in Elias concerned the standard of justification in race discrimination being more exacting than the EC test of proportionality. Bilka Kaufhaus GMBH v Weber von Hartz [1987] ICR 110 is a case on Article 157 (formerly Article 141) on equal pay and is to be modified by later House of Lords authority in R v Secretary of State for Employment, ex parte Seymour-Smith and Perez (No 2) [2000] 1 WLR 435. In Lunt, Blake J was not purporting to prescribe how Parliament should approach the enacting of primary legislation. The claimants’ reference to Secretary of State for Education v Tameside Borough Council [1977] AC 1014 appears to be to a passage in the opinion of Lord Diplock about the correct approach to a challenge on Wednesbury grounds. There is no such challenge in the present case. R v Camden London Borough Council, ex parte H [1996] ELR 360 concerned an investigation by school governors into facts giving rise to a decision to exclude a pupil from the school, and says nothing about the obligations on legislators by reason of the principle of proportionality. Iyadurai is an asylum case concerning safe third country certificates under section 2 of the Asylum and Immigration Act 1996 and is not comparable with the present case. Rau concerned a choice of the least restrictive means of attaining the objective, but Mr Paines submits that in the present case the objective of preventing sales by cigarettes from vending machines could not be achieved by any means other than a ban.[76]I have taken these submissions of Mr Paines shortly, not to indicate my agreement with him that the authorities relied on by the claimants can be largely dismissed as irrelevant to the subject matter of the present case, but to indicate rather agreement that they do not displace the analysis advanced by Mr Paines, based on the authorities to which he refers, of the approach to the question of proportionality where legislative measures in the field of public health raise an issue of justification under Articles 36 TFEU.

Article 1 of the First Protocol to the European Convention on Human Rights

[77]As so often happens, the claimants’ case under Article 1 of the First Protocol in substance raises much the same issues as those which arise under Article 36 TFEU. It is perhaps regrettable that a separate analysis using rather different language and referring to different authorities is required. The jurisdictions in Luxembourg and Strasbourg have until fairly recently run on largely separate lines and, of course, the origins and foundations of their respective jurisdictions are different. It would be surprising, although not impossible, if, in a case where Articles 34/36 TFEU and Article 1 of the First Protocol of the Convention are admittedly both engaged, the different jurisdictions produced a different answer on the same facts. In essence, Article 1 of the First Protocol is also concerned with justification and proportionality, even if lawyers need to formulate slightly differently expressed tests.[78]I have summarised the effect of Article 1 of the First Protocol in paragraph 18 above. It is accepted that the monetary value of the claimants’ business and goodwill and those of the relevant members of NACMO are possessions within Article 1 of the First Protocol. It is accepted that a ban on cigarette vending machines would control the claimants’ use of such possessions. This is provided for by law and, generally speaking, in the public interest. The question is whether the legislative ban is properly deemed by the state legislature to be “necessary to control the use of property in accordance with the general interest”. To this end there must be a legitimate legislative aim and the measure has to satisfy the requirement of proportionality.[79]The claimants submit, with reference to SRM Global Master Fund LP v The Commissioners of HM Treasury [2009] EWCA Civ 788, that the analysis needs to address whether there is a fair balance between public interest and private right; the principle of proportionality; and the appropriate margin of appreciation. They say that the ban will deprive them of their possessions without compensation. It is not limited to controlling the use of possessions. For reasons already given, the claimants say that, whereas restrictions on the use of cigarette vending machines might have struck a proportionate and fair balance, the outright ban does not. No offer of compensation is made, and “a total lack of compensation can be considered justifiable under A1 P1 only in exceptional circumstances” – see Draon v France (2006) 42 EHRR 40 at paragraph 79. Mr de la Mare couples with the right to property and possessions the freedom to pursue a trade or profession as one of the general principles of community law.[80]The claimants do not dispute that the Secretary of State has a discretion as to how to strike the balance between the public and the private interest. Nevertheless, the Secretary of State must properly justify how the balance is said to have been struck and has not done so. This is especially so when, a month before the regulations imposing the ban were made, the Secretary of State was proposing a different, far less intrusive and less damaging solution.[81]The Secretary of State accepts that the vending machines themselves are possessions and that the presently quantified goodwill of the businesses is within Article 1 of the First Protocol. He says, however, that the ban does not give rise to a deprivation of property. Rather the regulations amount to a control of the use of possessions which remain the property of the claimants.[82]Mr Paines refers to Jahn v Germany, Applications nos 46720/01 and 72552/01 (2006) 42 EHRR 49 at paragraphs 91 and 93, for the propositions that an interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights; that there must be a reasonable relationship of proportionality between the means employed and the aims sought to be realised; that the state enjoys a wide margin of appreciation both in choosing the means of enforcement and in ascertaining whether its consequences are justified in the general interest; that the margin of appreciation available to the legislature is wide, and the court will respect the legislature’s judgment as to what is in the public interest unless that judgment is manifestly without foundation; and that compensation is material to the assessment and that taking property without payment of compensation (i.e. in a deprivation case) will normally constitute a disproportionate interference (although it did not in the Jahn case itself).[83]In R (Alconbury Development Limited) v Secretary of State for the Environment [2003] 2 AC 295, Lord Hoffmann said at paragraph 72 that the question of what the public interest requires for the first paragraph of Article 1 of the First Protocol (deprivation) should be determined according to democratic principle, by elected local and central bodies or by ministers accountable to them. The terms of the second paragraph of Article 1 of the First Protocol place emphasis on what the state deems necessary to control the use of property in accordance with the general interest. The European Court of Human Rights held in Marckx v Belgium, Application no 6833/74, 2 EHRR 330, that the paragraph sets up the contracting states as sole judges of the necessity of the law. This subjective approach is in contrast with the objective requirement of necessity in other articles of the Convention – see Neuberger LJ in R (Trailer and Mariner (Leven) Limited) v Secretary of State for the Environment [2005] 1 WLR 1267. Lord Neuberger said at paragraph 52 of that case, in describing the fair balance test between the general public interest and individual rights, which is tantamount to a requirement of proportionality, that the court must accord the legislature the measure of judgment described by Lord Hoffmann in Alconbury and by Lord Nicholls in Wilson v First County Trust Limited (no 2) [2004] 1 AC 816 at paragraphs 68-70. Lord Nicholls there said that decisions on these matters were primarily the responsibility of Parliament. Neuberger LJ said at paragraph 57 that the court had been referred to no case where the European Court of Human Rights had found that the absence of a provision for compensation in a control of use case had infringed Article 1 of the First Protocol. He said at paragraph 58 that the right analysis seemed to be that, provided the state could properly take the view that the benefit to the community outweighed the detriment to the individual, a fair balance would be struck without any requirement to compensate the individual.[84]Mr Paines submits that, applying these principles, Parliament and the Secretary of State could properly take the view that sections 22 and 23 of the 2009 Act and the Regulations strike a fair balance between the interests of those who own and operate cigarette machines and the public health interest in reducing smoking. Parliament decided positively not to enable the Secretary of State to impose restrictions on the sale of tobacco from vending machines, but to prohibit it. The assessment of Parliament, as the democratically elected legislature, is to be respected. In proposing the regulations, the Secretary of State was implementing the Parliamentary decision, which Parliament itself then implemented by affirmative resolution. It is not for the court to say whether the ban was or was not in the public interest. That was a question for Parliament. The question for the court is whether it was open to Parliament to take that view and whether the ban was proportionate – see Lord Hope in R (Countryside Alliance) v Attorney General [2008] 1 AC 719 at paragraph 75. As to proportionality, the court has a revising role. The more the legislation concerns broad social policy, the less ready will be the court to intervene – see Lord Nicholls in Wilson (a deprivation case) at paragraph 70.[85]Mr Paines further submits that the court is not here concerned with whether the legislation was the product of a defective decision-making process, but with whether the claimants’ Convention rights have in the result been violated. He points to the opinion of Lord Hoffmann in R (Nasseri) v Secretary of State for the Home Department [2010] 1 AC 1 at paragraphs 12-15. Lord Hoffmann there said that the correct approach is that stated by Lord Bingham in R (SB) v Governors of Denbigh High School [2005] 1 WLR 3372 at paragraph 29 and by Lord Hoffmann himself at paragraph 68, where he said that Article 9 (as it was in that case) is concerned with substance, not procedure. It confers no right to have a decision made in a particular way. What matters is the result; or as Lord Bingham had said at paragraph 31, what matters in any case is the practical outcome, not the quality of the decision-making process that led to it – see also Lord Rodger in DS v HM Advocate [2007] UKPC 36 at paragraph 82.[86]Mr Paines submits that Parliament’s enactment of sections 22 and 23 of the 2009 Act, and the making and approval of the regulations was the culmination of a process of public consultation running since May 2008. Representations were made by a variety of interest groups, including the vending machines companies. The detriment to the vending machine industry has been weighed against interests of public health by democratically accountable institutions. The Minister and Parliament could properly take the view that those interests outweighed the detriment to the economic interests of the claimants and the members of NACMO.[87]Mr de la Mare submits that the Secretary of State’s reliance on Nasseri and the Denbigh High School case in particular produces the startling result that domestic and EC law principles of fairness are redundant; consultation obligations are worthless if the measure is in the result proportionate; ignores the well established obligation of a decision maker to take a properly informed decision; reverses the court’s reluctance to accept after the event reasons; and abandons the need to analyse the legislative purpose of a measure, so long as it is justified in an overall sense. It is submitted that a proportionality test, whether under EC or ECHR law, cannot ignore whether the measure is directed to a legitimate stated objective, was fairly adopted after due consultation and based upon proper evidence. In so far as a decision was taken by those other than legislators, they must be of sufficient seniority. It is submitted that all these principles were breached in the present case, not least because the justification for the regulations introduced a new aim and reasoning backed by new evidence which the claimants and NACMO had no opportunity to consider. The House of Lords were concerned in the Denbigh High School case to reject a requirement of tabulated formalism, without which a decision could not be justified as proportionate. Neither in that case, nor in Nasseri, where the House of Lords rejected a general continuing duty of investigation in an Article 3 deportation case, was there a change of legitimate aim between the decision and its justification in court; nor was there any suggestion of unfair process. A legislative measure, it is submitted, cannot be defended after the event on evidence and grounds which the legislator was never invited to consider.

Discussion

[88]There are two claims for judicial review. The first challenge is to primary legislation by the national legislature whose aim, however it should be precisely expressed (see below), was to protect the nation’s health. The second challenge is to the regulations made at the instigation of the Secretary of State by Parliament upon an affirmative resolution. In so far as the regulations were those of the Secretary of State who in theory had a choice under the primary legislation, the reality was that she was implementing the will of Parliament. In my view, both should be seen as, or as equivalent to, primary legislation enacted by the national legislature in a matter aimed at protecting the nation’s health.[89]There is, in my view, a broad similarity between the present case and the Countryside Alliance case, which also concerned human rights and European law challenges to a legislative ban which was not that which the relevant Minister had promoted in Parliament. The relevant legislative aim, for the purposes of justification and proportionality, in that case as in this, is that of Parliament which enacted the legislation, not that of the Minister who promoted legislation which was rejected. Mr Paines is, in my judgment, correct to submit in the present case that the claimants wrongly developed a case which looks mainly at what they see as the Minister’s aim.[90]Admissible evidence of Parliament’s legislative aim starts with the terms of the legislation itself and admissible contextual background. It may include any inference which may properly be drawn from the fact that Parliament rejected the ministerial proposal. For a fuller discussion of these principles, see paragraphs 58, 267-9 and 339-340 of the decision of the Divisional Court in the Countryside Alliance case at [2005] EWHC 1677 (Admin), upheld in substance at [2008] 1 AC 719 paragraph 40. I note that no party to the present proceedings referred me to Hansard. They were correct not to do so. I also note, without taking account of the detail, that Mr Black’s evidence gives a narrative account of the various stages of the Health Bill in Parliament.[91]The terms of sections 22 and 23 of the 2009 Act with the consequent regulations in my view express the will of Parliament that the sale of tobacco products in automatic vending machines should be banned. The legislative measure enabling this is by amendment to an existing 1991 statute itself aimed at protecting children and young persons from tobacco. The contextual background included a number of consultations and impact assessments, whose main policy objective was to reduce under-age tobacco smoking. The contextual background also included the wider Government policy about smoking which I have described. Sections 22 and 23 were enacted in conjunction with section 21, which prohibited displays of tobacco products and whose promoted policy aim was “to discourage young people from taking up smoking and to create a supportive environment for people who want to quit smoking.” It is to be inferred that Parliament considered that the promoted scheme for mandatory age restriction technology for vending machines was inadequate.[92]From this evidence, I consider that Parliament’s legislative aim was to ban the sale of tobacco products from automatic vending machines in order to reduce the availability of cigarettes and their take up by those under 18 to the protection of their health. It must have been Parliament’s judgment that a ban would have that effect, and that a ban would be more effective than the scheme for mandatory age restriction technology which the Minister has promoted. It must, therefore, have been Parliament’s considered view that the scheme for mandatory age restriction technology would not achieve the legislative aim. A ban would also necessarily prevent adults from buying cigarettes from vending machines, and this might incidentally contribute to a reduction in adult smoking, as was recognised for instance in paragraph 53 of the December 2008 Impact Assessment and the stated policy aim for the prohibition of displays.[93]This Parliamentary legislative aim was, in my view, legitimate, if Parliament was properly entitled to conclude that the ban would indeed have the effect in particular of reducing the availability and take up of cigarettes by those under 18, that is that some young people who currently acquire cigarettes from vending machines would not acquire an equivalent number from other sources. This is a predictive question scarcely capable of being established by evidence. Rather it was a matter for Parliamentary judgment. But I found persuasive Mr Paines’ submission that it is obvious (and it was indeed open to Parliament to conclude) that, if you shut off one source of tobacco supply, there will be some reduction in smoking. In my judgment the legislative aim was a legitimate one, not least when it is seen in the context of the Government’s progressive programme to reduce the incidence of smoking.[94]As to justification and proportionality, I take the Article 1 of Protocol 1 case first. Here I accept Mr Paines’ submission that this is a control of use case and not a deprivation case so that, 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. I accept Mr Paines’ analysis of the applicable principles in paragraphs 82 and 83 above. Thus the second paragraph of Article 1 of the First Protocol places emphasis on what the legislature deems necessary to control the use of property in the general interest, and the court will respect the legislature’s judgment unless it is manifestly without foundation. For all that the Government carried out a series of cost benefit analyses, the very subject matter does not seem to me to be persuasively amenable to monetary comparison. I have indicated in paragraphs 23 to 26 above my scepticism about the money calculations of the benefits of reducing under-age smoking. The important thing, in my view, was that the legislature should be able properly to take account of the effect of the ban on the claimants’ and the relevant members of NACMO’s “possessions” for this purpose. I am persuaded that the effects were sufficiently described both in the Final Impact Assessment and in the Assessment of what was then option 3 in the Impact Assessment of December 2008. These effects were, in my view, in any event obvious since, if the sale of tobacco products by automatic vending machines is banned, those who supply and service the vending machines will obviously lose that business. I do not consider that Parliament would have been, or needed to be, concerned with a precise money calculation of this side of the balance. Nor did the Parliamentary judgment turn on such questions as whether a dubious cost/benefit analysis produced a positive or negative outcome. 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. 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. I am not persuaded that it was, not least because the ban was enacted in the context of a wider Government programme aimed at reducing the incidence of smoking. The claimants’ detailed criticisms of the cost/benefit analyses in the Final Impact Assessment in particular do not affect the antecedent Parliamentary judgment that a measure short of a ban was inadequate to achieve the policy objective.[95]As to the parallel question of justification and proportionality for the purpose of Article 36 TFEU, I have recorded in paragraphs 70 to 72 Mr Paines’ analysis of the relevant law, which, with one qualification, I accept. In short, 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. I have noted the opinion of Lord Brown in the Countryside Alliance case that economic rights of free movement of goods and services provided for by the Treaty are more akin to the property rights protected under Article 1 of the First Protocol than to other core Convention rights. I note also Lord Bingham’s reference in paragraph 50 of the Countryside Alliance case and Lord Hope’s reference in paragraph 131 to the fact that in that case (as I think in this) 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.[96]I have already expressed in paragraph 73 above my scepticism of the submission that the court does not inquire whether health benefits outweigh any detriments. Certainly the court asks whether the measure is appropriate to secure the attainment of the objective and that it does not go beyond what is necessary to attain it. In the present case, the ban was appropriate to attain the legislative aim which I have identified, and did not go beyond what was necessary, given the Parliamentary judgment that a scheme for age restriction technology was inadequate. But, as I indicated in paragraph 73, I find it conceptually difficult to imagine a proportionality judgment which does not make some comparison between the benefits of a legislative measure and its detrimental consequences. However that may be, the comparison in the present case is essentially the same comparison as that which I have considered for Article 1 of the First Protocol. For Article 36 TFEU, the justification to be considered is the protection of human health. The general interest for the purposes of Article 1 of the First Protocol is, in the present case, the protection of human health. The issue is in substance the same for each jurisdiction and I conclude for the reasons already given that, in my judgment, the ban on vending machines was not in error as being manifestly unreasonable or inappropriate. Its enactment was within the legislature’s margin of discretion and the Secretary of State establishes that it was justified for the purposes of Article 36 TFEU.[97]For these reasons, I dismiss both claims.

Cited in 2 later judgments