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 Colm 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.