Alcohol: I Forgot To Remember to Forget

This last week from the BBC:

The new scheme [pretending - because it is against EU law - that there will be minimum pricing], which will be in force before the World Cup, requires retailers to use a complicated formula based on alcohol duty and VAT to calculate a floor price.

Those readers of mine whose memory has not been obliterated by the copious consumption of beer (other beverages are available) will of course remember this from January of 2011 - 3 years ago:

Under plans to be unveiled by the Home Office today retailers will be banned from selling drinks for less than the value of duty and VAT owed on them.

It's enough to turn you to drink...

Article 50, 2 Years And EU Law (Part 1)

If nothing else the prisoners’ voting saga at least demonstrates that if the UK government is willing, it can delay decisions and rulings from European institutions for many years – we’re now in the eighth year of ECHR’s ruling without implementation.

With this in mind, I wish to follow on from my previous piece regarding invoking Article 50. Should we do this, there would be a two year notice period (or earlier if there’s an agreement) where the UK is still an EU member and so subject to its laws until we leave. That exit is not immediate leaves open to some the accusation that the EU will, apparently in a hissy fit, force the UK to adopt all sorts of onerous laws with a specific view of damaging us. It is an accusation that plays on the emotions rather than one that is borne out by facts.

In essence the assertion has many fallacies, but two in particular are very significant - ones which pose insurmountable hurdles for the EU to overcome even if they wanted to as they both are contradictory to the defining characteristics of its existence. I will deal with each problem in two separate posts.

The first problem covered here is, ironically, answered by David Cameron’s recent EU speech. As is well documented, not perhaps fully acknowledged by the media, repatriation of powers from the EU to the UK is not possible. There is no mechanism within EU treaties to do it and as Van Rompuy says it would lead to the end of the defining principles of the Single Market:

"If every member state were able to cherry-pick those parts of existing policies that they most like, and opt out of those that they least like, the union in general, and the single market in particular, would soon unravel,"

In this he is not wrong, even if he is in everything else. The fundamental principles of the single market according to the EU are laid out here:

The cornerstones of the single market are often said to be the “four freedoms” – the free movement of people, goods, services and capital. These freedoms are enshrined in the EC Treaty and form the basis of the single market framework.

Naturally the only way this can be established successfully is to implement laws that apply to every member state the same – which is precisely why the Single Market is used as a Trojan horse to facilitate ever closer political and economic union. To ensure the Single Market runs according to the same set of rules, it needs a body of a bureaucratic makeup to impose those rules, and one which is aloof from its member states. That is the EU's raison d'etat - thus to behave contrary to that would be in breach of the fundamental discrimination principles of the Treaties as well as its intentions. An example of those principles are laid out clearly by Article 34 onwards of the Lisbon Treaty (page 56).

It’s the same reason that UK minimum pricing of alcohol is illegal under EU law as it discriminates against similar cheaper alcoholic products from elsewhere in the EU, in direct conflict with the principle of free movement of goods.

So by logical conclusion what applies to the UK also applies to EU institutions; they are duty bound by EU treaties for EU laws to apply equally and it is in their interests to do so. There is no legal mechanism for the EU to deliberately tailor onerous laws to target a specific country without it applying to the other members as well, in the same way a particular country cannot tailor the Single Market for their own ends. This is borne out again by the nature of the two main forms of EU law; Regulations and Directives.

EU Regulations are defined under Article 288 of Lisbon, described as (my emphasis);

“…binding in its entirety and directly applicable in all Member States”.

Clearly then Regulations cannot be used as a targeting exercise. Therefore we come onto Directives, the second major form of EU law, which are also defined in Article 288 (my emphasis);

A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.

At first glance there appears to be some scope to address each country directly - a form of targeting. However not so. It merely allows flexibility to account for the differences in the makeup of countries such as for geographic reasons. So for example as an island we have to implement a directive dealing with coastal pollution while conversely, and for obvious reasons, landlocked Austria does not. But the Directive still has to have a general effect, as outlined here:

Furthermore, a directive...is a text with general application to all the Member States.

Discrimination is prohibited on the grounds of nationality, under EU law, in accordance with Article 7 of the Treaty of Rome. Accusations of discrimination on grounds of nationality is one of the reasons for the ongoing legal battles with Iceland over Icesave.

So it is clear, even if the EU wished it, deliberately forcing upon us, in the event of invoking Article 50, onerous laws for the sake of it out of spite is very limited under current EU treaties. They would have to find a reason that was completely unique to this country so that any law passed would not affect the other 26 Member States as a consequence.

In the unlikely event they discover one, they will hit upon another very serious problem - timescale - and it is that I will address in part 2.

They Got There Eventually

The Telegraph eventually notices the elephant:

The European Commission has sent a nine-page legal opinion to the British Government warning that minimum prices are illegal – and that the Treasury should increase duty on alcoholic drinks if it wishes to raise the price.

The legal opinion states that setting a minimum price is illegal under laws governing the free movement of goods.Thirteen European countries, including major wine producers such as France and Italy, are understood to be preparing to take the British government to court to stop the imposition of a minimum price.

One wonders, as this was so obvious, why politicians kept banging on about it when they knew it was illegal? All it does is show up their own impotence:

However, ministers appear to have decided to defy the legal warning and yesterday unveiled proposals to introduce a 45p minimum price for each unit of alcohol. 

Why bother? They will lose...there's enough precedents by the ECJ to show this to be the case. Perhaps this will be one of mythical powers Cameron will claim that he will try to claw back.

Quote Of The Day

I've done this story to death, so I make no further comment for the time being, apart from highlight this quote from Dr Vivienne Nathanson, of the British Medical Association on Today:

"Alcohol is a dose-related poison, which means that the more you drink the more it affects you."

Really? Now where we be without those daily snippets of wisdom?

Legal Challenges?

Today I attended, along with many other like minded people, a meeting in Leamington Spa, seeking and fulfilling the ratification of the six demands of the Harrogate Agenda.

I will post tomorrow my thoughts in detail on the meeting, in the meantime Autonomous Mind has a great post here on his thoughts as part of a live blog.

As an aside this in a small way is the problem we face, from the Spectator:

I quote in full (my emphasis):

On Monday, the government is set to announce its alcohol strategy. It is expected that this will call for a minimum unit price of 40p. As Graham Wilson reports in The Sun, this idea is a personal favourite of the Prime Minister but opposed by several influential members of the Cabinet.

These ministers worry that it’ll be seen as the rich man taking away the poor man’s pleasure. Given the media reaction to the pasty tax and the caravan tax, this is a legitimate concern. They also fear that a successful legal challenge to it, which is a distinct possibility, would do further damage to the government’s reputation for competence.

Cameron himself is attracted to the idea because he thinks it’ll help cut down on binge drinking and by stopping supermarkets from doing cheap offers will help pubs compete. But the problem is it is a blunt instrument. It’ll hit responsible drinkers as hard as irresponsible ones.

A successful legal challenge? Now why would that be a problem? Where would the origins of that legality lie? And why doesn't the Spectator mention it? It's a subject I as a simple lowly blogger have highlighted why on many occasions. Legal difficulties was what it was called nearly 2 years ago.

The Spectator is part of the problem, a part of the establishment and most certainly not on the side of the people. It is not fit for purpose.

Hitting The Buffers

In one of those moments that makes your jaw drop (not) Scotland has had to abandon its flagship health measures of minimum pricing on alcohol. Despite the continuous hyperbole from the media and MPs on the benefits of such a scheme, the fact it's against EU law has largely gone unreported except by a few lowly bloggers.

But against EU law it most certainly is:

PLANS to introduce minimum pricing on alcohol in Scotland have been postponed indefinitely by ministers as a result of a growing legal challenge to the controversial move.

The Scottish Government has confirmed it will not be 
introducing the new law until legal action brought against it by drinks producers has been settled.

The decision means that the proposal, which was due to come into force in the spring of next year, has now been put on hold, with no date now available on when it could come in. Similar legal action taken by tobacco firms against a ban on promotional displays of cigarettes is still ongoing, and has now held up new laws by nearly two years already.

The SNP’s flagship health policy was already hitting difficulties after the European Commission ruled last month that it was opposed to it on the grounds it broke free trade laws. SNP ministers have until the end of the year to try and make their case to EC chiefs and avoid a potentially-damaging legal battle at the European Court of Justice.

Ironically this comes after a recent deal to allow Scotland to have a referendum on independence from the UK. Quite how Alex Salmond believes Scotland will be independent outside the UK whilst remaining members of the EU, when one of its flagship policies has been scuppered by laws made undemocratically elsewhere, is beyond me.

But then at least Scotland is allowed a straight in/out referendum; the rest of us get a fudge of a referendum on the EU which includes the fantasy of renegotiation. The contempt for us is nauseating. Our 'leaders' have hit the buffers.

Another Fine Mess

From the Sky twitter feed, above is apparently the front page of the Daily Mail tomorrow.

I've often railed on this blog about the lack of acknowledgement of the EU in this policy (and many others) and the churnalism of press releases. Slowly but surely though, whether it's through persistent comments online pointing it out I don't know, but the MSM are now reluctantly acknowledging the tentacles of Brussels. However never did I expect a front page headline like that in the Daily Mail after so long in denial.

Whether the headline stays like that after the first edition goes out I know not, particularly when a panicking number 10 starts making frantic phone calls.

Highly amusing though is the original story was obviously an attempt to distract the media from the continuing fallout of the budget. And now the 'bury bad news' item is coming back bite Cameron. If he stands up to the EU to appear Eurosceptic, he'll be supporting an unpopular policy. Yet if he caves in he looks weak in the face of the EU and his Government's policy is dramatically highlighted as being in complete disarray.

He really hasn't got a clue - what's the opposite of the Midas touch?

How Convenient?

I predicted about 2 months, but the minimum alcohol price story has reared its head after only just a month. So why so soon?

On a separate note, George Osbourne and the coalition have taken quite a kicking over the budget, particularly the so-called granny-tax:

The full extent of George Osborne’s stealth tax raid on pensioners was laid bare yesterday.

Around 700,000 people turning 65 next year will be hit the hardest – losing £323 annually with the end of age-related income allowances.

In all, the ‘granny tax’ will take £3.5billion from the pockets of more than 4.4million pensioners. Senior Tories have denounced it privately as the Chancellor’s biggest blunder.

So how convenient then that a perpetually announced policy that never materialises makes the headlines this morning.

I'm Saying Nothing...

From today's Daily Telegraph (my emphasis throughout):

The arrest of Labour MP Eric Joyce over an alleged assault in a House of Commons bar follows concerns over the culture of taxpayer-subsidised drinking in Parliament.

And from the Irish Times last Thursday:

BRITISH PRIME minister David Cameron has signalled support for a minimum price for alcohol that would raise off-licence prices, even though some members of his cabinet believe such a move could be illegal.

Mr Cameron, speaking during a visit to a hospital in Newcastle, said: “Every night, in town centres, hospitals and police stations across the country, people have to cope with the consequences of alcohol abuse.”

A Nation Of Goldfish

If there's ever one issue guaranteed to drive me to drink, it's the subject of binge drinking and minimum pricing, which has cropped up yet again:

Cells known as “drunk tanks” which detain inebriated people until they sober up could be introduced to towns to tackle the nation’s growing alcohol problem, David Cameron signals on Wednesday.

Next month, the Government publishes its alcohol strategy which is expected to recommend higher “minimum” prices for drink, potentially by increasing duties on many alcoholic beverages. 

Drunk tanks? What the hell are they? Challenger 2's that run on ethanol?

It's like there's some software in Number 10 that shows an alarm and says; 'it's been 2 months or so since the last 'binge drinking' press release - time for another, we'll just re-arrange the words a bit'. We had one in December and one in August and so on.

So cue another day of apparent 'news', liberally sprinkled with the same old photographs of young drunk women (well, if you can't beat them join them). Given that the call for minimum pricing has gone on for years the MSM seems incapable of asking the obvious question, to both Labour and Conservative governments; "so why don't you just do it?". No-one else seems to be asking the same question either, preparing to take at face value regular press releases. Nevermind we'll just go through this whole charade again in a couple of months time. We really are a nation of goldfish.

Meanwhile real news is happening...

Edited By An Elephant

I was initially going to ignore this report in the Telegraph because it is going over very old ground regarding minimum pricing on alcohol. We've been here many times before, not least nearly a year ago when the coalition 'pretended' they had in fact introduced such a ban:

It's like the 2010 election never happened and Labour are still in power.

But what caught my eye was that the Telegraph, who never mention the EU at all when it comes to this issue, almost fall over themselves pointing out that very elephant in the room:

The Business Department has warned that forcing firms to charge a minimum price could be illegal under European law. Andrew Lansley, the Health Secretary, favours a voluntary approach, but he has been overruled by Mr Cameron, although the compulsory scheme might fall foul of government lawyers.

And:

A Whitehall source said: “The Prime Minister has decided that when it comes to alcohol, something pretty radical now has to be done and he is keen on the minimum price. It is complicated how this can be delivered, particularly under European law...

And:

European law is complicated and minimum prices are only likely to be allowed if the authorities can demonstrate that they are tackling a major health problem without undermining competition.

And:

Historically, governments have been reluctant to look at minimum pricing because of concerns about the legality of the move...

What's going on? I can only assume that the regular Telegraph staff have gone on holiday for Christmas and the temporary cover are making a better fist of it. No doubt in January when the regular staff return, normal service of ignoring the elephant will be resumed.

'Legal Difficulties'

Much is being made this morning that the Government is introducing minimum pricing for alcohol, although in reality no such thing is actually being proposed. Instead of a blanket minimum price per unit, it is being linked to the duty and VAT paid:

Under plans to be unveiled by the Home Office today retailers will be banned from selling drinks for less than the value of duty and VAT owed on them.

But the announcement means the Government has stopped short of setting a blanket minimum unit price for alcohol – such as 50p per unit – which would have pushed up the average price of all products.

And there's a very good reason for this, a blanket price per unit would have been challenged in the European Courts as I blogged here and here. Don't expect the Telegraph to mention this though:

It is understood officials were concerned such a move would run in to legal difficulties. Similar proposals in Scotland were dropped.

No elaboration on what those legal difficulties are, and not for the first time has the Telegraph stayed quiet. In contrast even the BBC managed to get around to mentioning the EU in its report, albeit briefly:

Last September, the Scottish Parliament rejected plans for a minimum price per unit of alcohol of 45p, after opposition MSPs said the move would penalise responsible drinkers and could be illegal under European competition law.

Predictably the usual fake charities are not happy:

Don Shenker, chief executive of Alcohol Concern, said: "Duty is so low in the UK that it will still be possible to sell very cheap alcohol and be within the law.

"The government needs to look again at a minimum price per unit of alcohol. That is the only evidence-based approach that will end cheap discounts once and for all."

How about the evidence based approach that our real government lies in Brussels not in London?

Don't Mention The EU (again)

Minimum pricing for alcohol has raised its ugly head again:

Supermarkets are to be banned from selling wine, beer and spirits below a national "minimum price" under plans to be unveiled by ministers.

Only one paragraph in the Telegraph article hints at the problem:

Overall, their plans will be hard to introduce because they will run up against existing competition laws which ban unfair discrimination against firms which can supply goods at the lowest cost.

I wonder why. It's perfectly clear that this article is deliberately ignoring the EU issue, despite it being pointed out. It's time to do 'a Liverpool' to all the MSM.

Minimum Pricing

The BBC reports (elephant free of course):

The Scottish government's plans for minimum drink pricing are set to be defeated at Holyrood, despite a last-minute offer to save the measure.

Blah blah blah. We all know the proposal is illegal, but what's interesting so did the Scottish Parliament. They were warned back in March this year that minimum pricing was a breach of EU law:

A European Union court has today ruled against member countries which operate minimum pricing policies.

The Court of Justice of the European Union upheld an earlier opinion that setting minimum prices for tobacco in Ireland, France and Austria is against EU directives.

The move calls into question the SNP's proposed policy on minimum alcohol pricing.

Gavin Hewitt, chief executive of the Scotch Whisky Association, said: "Given this latest evidence, the Scottish Government must now recognise the legal realities.

"It cannot introduce a trade barrier in breach of the UK's European obligations by imposing minimum pricing on alcohol in Scotland."

Yet they pressed ahead with it anyway. So the question remains; are they stupid, or continued with the charade so that they can pretend that they still run their own country?

Booze

Yet again another call for minimum pricing to be introduced on alcohol. Yet again the fact that it's entirely illegal under EU laws is conveniently ignored.

Daily Telegraph Letters Page

For the first time ever, I have a letter published in the Telegraph (not that I write many to tell the truth).

I wrote it in response to two letters in Saturday's Telegraph; one by Andy Burnham the Health Secretary, regarding minimum alcohol price, which I also wrote about here.

My letter's been shorten somewhat and a couple of words rejigged, but the gist of the content remains intact:

SIR – There are arguments for and against imposing minimum alcohol pricing, but there is one fundamental problem. Such a policy would be in direct breach of article 28 of the European Community Treaty.

Greece and Ireland attempted similar policies with regard to cigarettes and the EU made it very clear that such price controls were illegal.

I find it odd that a government minister is either unaware of this or neglecting to inform us that this is the case. Either way it is another example of the impotency of our elected representatives and Parliament.

I'm slightly saddened that 'willfully' neglecting didn't get pass the sub-editor, but I guess they weren't likely to print a line that implies Andy Burham was being deliberately deceitful.

The Cost Of Alcohol

Just spotted this from Paul Waugh asking; 'Is Labour edging towards a min. price for alcohol?'

Citing an article in the Daily Binge Drinker which itself is recycling old news from early last year (yawn), Waugh goes into detailed analysis of Labour's position on alcohol pricing and whether they are seriously considering the option.


Waugh quotes Andy Burnham the Health Secretary:

"We need to balance the rights of people who drink responsibly with those who buy ludicrously cheap booze and go out and harm themselves and others. The mood has changed and there is rising public concern - we need to respond to that and move on the debate."

He then notes that:

Sources close to Andy Burnham rejected the Telegraph's take today, stating that he had not pushed the policy to Cabinet. But, intriguingly, Whitehall sources also said that the public would need to be taken on a "journey" of education about alcohol before the idea could be implemented. It could take 10, 15 years and would need cross-party consensus.

Leaving aside the rather patronising line about being taken on a "journey" of education, this is essentially all hot air and nonsense from Labour. There won't be minimum pricing for alcohol quite simply because it would fall foul of EU laws.

The EU permits governments (how jolly nice of them) to raise taxes in order to protect public health, but rules out minimum pricing if it negates cheap imported goods having a possible competitive edge. It would be in breach of the (EC) Treaty.

The issue of minimum pricing has already cropped up amongst EU member states when Greece and Ireland attempted the same policy with cigarettes. The EU made its position clear:

In this respect, the European Court of Justice has already stated that:

• imposing a minimum price is incompatible with the current legal framework (Directive 95/59/EC), since the setting of a minimum price by public authorities inevitably has the effect of limiting the freedom of producers and importers to determine their selling price (see also case C-302/00, Commission/France)
• minimum prices are not necessary, since the health objectives may be attained by increased taxation of tobacco products. (Case C-216/98, Commission/Greece).

The Commission fully supports Member States in designing measures on tobacco control in order to ensure a high level of public health protection. Among the measures that could be used, the European Commission advocates minimum taxes to tackle cigarettes’ consumption. This would have the same impact on the prices and would not hamper price competition to the sole benefit of manufacturers.

But no fear, this inconvenient detail won't stop politicians and the media pontificating about minimum pricing, despite that the UK has no power to actually implement it.