Court challenge delays Scottish display ban

The display ban was passed into Scottish law on 27 January 2010. A year later, the Scottish Government has had to put it on hold owing to a legal challenge from Imperial Tobacco, which has argued that the Scottish Government is not competent to pass the legislation.

Caledonian Mercury takes up the story (along with Scottish MSM and one or two local papers). There is little on the legal argument, most of it takes the form statements from Health Minister Shona Robison and Sheila Duffy. "The ban on displaying tobacco products in shops is being introduced to make cigarettes less attractive to children and young people," says the Health Minister. "It is disappointing that a tobacco display ban for large retailers will not be able to be introduced this year due to continuing tobacco industry legal challenges, but sadly not in any way surprising," says Sheila Duffy. I could have read their press releases myself: Scottish media coverage is typically disappointing.

By Stage 1 of the Bill in its report, September 2009 it was clear that there was no conclusive evidence that the tobacco display ban would have its intended effect of deterring the young from smoking. Richard Simpson wasn't put off: September 2009:

The fact that we do not have all the evidence is not a reason not to have such a ban. I promise members that if we always wait for the evidence, the tobacco industry—this is particularly the case with that industry—will use every means in its power to get around every piece of legislation that every country passes. 

I hope the newsagents and tobacconists have all made a note of that statement. For Richard Simpson MSP, the balance of probabilities (even if, as in this case, it goes against him!) will suffice as the basis of legislation that is likely to damage low-margin businesses in the pursuit of an ideological goal (elevating health concerns above all others is ideological).

Frank Davis's recent piece The Scaremongers rings true here. Frank describes how the health lobby (right up to the World Health Organisation) fills the place once occupied by religion, where faith and conviction can legitimately over-ride physical evidence. It's fairly inevitable that any industry whose business was threatened by legislation (especially on the basis of evidence that the industry considered unsound) would attempt to defend itself – yet Simpson presents this scenario as if to suggest that the Devil guides tobacco industries in their sneaky attempts to get around what now passes for Divine law inspired by a Health-driven Deity.

The health debate shows an ugly side to quasi-religious fervour. They hate the sin, but profess to love the sinner. Possession by demons makes a grand excuse to marginalise and disenfranchise sinners, all for their own good. Impoverishment is immaterial, if it improves spiritual (and physical) health. All this goes for smokers and likewise for the sellers of tobacco.

We can hope that this "healthist" religion has not afflicted the courts and that they are still able to occupy their rightful place in the body politic, as independent decision makers in justice. Shopkeepers like to offer a service to the customers (offering goods for display) just like publicans used to be able to do (offering an ashtray). Stopping them trading autonomously without good cause on the pretence that customers' children might be tempted into bad ways (without any evidence that prohibition actually works) will damage them. Putting them under constant fear of surveillance in case they are caught infringing the rules during restocking is actually vicious, and moreover really fiddling while Rome burns, and won't stop cheap imitations flooding the streets. Even without the devolution issue on which Imperial Tobacco is relying, there is enough to send this legislation back under a rock