Imperial Tobacco Ltd v The Lord Advocate As Representing The Scottish Ministers: SCS 2 Feb 2012

The company sought a reclaiming motion after dismissal of their request for judicial review of the 2010 Act of the Scottish Parliament.
Held: The appeal against the Lord Ordinary’s interlocutor was refused.
Lord Reed said that the nature of the Sewell Convention was essentially political, not legal: ‘The Scotland Act is not a constitution, but an Act of Parliament. There are material differences. The context of the devolution of legislative and executive power within the United Kingdom is evidently different from that of establishing a constitution for an independent state such as Jamaica or Barbados, or a British overseas territory such as Bermuda. In form, the Scotland Act does not resemble the fundamental rights provisions of a constitution: its provisions are dense and detailed. The Scotland Act can also be amended more easily than a constitution: a factor which is relevant, since the difficulty of amending a constitution is often a reason for concluding that it was intended to be given a flexible interpretation. Although the UK Government’s stated policy on legislation concerning devolved matters (currently embodied in the Memorandum of Understanding and Supplementary Agreements Between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee, Cm 7864, 2010, para 14), known colloquially as the Sewel Convention, may impose a political restriction upon Parliament’s ability to amend the Scotland Act unilaterally, there have nevertheless been many amendments made to the Act. They include amendments to Schedules 4 and 5, which can be effected under section 30 by Order in Council. ‘

Lord President, Lord Reed, Lord Brodie
[2012] ScotCS CSIH – 9, 2012 SLT 749, 2012 SC 297, 2012 SCLR 251, 2012 GWD 11-200
Tobacco and Primary Medical Services (Scotland) Act 2010 1(1) 9, Scotland Act 1998 29(1)
Cited by:
Appeal fromImperial Tobacco Ltd v The Lord Advocate SC 12-Dec-2012
The claimant company said that the 2010 Act was outside the competence of the Scottish Parliament insofar as it severely restricted the capacity of those selling cigarettes to display them for sale. They suggested two faults. First, that the subject . .
CitedMiller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 10 November 2021; Ref: scu.450608