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by The Rt Hon Sir Robert Buckland KBE KC
In this post:
A message from Dr Christopher Snowdon
Does the generational tobacco ban discriminate unlawfully on the basis of age?
Is it compatible with international trade rules?
Could it violate the Windsor Framework in Northern Ireland?
& more!
Foreword
The uncharted territory of the generational tobacco ban
Dr Christopher Snowdon
The boldest part of the Tobacco and Vapes Bill, which is currently proceeding through Parliament, is a ban on people born after 2008 ever being sold tobacco products, including not only cigarettes, but cigars, heated tobacco, snuff and even cigarette papers. Since no country has tried this form of incremental prohibition before, the UK will soon be in uncharted territory.
The aim is to eventually reduce smoking prevalence to zero, but history shows that government coercion is never enough to eradicate products so long as demand persists. Cannabis has been illegal in the UK for nearly a century and yet more young people smoke spliffs than smoke cigarettes. Unless the British suddenly lose interest in tobacco for the first time in 500 years, the most predictable economic effect of the generational tobacco ban will be to shift sales from the legal market to the black market. As I showed in March, the UK’s black market in tobacco has increased enormously since 2020 and is much larger than HMRC estimates.
In the (very) longterm, it is self-evident that all tobacco sales will be illicit, but what about the near term? Because of the peculiar and unprecedented form of prohibition being adopted, it is not easy to predict what will happen. There are three variables that complicate matters.
First, it will be possible for 18 year olds in 2027 to get older friends and family to buy tobacco for them. Proxy purchasing of tobacco has been illegal since 2015, but it is exceptionally difficult to enforce. In the short term, it is this grey market that is likely to predominate, but for how long?
Second, there are some nicotine products that will not be affected by the ban as it stands. E-cigarettes and, increasingly, nicotine pouches are widely used as alternatives to smoking. To what extent will the ban nudge smokers and would-be smokers over to these products, and what will be the government’s response? The UK has traditionally been supportive of vapes, in particular, but the Tobacco and Vapes Bill gives the health secretary a great deal of latitude to clamp down on them in the future.
Third, tobacco taxes have been rising above inflation for many years and the UK now has some of the most expensive cigarettes and hand-rolling tobacco in the world. Since there is no sign of this slowing down, should we be resigned to the black market taking over regardless of what the legal purchasing age is?
These are all questions that we will be discussing at the IEA this evening at our Smoke and Mirrors panel discussion with my colleague Reem Ibrahim and the former director of Action on Smoking and Health, Clive Bates. We will also be joined by Sir Robert Buckland KC who will be discussing yet another problem that could flow from this untested policy. As he has argued in the Telegraph and argues at greater length in the article below, the Tobacco and Vapes Bill is legally questionable for a number of reasons. It is far from clear that it is compatible with the Windsor Framework, for example, and there are doubts about whether it is consistent with equalities legislation.
Prohibition of alcohol in the USA has often been referred to, somewhat sarcastically, as the ‘noble experiment’. There is no doubt that the generational tobacco ban will also be an experiment. Whether it becomes a model for others to follow or blows up in our faces - or even happens at all - remains to be seen.
Dr Christopher Snowdon is the head of lifestyle economics at the IEA and the author of ‘The Art of Suppression: Pleasure, Panic and Prohibition since 1800’.
The views expressed below are Sir Robert Buckland’s alone and not those of the IEA (which has no corporate view), its managing trustees, Academic Advisory Council members or senior staff.
Smoke gets in your eyes: a closer look at the Generational Tobacco Ban
The Rt Hon Sir Robert Buckland KBE KC
The balance to be struck between freedom and public health protection is a fine one. The Tobacco and Vapes Bill doesn’t merely raise the minimum age for the sale of tobacco products but creates a growing class of people to whom it will never be lawful to sell tobacco products. A policy like this has never been tried before in the UK or elsewhere and it raises several legal questions.
Is there a potential legal challenge to these provisions upon grounds of age discrimination?
Age is a protected characteristic under Section 5 of the Equality Act 2010, and Section 13 defines direct discrimination as occurring when a person is treated less favourably than another because of their age or age range. Section 13(2) specifically states that, in relation to discrimination because of age, it can be lawful if it is a “proportionate means of achieving a legitimate aim”.
The aim in question here is improvement in public health, particularly amongst young people. I think that it would be very difficult to establish that this aim was not legitimate. In applying the well-known test of proportionality, however, the crux of the argument centres around whether alternative measures that strike a better balance between individual rights and the interests of wider society could be adopted by the government.
Although the policy objective of government is to end the use of tobacco products by the entire population, the reality is that illicit sale and acquisition of tobacco will eventually become the only means of supply for the entire population. Would a more restricted purchase and supply system for tobacco products be a more proportionate means of achieving the policy goal?
To justify its policy, the government has referred to evidence showing a reduced take-up of smoking amongst young people when the minimum age was raised from 16 to 18. This evidence points at least equally, it can be argued, to another method of reducing take-up, namely a raising of the minimum age for the sale of tobacco products from 18 to 21. Does the evidence establish that a blanket lifetime ban on legal purchase rights from a set date would not be more restrictive than necessary to achieve the policy goal? I don’t think so.
Latvia is raising their smoking age to 20 this year and the Republic of Ireland is legislating currently to raise the minimum age to 21 in 2028. The Irish government took the view that a generational ban would conflict with EU Single Market Rules and the Tobacco Products Directive.
Apart from assertions by the UK government as to the proportionality of a generational ban, there is no full analysis of the potential effect of alternative measures such as the raising of the minimum age to 21, and then after the passage of, say five or ten years, to 25 or a higher age.
As this is primary legislation, the courts could not strike it down; the most that could ultimately be sought is a Section 4 Human Rights Act 1998 declaration of incompatibility with Article 14 of the ECHR upon the grounds that this is direct discrimination that cannot be justified according to Section 13 of the Equality Act 2010. Whilst this would not, of course, disapply the relevant provisions of the Tobacco and Vapes Bill/Act, the government would be obliged to legislate in accordance with the ECHR.
Is there a potential legal challenge as to the adequacy of the Impact Assessments prepared prior to the Bill’s introduction?
The absence of an Equalities Impact Assessment could form part of another, distinct basis of challenge, namely that the government failed to obtain adequate Impact Assessments on this Bill before its introduction. The Department for Health and Social Care has produced an Impact Assessment (IA) for the Bill, but no separate IA has been published by the Department for Business and Trade (DBT).
The IA runs to nearly 300 pages, and in the Costs and Benefits section running from para 196 onward, there is discussion about the impact on retailers, wholesalers and manufacturers, with Net Present Value (NPV) and Equivalent Annual Net Direct Cost to Business (EANDCB) calculations. Whilst I think that DHSC have responded to the initial criticisms of the RPC by adding an improved Small and Micro Business Assessment, the absence of an Equality Impact Assessment weakens the government’s case on proportionality and could give rise to a separate ground of challenge by way of judicial review.
In framing an argument as to the overall adequacy of the process, reliance can be placed on the weakest parts of the IA, namely the Wider Impacts Assessment and the lack of a wider impact assessment plan, as evidence to support the overall inadequacy of the process, and to raise a serious question as to the adequacy of evidence from businesses that would be affected by the measure. There are some significant weaknesses both in the extent and content of the Impact Assessment in this Bill that are capable of legal challenge.
3. Is there a potential legal challenge to the impact of the Bill’s relevant measures upon world trade rules?
As a member of the World Trade Organisation (WTO) and a signatory to the WTO Agreement on Technical Barriers to Trade (TBT), the UK is bound by its provisions. The Tobacco and Vapes Bill inevitably raises WTO issues, mainly from its impact on imported tobacco and vaping products, and from the discriminatory or trade-restrictive effects of the UK’s approach here.
The TBT Agreement ensures that technical regulations (including health and safety standards) do not create unnecessary obstacles to international trade; are non-discriminatory and are based on legitimate objectives (e.g. public health). The measure in this Bill applies equally to domestic and imported tobacco products, but, given the relevant countries of origin, it could be said to disproportionately affect foreign producers, making our market become inaccessible to foreign tobacco exporters.
Under Article 2.2 of the TBT Agreement, it states that: “Technical regulations shall not be more trade-restrictive than necessary to fulfil a legitimate objective...” The UK must justify the measure as necessary to protect public health. If less trade-restrictive means (e.g. progressive age rises, regulation, education) could achieve the same goal, the measure may be vulnerable to WTO dispute challenge.
Under Articles 2.9 and 2.10, the UK must notify other WTO members of the proposals; allow time for comment and consultation and publish the proposed regulation promptly. If the UK fails to follow this process, affected trading partners may make a complaint at the WTO TBT Committee. Looking at the WTO portal, I have not seen any evidence of such a formal notification by the UK. Although its argument is likely to be that possession or use of tobacco products by people born after 1st January 2009 is not going to be criminalised, the counter argument is that all legitimate trade in these products from supply through to sale is being progressively restricted and ultimately terminated by the criminalisation of their sale.
The most immediately affected country will be the Republic of Ireland, closely followed by other neighbouring EU countries. The potential effects on cross-border trade in tobacco products could be extremely significant, given the significant differences in legal regimes that will exist from 1st January 2027 if the generational ban under the Bill/Act comes into effect. Not only is legitimate trade going to be affected, but the effects of this change on irregular or illicit trade in the affected tobacco products could be extremely significant, particularly on the NI/RoI land border.
In summary, therefore, there are grounds for other interested nations to challenge the UK in the WTO, or for a person or organisation with the necessary standing to seek domestic declaratory relief that the UK is in breach of its WTO obligations by not formally notifying them of this proposed legislative change. Although the notification provisions aren’t specifically translated into UK statute, the Trade Act 2021 underpins the UK’s WTO obligations in domestic law and can conceivably form the basis of a domestic legal challenge by way of judicial review.
4. Are there grounds for legal challenge of the Bill’s relevant measures due to incompatibility with the Windsor Framework?
Baroness Merron, Parliamentary Under-Secretary at the Department of Health and Social Care, declared on the Bill’s front page that she is of the view that it does not contain provisions which would affect trade between Northern Ireland and the rest of the UK. Accordingly, no statement under section 13C of the European Union (Withdrawal) Act 2018272 has been made.
On the face of it, this is surprising. The Windsor Framework retains parts of the Northern Ireland Protocol, maintaining NI’s access to the EU Single Market for goods and alignment with certain EU rules, including the Tobacco Products Regulation (Directive 2014/40/EU). The Tobacco and Vapes Bill proposes a UK-wide generational ban on tobacco sales, but under the Framework, Northern Ireland remains bound by the EU Tobacco Products Regulation Directive, which permits legal tobacco sales to adults aged 18+. If the UK law applies in Northern Ireland, it would create inconsistency with EU law, violating the Windsor Framework.
The UK cannot unilaterally impose domestic product laws in Northern Ireland if they conflict with Retained or directly applicable EU law under the Framework. If the Bill is implemented UK-wide, but is not enforceable in Northern Ireland, tobacco could still be legally sold in Northern Ireland to 18+ consumers but banned in Great Britain for those born after 2008. This creates a regulatory loophole, risking the rise of a black market via illicit cross-border trafficking from Northern Ireland into Great Britain.
The Framework is part of an international treaty between the UK and EU, which revised the existing 2020 Northern Ireland Protocol that accompanied the UK EU Withdrawal Agreement. Unilateral divergence in product regulation without Joint Committee agreement risks a breach of international obligations, which could give rise to legal challenge in domestic courts (under the European Union (Withdrawal Agreement) Act 2020) and/or retaliatory action by the EU (e.g. via trade defence measures or arbitration).
The Tobacco and Vapes Bill is therefore not currently Windsor Framework-compliant unless the UK excludes Northern Ireland from the generational ban or it secures agreement via the UK/EU Joint Committee to allow regulatory divergence.
I have considered the potential of a challenge under Article 2(1) of the Windsor Framework, which would not merely have a declaratory effect, but which would in accordance with Article 4 of the Framework, directly disapply the relevant provisions of the Tobacco and Vapes Bill/Act, as in the NI Court of Appeal case of Dillon and Ors v Secretary of State for Northern Ireland [2024] NICA 59, which concerned those parts of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 which restricted criminal prosecutions and inquests relating to the Troubles.
Article 2(1) of the Northern Ireland Protocol revised by the Windsor Framework, which states:
“The United Kingdom shall ensure that no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement entitled Rights, Safeguards and Equality of Opportunity results from its withdrawal from the Union, including in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to this Protocol, and shall implement this paragraph through dedicated mechanisms.”
The 1998 Belfast Good Friday Agreement includes “the right to equal opportunity in all social and economic activity…” which can be construed to include being able to lawfully purchase goods and services eg tobacco products.
Annex 1 of the Revised Protocol has a long list of EU measures which include:
“Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC2 “
It follows that the relevant generational ban clauses in the Tobacco and Vapes Bill engage Article 2(1) and Annex 1 of the NI Protocol revised by the Windsor Framework. Article 4(1) of the UK EU Withdrawal Agreement 2020 makes it clear that its provisions are of direct effect in the UK:
“Article 4(1) The provisions of this Agreement and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States.
Accordingly, legal or natural persons shall in particular be able to rely directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law.
2. The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation.
3. The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall be interpreted and applied in accordance with the methods and general principles of Union law.
4. The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall in their implementation and application be interpreted in conformity with the relevant case law of the Court of Justice of the European Union handed down before the end of the transition period.
5. In the interpretation and application of this Agreement, the United Kingdom's judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period.”
A helpful test that is applied to such challenges was set out by Keegan LCJ in the NI Court of Appeal in SPUC Pro-Life Limited Application for Judicial Review [2023] NICA 35 at paragraph [54]:
“The appellant, in making this challenge, has to establish a breach of Article 2 satisfying the six elements test, namely: (i) A right (or equality of opportunity protection) included in the relevant part of the Belfast/Good Friday 1998 Agreement is engaged. (ii) That right was given effect (in whole or in part) in Northern Ireland, on or before 31 December 2020. (iii) That Northern Ireland law was underpinned by EU law. (iv) That underpinning has been removed, in whole or in part, following withdrawal from the EU. (v) This has resulted in a diminution in enjoyment of this right; and (vi) This diminution would not have occurred had the UK remained in the EU.”
This was a challenge under Article 2 of the original Northern Ireland Protocol, but as the Windsor Framework amends and clarifies this original document, I think that the six-stage test is relevant and applies to challenges made under the Framework.
Applying the relevant provisions of the Tobacco and Vapes Bill to the six-stage test, there are compelling arguments to say that the test is met. The economic right is the right to legally purchase tobacco products, which will now be removed by virtue of UK domestic legislation. The right was given effect in NI on or before 31st December 2020. The law was underpinned by EU law (The Tobacco Products Directive) and the new Bill will remove this in whole or in part with effect from 1st January 2027. This will result in a reduction in enjoyment of the economic right and it is a diminution that would not have occurred had the UK not left the EU. The fact that the government of the Republic of Ireland has, in contrast to the UK position, recently specifically considered and rejected a generational ban as likely to conflict with the 2014 EU Directive and has opted to raise the minimum age for lawful sales of tobacco products to 21 is a very useful indicator as to the effect of the Directive and the distinct position of Northern Ireland here.
As the Bill now faces the most intensive and detailed scrutiny by the Upper House this autumn, Ministers would do well to consider these legal problems and to take action to cure them before it becomes law. Otherwise, it may find that, via legal challenges and continued uncertainty over the evidence basis for the generational smoking ban, smoke will continue to get into the government’s collective eyes.
Rt Hon Sir Robert Buckland KBE KC is a barrister at Foundry Chambers, London. He is Senior Counsel and Head of Policy at Payne Hicks Beach LLP and a member of the Policy Unit at DAC Beachcroft. He was a Conservative MP from 2010-24, Solicitor General from 2014-19, Minister of State for Justice 2019, Lord Chancellor & Secretary of State for Justice 2019-21 and Secretary of State for Wales in 2022. He Chaired the Commons Northern Ireland Affairs Select Committee 2023-24.
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