SOME five years after the legislation was passed by the Scottish Parliament, the case against the minimum unit pricing of alcohol law has reached its final stage.

After a two-day hearing, UK Supreme Court judges in London retired to consider their verdict in the appeal by the Scotch Whisky Association (SWA) against minimum unit pricing (MUP).

The association’s lawyer Aidan O’Neill QC said the case could set a far-reaching precedent and have an impact on international trade. He said the nub of the SWA argument was “why not tax?”

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Arguing for the Scottish Government that the law should go ahead, Lord Advocate James Wolffe QC said the saving of 2000 lives over 20 years and the reduction of 38,000 alcohol-related hospitalisations outweighed a relatively minor impact on EU trade.

READ MORE: Letter: My mother was an alcoholic. Minimum pricing might have bought her time

Rejecting the argument that raising tax could achieve the same end – such taxation is a reserved matter for the UK Parliament which has rejected calls for MUP – Lord Wolffe told the court that Scotland’s consumption of alcohol is different and that there is a particular problem relating to “cheap vodka”.

The Lord Advocate did accept that in practice, if the Scottish Government were to consider that a tax or excise duty were an appropriate option, it would engage with the UK Government to give the Scottish Government power to introduce such a measure.

MSPs approved the Alcohol (Minimum Pricing) (Scotland) Act 2012 which aims to help address health and social problems associated with heavy drinking by setting a minimum base price for each unit of alcohol. Ministers justified the law by saying it targets cheap, strong drinks preferred by problem drinkers, without impacting adversely on more moderate drinkers.

The case has been appealed at the Court of Session which ruled in favour of the Scottish Government in 2013, after which the SWA appealed to the European Court of Justice.

That court said the legislation might break EU law if other tax options would prove as effective, but said it was “ultimately for the national court to determine” whether they did.

Scotland’s top judges at the Court of Session ruled that tax measures “would be less effective than minimum pricing” and gave the law the go-ahead, before the SWA was given leave to appeal to the Supreme Court to settle the matter once and for all.

The SWA’s case all along is that the law breaches EU regulations, as it could potentially restrict the free movement of goods and they have argued that there are “less restrictive” ways of acting to influence alcohol prices, such as excise duties and indirect taxation.

O’Neill told the court yesterday: “Frankly we have not had a satisfactory response in accord with the requirements of EU law.

“You are not allowed to discriminate against products that you think are undesirable because they are cheap.

“The whole point of a system of fair competition, which the single market seeks to achieve, is that the state can’t come in and say that some of those prices, formed under the free activity of the market, are not desirable.

“That goes against the absolute fundamentals of the free market. You cannot target some products because of their price and insist that those products and those products alone must have their prices raised.”

Defending the legislation, Wolffe said it was designed to work alongside taxes, as a measure specifically targeted at “hazardous and harmful drinkers”.

He said there was a “strong evidence base” that minimum pricing could provide an “effective intervention” in Scotland, but said that any impact on intra-EU trade would be relatively minor.

Wolffe added that simply raising taxes would have a “disproportionate” impact on “moderate drinkers”, saying: “The aim is not to reduce consumption for the sake of it, but to reduce alcohol-related harm.

“That is why the aim is expressed primarily in terms of targeting hazardous and harmful drinkers, as they are the drinkers who are most at risk of alcohol-related harm.”

Judgment is expected later this year and the Scottish Government has already indicated that it wants to implement the policy “as soon as practicably possible” should it win the case.