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.