Issue 14 - December 2016

WHAT CAN WE LEARN FROM THE SCOTTISH GOVERNMENT'S EXPERIENCE OF MINIMUM UNIT PRICING FOR ALCOHOL?

By Emily St Denny Researcher at Cardiff University and Paul Cairney, Professor of Politics & Public Policy, Stirling University

Research published by the University of Sheffield suggested that MUP could save the UK and Scottish Governments millions of pounds by cutting demands for health and policing services.

Attempts to restrict the availability of cheap alcohol have resurfaced periodically on the Scottish policy agenda since devolution. While a law introducing minimum unit pricing (MUP) was passed in 2012, it has yet to be implemented following strong opposition from commercial interests. The Scottish experience offers important lessons: internally, for Scottish policymakers wondering what they would do differently; and externally, for other governments seeking similar measures.

We argue that, if the Scottish Government had its time again, it would take a different approach to address unusually high and effective political and legal opposition. Further, at least one other government (the Welsh Government) remains very keen to learn from this experience, particularly since it does not have the same powers as Scotland, and needs to be more careful not to go beyond its remit.

The background: what problem was the Scottish Government trying to solve?

For some, problem drinking is the fault of a few irresponsible individuals (‘problem drinkers’). For others, Scotland’s drinking culture is a population-wide problem. This basic distinction is at the heart of the framing of alcohol policy: a policy instrument can be framed to address the ‘problem drinker’ or the drinking habits of the wider population. One might want an instrument to do both but have to decide which frame to use.

Events and decisions in 2009 marked a turning point in the policy debate. Research published by the University of Sheffield suggested that MUP could save the UK and Scottish Governments millions of pounds by cutting demands for health and policing services. On the back of such information, the Scottish National Party (SNP) minority government began efforts to introduce a 50p minimum in Scotland.

Its first attempt to pass MUP was rejected by opposition parties in Holyrood in 2010. This experience confirmed the need for clarity on problem definition: the Scottish Conservatives in particular framed their opposition as a ‘hammer to crack a nut’ argument, with regard to the general population suffering because of a small number of problem drinkers.

The following year, after gaining a parliamentary majority, the SNP tabled a further bill successfully - The Alcohol (Minimum Pricing) (Scotland) Act passed on 24th May 2012 - but did not solve that problem of framing. During both debates, many proponents presented it as an overdue population-level measure, contrasting it to targeted measures that had largely failed to curb problematic drinking in at-risk groups. The bill was strongly backed by public health organisations, children’s charities, and police representatives. Support for MUP was premised on the strength of the available evidence, which found the reductions of affordability to be the most effective lever to address consumption.

The legal and policy challenges

The implementation of MUP has been delayed ever since. A coalition of alcohol industry actors, led by the Scottish Whisky Association (SWA), fought the law, arguing it constitutes the disproportionate penalisation of responsible drinkers, especially those on low incomes. This coalition, in conjunction with European producers’ associations and wine-producing and exporting EU countries, also challenged the Scottish Parliament’s competence to introduce this type of measure and the policy’s legality in the context of European Union trade rules.

The coalitions associated with each side – the Scottish Government versus the SWA – have interpreted decisions as victories for their own cause. We extract four points from these interpretations:

  1. Discussions by the European Commission (EC) and Court of Justice of the European Union (CJEU) highlight the persistence of problematic problem framing. MUP often promises the best of both worlds: affecting problem drinkers primarily, but also the wider public. This framing can be effective politically, if presented as win-win, but ineffective legally if both aims are challenged.
  2. The EC and CJEU highlighted the potential consequences to trade: it could harm external competition if vendors were unable to, for example, reduce prices temporarily to get a foothold in the Scottish market.
  3. They argued that MUP could be justified on public health grounds only if the Scottish Government can demonstrate it is ‘proportionate’ to the problem and a better measure (to reduce drinking in the population) than a wider duty/ tax on alcohol.
  4. Eventually, this EU policy and legal ambiguity appears to have been resolved in the Scottish Government’s favour (although the SWA could still appeal). The CJEU seemed to favour tax measures but left the ‘final decision on the proportionality of MUP to the Scottish court’. The Scottish Court of Session’s Inner House appeared to agree with the Outer House’s Lord Ordinary’s consideration of Scottish Government evidence, that its policy was the only way to ensure a minimum price (a general tax rise was less predictable, since some vendors would sell at a loss).

While the Scottish Government’s competence over MUP has been challenged on the basis that it represents a tax, the Welsh Government’s attempts to introduce MUP have been blocked on the basis that it represents a policing or criminal justice matter.

Two lessons to be learned

There are good reasons why MUP legislation remains a priority for the Scottish Government, and advocates in England and Wales: it fits with attempts to introduce preventative policy interventions; and, the evidence-base is relatively well-established and resonates with ongoing political concern over alcohol-related health issues.

Yet, MUP in Scotland represents a cautionary tale in two key ways.

First, effective opposition does not begin and end in Parliament, and initial failure should have been more of a warning signal. With the benefit of hindsight, it is not surprising that the SNP Government should face so many difficulties. While the Scottish public is often assumed (without evidence!) to be more supportive of government intervention, price-flooring measures go to the heart of personal liberties and impose limits on free trade. Accordingly, opposition from commercial interests and politicians was swift and remains sustained.

Second, framing matters: to make policy is to describe a problem and its solution in clear terms. The Scottish Government often struggled to win political and legal debates decisively because its primary aim was unclear. Framing a policy solution widely can help generate wide support but also make policy vulnerable to multiple challenges, including the political fallout (‘why should normal drinkers suffer because of problem drinkers’?) and legal difficulties (‘why should business/ trade suffer?’). Further, while the Scottish Parliament is responsible for health policy in Scotland and has its own legal system, which covers alcohol licensing, it does not have the powers to modify alcohol duties. If MUP is understood primarily as a flat-rate tax on alcohol it falls outside of Holyrood’s competence.

In both cases, the Scottish experience offers lessons to Wales. While the Scottish Government’s competence over MUP has been challenged on the basis that it represents a tax, the Welsh Government’s attempts to introduce MUP have been blocked on the basis that it represents a policing or criminal justice matter. Successfully establishing minimum unit pricing as a devolved policy matter with a very specific and measurable purpose therefore appears crucial for retaining control over the issue and stopping detractors from shifting the debate to a less sympathetic venue, such as the courts or Westminster.

Emily St Denny is a Researcher at Cardiff University and Paul Cairney Professor of Politics & Public Policy at Stirling University

By Emily St Denny Researcher at Cardiff University and Paul Cairney, Professor of Politics & Public Policy, Stirling University

Issue 14 - December 2016

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