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Law Society submissions on Tobacco Plain Packaging to the Oireachtas Health Committee

Vice Chair: We are considering the heads of the Bill dealing with tobacco plain packaging. As members are aware, the general scheme of the Public Health (Standardised Packaging of Tobacco) Bill 2013 was referred to the joint committee for consideration shortly before Christmas. We will now hear from witnesses from the Law Society of Ireland regarding their views on the proposed legislation in this regard. I welcome Mr. Ken Murphy, director general, and Mr. John P. Shaw, president of the Law Society of Ireland. They are very welcome to the meeting.

Before we commence I wish to remind them of the position regarding privilege. Witnesses are protected by absolute privilege in respect of the evidence they give to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not comment on, criticise or make charges against a person or an entity by name or in such a way as to make him, her or it identifiable. I remind members of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official by name or in such a way as to make him or her identifiable.

I invite Mr. Shaw to make his opening statement.

Mr. John P. Shaw: I hope I will not find myself in need of privilege but I can come back to that. The Law Society of Ireland is the representative, educational and statutory regulatory body for solicitors in Ireland. I have the honour this year to be the president of the society, representing some 10,000 members the length and breadth of the country.

They are practising in some 2,200 legal firms and they also act for the public service bodies, industry and other sectors. Indeed, 16% of our members now work in-house.

I am here today with perhaps the better known face of the Law Society, the director general, Mr. Ken Murphy. The Law Society welcomes the opportunity to come before this Oireachtas committee to elaborate on its intellectual property law concerns regarding the proposed Bill. Let me begin by making it perfectly clear that this society does not represent anybody other than its members. The society is not here to represent either directly or indirectly the view of the tobacco industry. We have accepted the invitation to attend today to consider exclusively the intellectual property law aspects of the proposed Bill. We do not claim to have any expertise in health policy.

The witnesses who appeared before the committee over the past three sessions, have, as Deputy Ó Caoláin said on one such occasion, come at it “from a variety of experiences and responsibilities in life”, and so too does the Law Society. It should come as no surprise that many of the society’s members represent plaintiffs who are in legal action against both tobacco companies and the State in respect of smoking related injury. In addition, many members are working for, and alongside key State agencies that play a central role in the fight against illicit trade, including Revenue, Customs and Excise and the Garda Síochána. Some of our members represent those who have been accused of illicit trade. Naturally also some solicitors act as legal advisers to tobacco companies. Some members of the society work on a daily basis in intellectual property law as it applies to the entire gambit of industry sectors, in particular the food and drinks sector, engineering, information technology and pharmaceutical companies to name but a few.

For the avoidance of doubt, we are not here to defend the tobacco industry and are not, to use the expression, “in the pocket” of anyone. We fully accept that tobacco has had a disastrous impact on health. It is important to us then that the Law Society is not portrayed as representing anybody other than its members and the public interest which the profession serves. On this point, it should be noted, for the record, that the Law Society constantly participates in public consultations on a wide range of issues that affect the public and the profession. Our contribution and participation has been extensive, on issues from human rights to conveyancing, probate to criminal justice, and all forms of litigation. In addition to constant interactions with Government Departments and agencies, in the past two years alone, the Law Society has made a total of 20 formal submissions on issues ranging from complex insolvency law reforms, various criminal justice Bills and litigation reforms. The director general and I were in Leinster House yesterday for the conclusion of the Committee Stage of the Legal Services Regulation Bill in which of course we would be a stakeholder. Submissions made by the Law Society, represent the commitment of its 10,000 members to contribute to public discourse, bringing with them the benefit of their legal understanding and professional experiences.

We are concerned with the legal implications of the concept of plain packaging as such, and how it might affect the standing of intellectual property rights here in Ireland and abroad. That is to say, we have no issue with the policy objectives underpinning the Bill but we do have concerns regarding its impact on the intellectual property regime in this country. To put this in context, I would like to preface our substantive submission with the following brief comments. These are statistics we have put together to show our concern. The Office for Harmonisation in the Internal Market in September 2013, stated that along with Germany and Hungary, “Ireland has the highest share – 40.8% – of trade mark-intensive value added in their GDP”. The above report also states that of all the European states, “the highest share of jobs in IPR-intensive industries generated by companies from outside the EU is to be found in Ireland, at almost 18%”. EUROSTAT, the statistical office of the European Union, confirms that there are currently 138,000 people working in knowledge intensive industries and high-end manufacturing in Ireland, such as pharmaceuticals and technology companies where IP assets are their key asset. This is an increase of 5.3% since 2008.

We note that no regulatory impact assessment has yet been prepared on the proposed Bill. We look forward to it to the extent that it will consider what impact the proposals will have on rights under intellectual property law in Ireland. Clearly it is the proper and important task of the committee and the Oireachtas to strike that careful balance between protecting and maintaining intellectual property law with public health and other relevant public policy considerations. Our submissions aim to assist the committee by outlining key legal concerns and potential ramifications of plain packaging proposals.

In February 2013, the society stated and here today again states that:

A fully functioning intellectual property system, which operates consistently and transparently across all sectors and provides certainty for intellectual property owners, investors, international partners and traders and members of the public, is vital to the future of both the EU and Irish economies. Reforms which have the effect of undermining that system should be considered very carefully.
We then go on consider the constitutional issues and our submission sets out a key consideration.
The Irish Constitution requires the State to protect property rights and the Irish Supreme Court has previously struck down legislative provisions as unconstitutional where they involved restrictions on the exercise of property rights or a deprivation of rights all together without compensation for such interference.
In relation to restrictions on property rights, we do not underestimate the crucial role of the legislature in striking that balance, that principle of proportionality. Our submission emphasises the challenge for the Oireachtas. The test of proportionality, as developed by the High Court and the Supreme Court, requires, first, that the restriction on use of the trademark must have an objective of sufficient importance to warrant interference with the property right in the mark; second, that the impairment of this right should be minimal as possible; and, finally, the effects on the constitutionally protected right should be proportionate to the objectives sought to be attained.

Were this matter to come to court, it is likely that the court would be asked to consider evidence available regarding the effectiveness of plain packaging on smoking habits as against the range of other actions that can be considered to minimise or eradicate smoking. Some of these have been highlighted by other witnesses, such as taxation, educational and cessation initiatives, sanctions and penalties, etc.

Ireland is a signatory to the World Trade Organization, WTO, and specifically the TRIPS, Trade-Related Aspects of Intellectual Property Rights, agreement. Under that agreement, we have committed to respect a number of key provisions that impact on the nature of trademark rights. We have outlined four of them but for the sake of brevity I do not intend to read through them, save to say that there is a provision that the Government can use the health consideration in order to impact on property rights but it must have regard to the ownership of those property rights. We then go on to consider the potential exposure for the State. The Law Society is concerned that the extent of interference envisaged by the proposed Bill may give rise to potential actions against the State, and Europe under the provisions of the TRIPS agreement.

The Charter of Fundamental Rights of the European Union is binding on member states under the Lisbon Treaty and Article 17 of the charter guarantees rights to property, expressly including intellectual property rights. The European Court of Human Rights has held that property for this purpose includes intellectual property and has distinguished between a straightforward deprivation of property and restricting the use of the property in the general interest. Consequently, the State runs a risk – and it is that, a risk – of going beyond regulation and restricting rights which affect the substance of a trademark, in contravention of our international obligations.

The Law Society submits that restrictions of property rights should be carefully considered, in addition to all other approaches which are less severe but might be likely to have similar consequences. The court will ask the question, applying an objective test, whether the decision maker – that is, the Oireachtas – could reasonably have concluded that the interference was necessary to achieve the legitimate aims recognised by the convention. The society’s intention today is to underline the need for careful and robust examination of the options available.

The Law Society submits a further concern in respect of our European obligations, namely, that the introduction of plain packaging may give rise to a challenge that it acts as a barrier to the treaty-based freedom of movement of goods. Put simply, products sold in another members state, would not have the same access to Irish markets as a result of the Bill’s provisions. Ireland is entitled to rely on a derogation on the grounds of public health, but should anticipate a challenge on that ground.

In terms of the loss of trademark rights, the fundamental purpose of a registered trademark is to distinguish goods or services of one undertaking from another. If a trademark ceases to be used, it cannot continue to operate as a distinguisher of origin, quality, etc. Consequently, and as currently framed, the “use it or lose it” rule could result in a reduction in intellectual property value for companies, which may give rise to compensation claims payable by the State. The Law Society is concerned that unintended consequences could result not only in claims against the State, but could also adversely impact on businesses and employment. The role of the intellectual property, IP, in foreign direct investment should not be underestimated, and perhaps should be included in the regulatory impact assessment of the Bill.

Tobacco smoking, with its destructive effects on young people – on all people – and the burden it presents for the health sector, is an emotive issue. The basis of our appearance here today is to draw attention to the potential impact of the Bill to the regard in which Ireland is held internationally in respect of intellectual property and to set out generally some key legal concerns for the committee to consider. The general scheme of the Bill gives rise to unavoidable legal concerns of both an Irish and EU character. We respect the task that the committee has before it. We are available to assist with any questions in any way we can.
Deputy Sandra McLellan: Information on Sandra McLellan Zoom on Sandra McLellan I thank the witnesses for their presentations. I read the submissions which will be very useful going forward. I convey the apologies of Deputy Ó Caoláin as he had business elsewhere in the House.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I hope I can benefit from the time allowed. Mr. Shaw and Mr. Murphy are very welcome. I will start first with the submission. It was clearly outlined that it had come from a committee within the Law Society. I looked up the membership of the committee and the links. I then contacted the committee to confirm the declaration of interests we received because among the submissions we requested, point 5 clearly outlined what we expected from a declaration of interests. We had to request the declaration of interests, which we received for the intellectual property law committee and that is all I can talk about now. I am surprised because as a Member of the Seanad I must declare any interests I have. When I speak in the Seanad, I declare I am chair of Early Childhood Ireland. I get zero payment for that but I still declare it. The most polite description of the declaration of interests we received is that it is opaque. It does not show the clear links that exist. If someone can clearly outline when they have a conflict, I expect that legal people will argue for different sides. I do not expect that members of the Law Society have no links but I am surprised at how loosely worded the declaration is. Yet, if anyone takes any time to look at the membership of the committee we can see clear links, not just from the companies, that the individual solicitors are clearly working. It is accepted that solicitors can take business but I take issue with the fact that they cannot declare it.

In the declaration it says that one member of the committee was previously employed by P.J. Carroll and Company but he was not a member of the committee while so employed. My question is whether the Law Society has a concern about his previous role in connection with the submission that was made on behalf of the Law Society and how he became a member. What expertise did he bring forward to qualify him to be a member of the committee? What I have seen throughout the hearings we have held is that the tentacles of the tobacco industry are everywhere. We are seeing the same sentences again and again when we receive certain submissions. I want to be assured of the true impartiality that is being put forward. The reason I asked the question about the declaration of interests is because of the reference in the submission to smuggling and counterfeit products. I would have thought that was outside the remit of expertise of the committee on intellectual property law. That is what sparked my question on declarations of interest.

The High Court in Australia held that there was no acquisition of intellectual property rights, as the state did not receive any benefit. If we look at cases in the Irish example, the reality is that they have all been to do with land. The cases all related to land and involved compulsory purchase orders. The State has already limited intellectual property rights on advertising and putting health warnings on cigarette packets. It is a justified and proportionate restriction on the use of trademarks. The State is not proposing to extinguish any rights. Is that the understanding of the Law Society? Will the State extinguish the right or is it about the State restricting and limiting? The State has a responsibility for the common good and also to ensure the public health. The State will receive no financial benefit from doing that. I wonder what the merits of a case would be.

Senator Colm Burke: Information on Colm Burke Zoom on Colm Burke First, I had better declare my interest in that I am a member of the Law Society. I wish to raise the issue of property rights in terms of where the State is taking action that involves public health.
Submissions the committee received over the past number of weeks clearly indicate that 5,000 people are dying per annum as a direct result of smoking. I stated this morning that since the Surgeon General in the United States published his report in 1964, some 250,000 have died in this country as a direct result of smoking. Does the State have an obligation to take every possible action to protect the health of its citizens that takes precedence over property rights?

I raised this second issue already this morning. The legislation dealing with the ESB that was introduced involved rights to go over land and even though I might be a landowner, I cannot restrict the ESB from going over my land because it was established that there was a need to get electricity supply to every household in the country. In that case, the landowner’s property rights are being infringed upon. In this case, not only in this decision by the Department of Health but in a number of its decisions to reduce the numbers smoking, we are constitutionally obliged to do everything possible to protect people’s health. I do not understand how property rights could take precedence over the rights of people to live and the right to ensure that we can do everything possible to remove the risks. Will the Law Society representatives deal with that issue?

The other matter I am a little concerned about is that there is no submission from the Law Society setting out the obligations of the State to reduce the health risks attached to smoking. The Law Society has told the committee about intellectual property rights, but what about people’s right to live and to ensure that their lives are not at risk in any way? If a drug was being sold in a pharmacy in the morning and it was identified that this would cause death, the State would be obliged to take immediate action to have that drug withdrawn. The Law Society has not dealt with that in its submission. I am talking about bringing balance to the submission. Why not make a submission to us on the obligations of the State to do something in that area?

Deputy Mary Mitchell O’Connor: Information on Mary Mitchell O’Connor Zoom on Mary Mitchell O’Connor I thank the Law Society delegation for their presentation. I ask their professional opinion on whether the tobacco companies have a credible argument based on the extinguishing of IP rights. I heard them speak of a risk and I want to know if there would be reasonable grounds for suing the State over this issue. If so, how much would be involved and are there comparable cases of which they are aware?

I listened to my colleagues and I have read the presentations. It seems that the constitutional cases that have been taken have been to do with land but Articles 40.3.2° and 43 of the Constitution recognise that in a civil society property rights have to be regulated by principles of social justice and in accordance with the common good. The common good will be to protect the health of the Irish people. I am not quite sure how that can apply and I ask for their professional opinion.

I also want their professional opinion on how Ireland’s name and trademark is recognised in America. A number of American committees and business organisations have written to the Chairman to set out their concerns. Are their views credible that there is a risk of litigation attached to the proposed legislation? Is that risk of litigation real?

Deputy Regina Doherty: Information on Regina Doherty Zoom on Regina Doherty I thank the delegation for attending. I do not have a legal background and I apologise if the question appears stupid. I gather from their proposal that everybody has a constitutional right to their property and if the matter ever gets to court, the State would have to prove that the objective hoped to be achieved will be achieved and also that it is more achievable in this way rather than using the string of other measures that are already available to us, and that in doing so it would have to be sufficiently important to warrant the interference with somebody’s intellectual property rights. The objective of this is to save people’s lives and to stop children from starting smoking, which seems to be the main objective of the tobacco industry. That is sufficiently important to warrant the interference. The measure of the Supreme Court case judgment would be the evidence. If plain packages are introduced on 1 January next, one cannot take a case on 3 January next because the evidence will not have been allowed to develop and flourish. How long would it be before the Supreme Court would state that it needed to give this six months, a year or five years so as to test and prove the case? No doubt a case is coming. What would be the timescale for the Supreme Court to state it needed a certain amount of time to see whether the intended actions materialise?

Vice Chairman: Information on Ciara Conway Zoom on Ciara Conway Does Deputy Kelleher want to come in here?

Deputy Billy Kelleher: Information on Billy Kelleher Zoom on Billy Kelleher I do not want to be repetitive. I read the Law Society’s submission with interest and the submissions of the various other stakeholders in this pre-legislative consultation.

I assume the representatives are here because they are advocates not of the tobacco industry, but of the protection of intellectual property rights. I assume that is their focus. However, in their submission they strayed into areas such as smuggling. I am not aware of their expertise on smuggling, but I assume it is not to the fore of their expertise and we will stick with the law as it is. While they are entitled to have a view on smuggling, I would suggest that there are some inaccuracies in it. The committee will be aware, for example, that the tobacco companies are part and parcel of smuggling in the sense that most tobacco smuggled into this country is made legitimately by these tobacco companies in other jurisdictions where they flood the market which cheap cigarettes, making it financially viable for smugglers to bring them into this country. That is what is happening. It is not that there are factories all over the world making illegal cigarettes. They are being made legally by these companies, dumped into Third World markets where they flood the market and are then smuggled into here. That is the illicit trade and that is the way it works. It is not that cigarettes are being made in bamboo huts in far-flung parts of the world. They are being made in sophisticated factories throughout the First World. They should be conscious of that when making their views known.

On IP itself, from the Law Society’s perspective, the only court from which we can take precedents on this issue is the Australian High Court. The Australian Government’s legislative programme was challenged by the tobacco companies and it eventually ended up in the High Court in Australia which, I suppose, would be equivalent to our Supreme Court. The court found in favour of the Australian Government. I am trying to tease this out. Could Mr. Shaw explain what the court found in favour of? Did it find that the Australian Government had a right possibly to usurp or even undermine the intellectual property rights of individual companies for the greater good? Was it, in the context of the greater good being the real issue here, that the state was entitled in certain circumstances to protect its citizens by usurping or overriding the intellectual property rights? I am trying to get a flavour of Mr. Murphy’s and Mr. Shaw’s interpretation of that issue, bearing in mind they could act for companies that may take this State to court as well. I would like to know what would be their defence or argument.

Vice Chairman: Information on Ciara Conway Zoom on Ciara Conway Following on from Deputy Kelleher’s question, if the tobacco industry was to take a case against the State, am I correct in thinking that some of the Law Society’s members would represent the tobacco industry?

By his own admission in his testimony before us, Mr. Shaw stated that the Law Society has no expertise in health policy.
[Vice Chairman: Information on Ciara Conway Zoom on Ciara Conway] I would like to know more about why the society has decided to make a submission on this issue considering that when this committee dealt with other constitutional matters, including the Protection of Life During Pregnancy Bill, it decided not to make a contribution. I would be interested in hearing the society’s motivation for appearing now and not then.

Mr. John P. Shaw: I will start with the questions on the integrity of the society and its committee. I assure the members that I am absolutely satisfied there is no interference nor is there any connection whatsoever with anybody in the tobacco industry regarding the manner in which this is being prepared. Our committee is appointed annually by the incoming president after consultation with the outgoing chairman. Approximately three pages of questions are raised. It is asked whether new people are required and what is needed. It is organised on the basis of the speciality of the committee. I was involved in the appointment process in September of last year and I had no regard whatsoever to the tobacco industry or the make-up of the committee as it related to that industry. What I wanted to know was whether the people on the committee had expertise in intellectual property law and that they would do work that was valuable to the society. Those are the criteria used.

I do not want to get too legalistic about the declaration but I read through it in detail. The declaration we made was intended to be of help by way of pointing out that there were people whom members might think are connected to the tobacco industry to some degree, be it remotely or otherwise. If it is considered loose, I accept the committee’s description. However, the intention is as I have described. I reviewed it because I wanted to see exactly what it stated. If I were considering it again, I might just say the Law Society, as it stands, did not have to make any declaration. That is being overly legalistic in regard to the matter and I would not even go there. It is not worth doing so as we would be wasting time. I genuinely believe we made an honest attempt to disclose fully any interest of any person connected with the making of the submission to the committee.

With regard to the counterfeiting issue, I take Deputy Kelleher’s point on smuggling. Counterfeiting and smuggling are, perhaps, two different issues in terms of the way we examine intellectual property law. Intellectual property lawyers have an interest in protecting their clients’ interest in combating counterfeiting. I accept that when the submission was made, we were not aware of the evidence that this committee has since learned. The committee heard evidence this morning from the tobacco industry on the matter. We were not aware of that. The committee has heard evidence from the Garda Síochána and Customs and Excise that they do not anticipate any significant difference. We accept that evidence and we have no reason to go against it. However, the reason people would have examined the counterfeiting issue in respect of intellectual property law was because it came under that umbrella, but it was not by any means their main point.

Let me move on to property rights and Senator Burke’s point, particularly in respect of the ESB. Neither Mr. Murphy nor I have expertise in intellectual property and we would not advise people who are looking for advice thereon. We have general legal qualifications. I, in particular, have dealt with cases involving claims against the ESB for the loss of property rights consequent to its having put pylons over property. The pertinent distinction concerned whether the property’s use was affected. It was deemed that if there was an existing use, such as farm use, it was not adversely affected, but that if there was planning permission and development potential, it was compensated. It was the deprivation of use that attracted compensation, not the taking away of the property. I am jumping a little in that regard because I believe asking us to deal with the question on the Australian case is a little unfair because we do not know enough about it. We are not experts in Australian law. We are advised that the Australian provision in regard to the constitution concerns the acquisition by the state of the property. There would be no such requirement here before one would be entitled to receive compensation of some degree.

The nuanced position we would make on the case that might be bought is not so much that it would be a question of rights being taken away. As I understand it, the heading of the Bill provides that the non-use would be considered to be a proper purpose. The non-use of the trademark would be considered to be a proper purpose to keep the trademark alive and on the register. However, the way it would work out with the courts here is that a case would be brought contending legislation was introduced that did not provide properly for the payment of compensation for the deprivation of the right, with the risk that the court might say it is unconstitutional. If I were asked to have an angle on it – I am not an intellectual property lawyer – that would be the one I would tackle in this jurisdiction. However, there are other courts the industry can go to.

On the question as to whether it is likely that proceedings will be brought, the Minister for Health himself said he would be absolutely astounded if the tobacco companies did not bring a case challenging this legislation in this jurisdiction. I would certainly support that view. They will not let this happen without doing anything about it. It would be relatively cheap for them to take on a case here as opposed to the United States or areas with other larger population bases where profits may be significantly higher. The damages and costs here could be significantly lower. These are just factors that are running through my head as I think about this. I am not in a position to advise. I am not sure what other questions arose.

Mr. Ken Murphy: All rights in the Constitution are subject to the common good. Some testing of proportionality is fundamental. A test of proportionality is imported into Irish law from other jurisdictions, particularly European ones and Canada, and the European Court of Human Rights.

There is a very good statement in a decision of a former president of the High Court, Mr. Justice Costello, in Heaney v. Ireland, 1994. It looks to the European Court of Human Rights and Canadian jurisprudence. Mr. Justice Costello said in the course of this judgment that the means chosen must pass the proportionality test, in respect of which he identified three elements. The means must be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations; impair the right as little as possible; and be such that their effects on rights are proportional to the objective. The key issue is that while a forum like this looks to evidence, it is naturally a political forum where opinion has currency also. Opinion would not have currency in court. A court would make a decision based on evidence. Mere assertion would not be sufficient and evidence would have to be required. It is a question of determining the exact evidence. If the Australian experience were being cited in justification for or support of the legislation, the evidence from Australia would have to be capable of being given in such a manner that it could be tested, cross-examined and accepted one way or the other.

Deputy Doherty asked how long it would take for that to occur. I cannot say. It would ultimately be a matter for advice. Neither the current Law Society members nor I are predicting the outcome of any legal challenge. We are not seeking to do so. Clearly, it would be a matter of the evidence and legal arguments made at the time. As the Minister for Health has indicated, he believes there is little doubt there will be a legal challenge. Such a measure, being introduced for the first time in the northern hemisphere, namely, in the European Union, and the consequences if it were to be taken as a precedent elsewhere, would mean the stakes would be very high. We could anticipate a legal challenge. The concern of the Law Society has had is that intellectual property rights and their significance in this debate should not be lost or passed over on the basis of the understandable and overwhelming concern of members of a health committee for health issues. It is natural that this should be the case but it should not submerge the proper consideration of the intellectual property rights issues that would form part of an assessment by a court. As the president said in his opening statement, we in the Law Society were quite concerned that, somehow or other, we were being lumped together with, seen as apologists or Trojan horses for, or regarded as representative of the tobacco industry or tobacco interests. That is not the case. We are simply here because we believe intellectual property law is important, including for Ireland Inc. The Law Society’s submission would be pretty similar if the proposal were on foodstuffs, alcohol or some other measure.
It is not specific to tobacco. I may not have answered all of the questions that were asked. I will be happy to come in again.

Senator Colm Burke: Information on Colm Burke Zoom on Colm Burke I want to come back to the question of clear evidence. If there is clear evidence that a product is causing death, how can the manufacturers of that product acquire a right? That question needs to be dealt with from a legal point of view. I do not understand how such a company can acquire a right. All the evidence confirms that this product is causing death.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I thank the witnesses for clarifying that the members of the committee are appointed on an annual basis. I asked a specific question about a member of the committee who has worked for P.J. Carroll and Company Limited. Can the witnesses tell me how he became a member of the committee? Does his previous role concern them? They suggested in their submission that Ireland is proposing to extinguish intellectual property rights. I have put it to them that I feel we are proposing to limit or restrict such rights in the same way we did when we prohibited billboard advertising and introduced health warnings. I do not believe we are trying to extinguish those rights. I agree with the witnesses that we should look at intellectual property rights. As a committee, we have a role in examining every aspect and angle of this issue. It is great to have the witnesses here. However, I do not agree with the contention that this measure would extinguish intellectual property rights. What aspects of this measure constitute the extinguishing of these rights, when previous initiatives have merely limited or restricted them?

Deputy Mary Mitchell O’Connor: Information on Mary Mitchell O’Connor Zoom on Mary Mitchell O’Connor I hear what the Law Society is saying about the need to protect intellectual property rights. Can the witnesses help this committee by telling us where they would defend from if they were on the other side? Would they defend from the Constitution or from what has happened in Australia? I would like to hear that advice.

Deputy Billy Kelleher: Information on Billy Kelleher Zoom on Billy Kelleher This goes to show that when politicians, barristers, lawyers and solicitors are in the same room, there are several outcomes. I emphasise at the outset that intellectual property and trademark rights are critical to this economy. Of course it is of huge significance for such rights to be defended and vindicated. International software companies have made huge investments in this country. This area is of importance both in terms of inward investment and export. The protection of intellectual property rights is a given.

Would the witnesses not agree that there is an obligation on the State to vindicate the rights of its citizens by protecting their lives? We have constitutional law and we have commercial law. I suppose that is where we have the conflict. Our obligation is to try to ensure we protect the health of our citizens. As responsible politicians, we certainly do not want to usurp or undermine trademarks and intellectual property rights, which are critical components of the commercial life of this country. We must act in a manner that protects the lives of our citizens. The first obligation of every state is to protect the lives of its citizens. Clearly, we have a dichotomy or a debate in that regard. I am quite definite that if we invited the witnesses into another room, or invited them in under another guise, they would have a different view. Let us be honest – that is why they are professionally involved in this business. I am not dismissing that. I am pointing out the reality. I would like the witnesses to provide a little context by referring to this committee’s obligation to try to vindicate the health and life of citizens. That is primarily what this legislation is about – no more and no less. It is certainly not about trying to attack or undermine intellectual property rights.

Vice Chairman: Information on Ciara Conway Zoom on Ciara Conway Two of the questions I asked were not answered. I will refresh the witnesses’ memories. Why has the Law Society tried to come in on this constitutional right rather than the constitutional right we discussed last year in the context of the Protection of Life During Pregnancy Bill? If these companies bring an action against the State, will members of the Law Society represent them?

I would like to set out some of the context to this debate from the perspective of the Joint Committee on Health and Children. Dr. Gietz of John Player & Sons Limited had a great deal to say earlier about intellectual property. He referred to what a ruling like this could do to our reputation abroad in the context of the significant role foreign direct investment plays in Ireland. We are not talking during this session about a benign industry. We are talking about where one in two users die. I may have been somewhat flippant when I said that one in two users of Facebook do not die, but I think it illustrates the point I am making. I am trying to put this debate in context by emphasising that the primary objective of this committee is to protect the health of the Irish public. Perhaps the witnesses can respond to those points.

Mr. Ken Murphy: I will make a point for illustration purposes. I would not like it to be misinterpreted as something I am proposing. The most severe measure the Oireachtas could take with regard to tobacco would be to ban it completely. The reality is that this is a legal product, even if it does have terrible health consequences. Balances are struck by the Oireachtas in terms of what is possible. Of course it has to be subject to what is legally possible. Ireland has very strong property rights in the Constitution. They have not been tested in the context of a measure like that proposed in this instance. I am not seeking to predict the outcome of it when I say it is certainly a concern. I was taken by Deputy Kelleher’s strong support for the maintenance of intellectual property rights. I assure the committee that I am being jocose when I say that purely from the self-interest of the legal profession, we would be encouraging the Oireachtas to enact this legislation. The amount of litigation work that would be made in courts everywhere would be enormous.

I would like to return to the Chairman’s question about the invitation that was made to the society with regard to the Protection of Life During Pregnancy Bill. As we said in our original submission, the Law Society has made approximately 20 submissions on legislation over recent years. We do this all the time across a huge range of areas. In addition, we get individual requests from Government Departments and we make submissions to them. We get letters from Ministers looking for our views. Generally speaking, our views are welcome and largely uncontroversial. It is pretty unique for views expressed by a Law Society committee to be as controversial as these views have been. They were not intended to be controversial. Last year’s Protection of Life During Pregnancy Bill related to an area that is notoriously controversial and very divisive. The society took the view that it could not take a public position on the matter in the absence of an internal debate within the profession, which would probably have been extremely divisive. We had no mandate to take a position one way or another on the underlying issues in that legislation, which are deeply polarising. That was unique, in my experience, because it was the first time the society declined to make a submission when invited to do so. As far as I can recall, it was the only time this happened. It is a unique issue, in many respects. One might not agree with the view we took on the matter at the time.

Deputy Mary Mitchell O’Connor: Information on Mary Mitchell O’Connor Zoom on Mary Mitchell O’Connor I asked about how would a case might be defended.

Mr. Ken Murphy: We could not say that without knowing what evidence would be adduced. I think the actual evidence from Australia, as opposed to the opinion from Australia, would be critical.

Mr. John P. Shaw: It would be a question of timing and of when the case would be brought. Someone asked how long the Supreme Court would take and how long it would take for evidence to be adduced from Australia. That would beg the question from the Supreme Court about how a decision was made in the absence of evidence. That is the flaw in the argument from that point of view. I am not making that argument. If the Supreme Court looks at this, it will not ask how much time one wants to find the evidence, but will ask how one arrived at this decision and with what evidence.

Mr. Ken Murphy: Ultimately, the motivation of the Oireachtas would not be in question. It would be assumed the Oireachtas was motivated by the common good. The real question would relate to whether there is evidence to suggest this measure will actually have the effect claimed for it. That would be balanced against the entitlement to property rights. Those who would bring a case would attempt to show this entitlement had been seriously affected.

Deputy Billy Kelleher: Information on Billy Kelleher Zoom on Billy Kelleher Does Mr. Murphy think it should be referred directly to the Supreme Court?

Mr. Ken Murphy: The question of whether an Article 26 reference is wise always arises. In the case of an Article 26 reference, one tends to get an abstract and slightly academic result. As legal practitioners, we tend to use the word “academic” pejoratively. It is not intended to offend anyone here. One gets a debate like that found in a student debating chamber, as distinct from something that is based on real evidence. The other issue relating to an Article 26 reference is that a measure which is challenged and upheld by the Supreme Court is immune to subsequent challenge. A judgment call always has to be made when deciding whether to make an Article 26 reference.

Deputy Billy Kelleher: Information on Billy Kelleher Zoom on Billy Kelleher If Mr. Murphy was advising this committee, what would he do?
Mr. Ken Murphy: The first thing I would do is review its evidence.

Senator Colm Burke: Information on Colm Burke Zoom on Colm Burke How can someone acquire a right if that product causes death?

Mr. John P. Shaw: Senator Burke compared it to a drug that causes death and argues that it should be taken off the market. If one took it clear off the market, we would probably not be here on an intellectual property law basis. If one said that people are not allowed to smoke and to introduce cigarettes, we would probably be here talking about it with a human rights committee but we would not be talking about intellectual property law. It is the incremental change that requires balancing between the two rights. I have no issue with the contention that the health of the nation takes priority over intellectual property rights but I think the law says that one cannot just railroad over them but must have some balancing exercise between them.

Senator Colm Burke: Information on Colm Burke Zoom on Colm Burke My argument concerns whether one can acquire a right when the product one is selling causes death.

Mr. Ken Murphy: They have the right to market and sell this product. They are allowed to do so by the Oireachtas and governments and states everywhere. It is a legal product.

Vice Chairman: Information on Ciara Conway Zoom on Ciara Conway It is done in a very curtailed way because billboards and advertising in shops are banned. It is very restricted. Deputy Catherine Byrne indicated that she would like to speak. I will then go to Senator van Turnhout.

Deputy Catherine Byrne: Information on Catherine Byrne Zoom on Catherine Byrne I said this morning that every time I come here, I listen and learn. Sitting on this committee is an education. Reading about copyright, one can see that it is all about the design, package, graphics and colour. We are not talking about a designer handbag, pair of runners or tracksuit. I will read a piece from a survey carried out by the Irish Cancer Society because it sums up why we should bring in plain packaging. We are all singing off the same hymn sheet. It is not just the cigarette. It is the packaging. It is the whirls on the package and the colour. They look fabulous and one wants to have them sitting on the table to say that one owns them. That sums it all up for me. This is not about whether people should have the right to market certain things that lead to people’s deaths. That is what it is about for me.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I asked about the membership of the committee. I could go through several members of the committee where I have questions and where I feel there should have been a clearer declaration but I am really concerned about one specific member. Do the speakers have a similar concern? How did he become a member of the committee?

In its submission, the society said that Ireland is proposing to extinguish intellectual property rights. I said to the speakers that we have banned billboard advertising and increased our health warnings so what Ireland is proposing to do is to restrict or limit these rights. I do not agree with the use of the word “extinguish”. How did the speakers come to that conclusion?

Mr. John P. Shaw: I thought I had answered the question about the appointment of the individual member of the committee. I was the president under whose watch he was appointed. I explained the process we went through. I was not aware of his connection with the tobacco industry and I have to say that had I been aware back in September, it would not have stopped me from appointing him to that committee. There is no question regarding his integrity or anything relating to that issue. I would not want that to be an issue here. That committee has 17 members. There are 27 committees in the Law Society so the degree of oversight is a question of whether they have the expertise, are they known to other members and are they considered to be of good standing.

In respect of the second question, I take the Senator’s point regarding the use of the word “extinguish” and the point in respect of what is left relating to the trademark. As I understand it, all that is left of the trademark is this bit that will now be removed from the packaging. If one takes it that this is the case, effectively, the trademark for useful purposes is extinguished. I do not want to get caught up in the word but if one takes away 65% of the package, and they have been stopped from advertising elsewhere under other regulations, and this is all that remains to them, the trademark is effectively redundant. I know it is not legally redundant. I do not know why they have not challenged it previously. It was incremental and perhaps they thought they could live with what was there. The Minister is saying he would be astonished if they did not challenge this one but it does seem that the trademark is effectively gone. There is nothing there to distinguish one from the other.

Senator Jillian van Turnhout: Information on Jillian van Turnhout Zoom on Jillian van Turnhout I believe it is limiting.

Mr. John P. Shaw: I would not disagree with the Senator’s view. It is only a question of degree.

Vice Chairman: Information on Ciara Conway Zoom on Ciara Conway If the tobacco companies bring a challenge against the State, will members of the Law Society represent the tobacco industry?

Mr. John P. Shaw: Members of the Law Society represent everybody in every single case, including people accused of murder and rape.

Deputy Mary Mitchell O’Connor: Information on Mary Mitchell O’Connor Zoom on Mary Mitchell O’Connor Even though the World Health Organization believes in plain packaging?

Mr. Ken Murphy: As a matter of law, the decision will be made by the courts, not by the World Health Organization.

Vice Chairman: Information on Ciara Conway Zoom on Ciara Conway I thank our witnesses for their very informative presentations and for giving up their time to come in here today. It will be very useful as we conclude our deliberations over the coming weeks.

The joint committee adjourned at 2.25 p.m. until 2.30 p.m. on Tuesday, 18 February 2014.