Protection of the Public Interest from Tobacco Lobbying Bill 2013: Second Stage

John Crown (Independent)
I move: “That the Bill be now read a Second Time.”

Cuirim fáilte roimh an Aire. I am delighted to have an opportunity to present this Bill this evening. I am honoured that the Minister has come to the House to deal with this legislation. I am sure the Government’s response to it will be positive. I hope the Protection of the Public Interest from Tobacco Lobbying Bill 2013 will be seen as part of the legislative process that this Oireachtas, led by the Minister, is achieving to curtail the evils of tobacco.

The best part of my job is giving cancer patients good news. Thankfully, due to improvements in treatment I get to give that news more often than I did before. Nothing sounds better than saying “I think you are cured”. The worst part of my job is giving people bad news. All too often, it is the worst news they will ever hear in their lives – the news that they have an incurable fatal illness. Every day in Ireland, five people get the news that they have incurable fatal lung cancer. In 95% of cases, their illness was caused by smoking. The dreadful news that these poor people receive is compounded by the realisation that it was all so unnecessary.

Smoking remains the leading cause of preventable death in Ireland and other western countries. In addition to cancers of the lung, throat, tongue, mouth, oesophagus, pancreas and bladder, it is a major cause of the other two leading causes of death in Ireland – heart disease and stroke. It is also a leading contributor to gangrene and peripheral vascular disease. Emphysema and other forms of chronic lung disease kill 1,500 Irish patients annually and condemn others to a life of misery and curtailed physical function, in which they are fixed to oxygen apparatuses and unable to move.

Tobacco kills approximately 100 times more Irish people annually than illegal drugs. If it was discovered tomorrow, it would surely be illegal. Everyone knows smoking is bad for one. Everyone has heard the message about smoking and cancer. Most smokers want to quit. Is there a quorum in the House, a Chathaoirleach?

Notice taken that 12 Members were not present; House counted and 12 Members being present,

John Crown (Independent)

Why do otherwise rational people continue to smoke when it is contrary to their own self-interest? To put it simply, it is addiction. Tobacco companies must recruit 50 new tobacco addicts daily just to replace the deaths that are caused by their own products. In 80% of cases, these novice smokers are children. Big tobacco will deny the reality that its business plan can be summed up in four words: “addict children to carcinogens”. Big tobacco wants more people to start smoking and wants existing smokers to keep smoking, whereas public health policy is aimed at reducing and ultimately eliminating tobacco use and putting the tobacco industry out of business in the process. For these reasons, the goals of public health and those of big tobacco are fundamentally incompatible. Their relationship must be perpetually adversarial and unremittingly hostile. How else could a responsible Government react to an industry that is responsible for the deaths of thousands of its citizens?

Big tobacco is not and cannot be the Government’s partner in any sort of enterprise. Big tobacco has just one agenda: it wants to sell tobacco. It is incredibly rich and terrifyingly powerful. Its worldwide sales of 350 billion cigarettes translate into profits of €35 billion. It is not surprising that big tobacco does everything in its power to thwart the tobacco control policies of democratic Governments. Historically, its weapons were the denial of health risks and spurious pseudo-research. For many years, and in the face of a crushing weight of evidence, it absurdly contended that smoking does not cause cancer. When an increasingly sophisticated population began to reject big tobacco’s lies, it turned to more subtle weapons, including lobbying, legal intimidation and bribery.

During Ireland’s EU Presidency, the Minister for Health’s innovative pan-European anti-smoking proposals were watered down following intense lobbying of parliamentarians. The New York Times reported recently that American tobacco companies, cognisant of the fact that their traditional markets in western countries are continuing to shrink, are actively attempting to undermine efforts to introduce anti-smoking legislation in developing countries. Uruguay and Namibia have found themselves facing multi-billion euro lawsuits and years of litigation. The reach of big tobacco is such that it has managed to enlist some very strange allies. The US Chamber of Commerce has campaigned against the Minister’s plain packaging laws. It is rumoured that officials from the US Government have expressed displeasure with the Minister’s innovative proposal to introduce plain packaging.

The World Health Organization of the United Nations has passed a directive to provide an appropriately transparent framework for the conduct of meetings between Governments and the industry in situations where such meetings are felt to be unavoidable. Ireland is a signatory. The directive strongly discourages such meetings, stating that there is a fundamental and irreconcilable conflict between the interests of the tobacco industry and those of public policy. It stipulates that where interactions with the tobacco industry are necessary, they should be conducted transparently, preferably in public. Ireland has signed up to this convention, but I fear that it has not always lived up to it.

Senators will recall that the heads of the leading tobacco companies, as represented by the Irish Tobacco Manufacturers Advisory Committee, managed to get a 45-minute private audience with the Taoiseach and the Ministers for Finance and Justice and Equality earlier this year. I refer specifically to Steven Donaldson, Andrew Meagher and John Freda, who are the chiefs of PJ Carroll, John Player and Japan Tobacco International, respectively. The Minister for Health wisely and correctly declined to attend. I commend him for his wisdom in this regard. This meeting was ostensibly an opportunity for these businessmen to inform the Government of their concerns regarding tobacco smuggling. It was described by a spokesman for the Irish Tobacco Manufacturers Advisory Committee as “very positive”. Worryingly, it was reported that other matters were discussed, including the industry’s opposition to the Minister for Health’s proposals to tighten the anti-smoking regulations, for example by banning menthol roll-ups. These issues, rather than the issue of smuggling, are the ones that are close to the industry’s heart and constitute its real agenda.

How did this meddling cartel of drug dealers get access to senior Fine Gael Ministers? Which lobbyists could pull off a stunt like this? The Irish Tobacco Manufacturers Advisory Committee’s public relations activities are handled by Hall Communications and its anti-smuggling campaign is managed by O’Herlihy Communications, which was founded by Bill O’Herlihy. Mr. O’Herlihy, who has extensive Fine Gael connections and who acted as public relations adviser to my personal hero in Irish politics, the late Dr. Garret FitzGerald, also attended this meeting. In two years in Leinster House, I have succeeded in scheduling exactly one 20-minute formal meeting with the Minister for Health to discuss cancer research. I tried to lobby the Minister for Finance to remove VAT from cancer-preventing sunblock in a rushed whispered conversation in the Dáil Visitors’ Gallery. I would kill to get 45 minutes of facetime with the Taoiseach and other senior Ministers.

Given that the Taoiseach and these Ministers are good men who would support tobacco control, how did this meeting happen? The smuggling explanation just does not wash. After all, the principal commercial victims of tobacco smuggling are retailers, not manufacturers.

Smuggling does not hurt big tobacco. Big tobacco likes and benefits from smuggling. How does this happen? In the majority of cases, the smuggled products are the companies’ own products ultimately purchased at full price from them. The purpose of smuggling is not to deny the companies their commercial profit but to deny the Exchequer tax revenue. Furthermore, the availability of cheap cigarettes sold in an unregulated environment facilitates the recruitment of new under age child and teenage smokers. I would go further. If the Government genuinely thought this meeting was about smuggling, it was duped. I believe this is what happened. There was also likely a degree of social pressure, doing a good turn for a lobbyist who was a loyal party activist in his day.

This legislation, which directly translates into law an international agreement to which we signed up, would have the effect of clarifying any ambiguity over any contacts of this type. It would eliminate the ambiguity which facilitated the Government meeting the Irish Tobacco Manufacturers’ Advisory Committee. It is simple and should be supported. This Bill does not ban meetings. That would be unconstitutional but the process is made transparent. There must be two weeks’ notice and the attendees must be known in advance. The Minister for Health must nominate the chairperson of the meeting. The agenda of the meeting must be published in advance. Any deviation results in prosecution, which can result in fines and imprisonment. How could anyone oppose this Bill?

In this context, what is the track record of this Government, which has a campaigning and committed anti-tobacco Minister for Health, in respect of anti-smoking legislation? If this Bill is rejected, we will have a very strange league table for tobacco legislation in the lifetime of this Government by the end of 2013. After nearly three years in office, the Fine Gael-Labour coalition will have had the opportunity to deal with four pieces of tobacco control legislation. Two of these have been Private Members’ Bills which I have introduced, one of which is today’s Bill. The other Bill would have banned smoking in cars with children and was supported by Senators van Turnhout and Daly. I should mention that Senators Barrett and van Turnhout are my supporters and I am grateful to them for their support for today’s Bill. The other two Bills have been Government Bills, only one of which has been passed into law. I understand how this has happened. It has not been the Minister’s wish. I suspect he has done it through clenched teeth and with seething rage. The only Bill that has been passed has been one that has made it easier to sell cheap tobacco to kids. It was forced on us by the European authorities and the commercial authorities. Shame on them for making us do this.

I completely support the Minister’s other Bill, which would introduce mandatory plain packaging with explicit health warnings. It is still working its way through the bureaucracy but it will not be law until 2014 at the earliest. Let us take a minute to talk about the proposal on smoking in cars containing children. That Bill was kindly agreed to by the Minister a year and a half ago and it is still terminally glued up in the bureaucracy. For that reason, I and Senators Daly and van Turnhout will be advancing it again tomorrow on Committee Stage.

The Minister has the opportunity to cement Ireland’s reputation as an innovative country in tobacco control. The message from this Chamber will go out tonight because the forces of evil are looking at Ireland. We have had spurious pseudo-libertarian and pseudo-civil rights groups setting up meetings in this country and pressure is mounting from all sides from the lobbying groups because they realise that if we bring in really draconian and restrictive legislation, others will follow our precedent. I have a business card here. The name on it is Cheryl Cullen, who is corporate affairs manager at JTI Ireland Limited whose headquarters are on the Old Belgard Road in Tallaght. The phone number and e-mail address are available. This was found in the Seanad Chamber.

I commend this Bill. I earnestly implore the Minster to accept it. We have been very careful in framing the Bill legally to ensure it is within our Constitution. It is nothing we have not signed up to. All it does is enforce regulation and transparency in an area where very dark – literally smoke-filled room – activities take place.

Sean Barrett (Independent)

I welcome the Minister. He is one of the most regular Ministers attending here. We have all shared his dedication to the cause of preventing the damage tobacco does to society. He wishes to make Ireland tobacco free by 2025 and launched his strategy document on that in October.

The Bill before us incorporates a United Nations convention on tobacco control into Irish law. I worry about lobbying but I worry about tobacco even more. In the opinion of the Surgeon General in the US in 1964, “cigarette smoking is a health hazard of sufficient importance in the United States to warrant appropriate remedial action”. The Surgeon General’s report of 1964 was endorsed in a 1992 court case because the tobacco industry had not lived up to what was expected after a Supreme Court judgement in 1964 and still sold the products in the intervening 28 years and did not disclose the evil that was in those products about which the Minister has told us in case anyone was naive enough to think they were smoking a plant that grew in their garden. It was toxic, addictive and seriously damaging to people’s health and that is why people in the US succeeded in court actions against tobacco companies for the damage they had done.

What is public opinion on this issue? The Minister enquired for us in chapter 6 of Tobacco Free Ireland, which was issued by the Department of Health in October 2013. A total of 82% of people supported banning flavours that make tobacco products more attractive, 90% support the introduction of pictorial health warnings on tobacco products and 73% are in favour of introducing a fee on manufacturers to cover the health costs of tobacco. If we are concerned about what our constituents might think about this activity, the Minister has answered those questions in the document. A public health foundation study, entitled Public health foundations and the tobacco industry: lessons from Minnesota, stated that:

It is not possible to avoid attacks by the tobacco industry or its political allies. Like programmes administered by government agencies, tobacco control foundations must be prepared for these attacks, including a proactive plan to educate the public about the principles of community based tobacco control. Public health advocates also need to be willing to take prompt action to defend these programmes and hold public officials who attack tobacco control programmes accountable for their actions.

There is a record of bribery in the US legislature. One econometric study stated that Democrats who voted for less control on smoking were paid an average of $40,000. Republicans were easier – they were paid an average of $20,000. We know from the European example in the very recent past that serious lobbying took place at the European Parliament and delayed from September to October measures to control tobacco products. Even then, they were watered down. We have mass lobbying by tobacco companies as MEPs vote on anti-smoking legislation. That was on 7 October. Europe has a bad track record on tobacco, in particular lobbying by the Poles and Czechs to protect their indigenous tobacco industries. As the Minister knows, the industry has gone to Third World countries to recruit new people, as campaigns by the Minister and Senator Crown persuade people in this part of this world not to smoke anymore. Ireland aims to be tobacco free by 2025. An article in The Independent on 8 October, entitled “EU’s ‘shame’ as it caves in to lobbying by tobacco giants over the sale and advertising of cigarettes”, read:

They also backed away from proposals to increase the size of health warnings on cigarette packs to cover 75 per cent of the box – agreeing instead to the 65 per cent figure suggested by the industry. The current requirement for health warnings is for 30 per cent minimum coverage on one side and 40 per cent on the other. The moves will be seen as a victory for the tobacco industry, which has spent more than €1m lobbying MEPs to reject the more stringent safety proposals agreed by European governments. The differences must now be resolved before May 2014, when there are new MEP elections. There will be intense lobbying in Europe ahead of the key vote.

 

This is a toxic and damaging product as the Minister has told us so eloquently on many occasions. The tobacco industry engages in political lobbying. The Government is concerned about all kinds of lobbying and this is welcome because it has been an unattractive feature of Irish politics. I refer to the strange circumstances of the resignation of the Maltese Commissioner who was dealing with this area and it is rumoured that the tobacco industry lobbied against him. The question of freedom of speech is an old refrain with regard to lobbying. One cannot shout, “Fire” in a crowded theatre, so speech is curtailed. We have to know what these firms are doing. There is a very strong countervailing case to be made. We should not give people access to Parliament to make their case without the opportunity to make a rebuttal.

The right of free speech is an individual right but these are corporate actors and they do not act as individuals. They have engaged in this activity for 50 years since the report of the US Surgeon General exposed the damage done by tobacco. It is not a normal product. I ask the Minister to bear those factors in mind and to support Senator Crown’s Bill. This is an activity which seriously damages people. The industry engages in serious lobbying and it is in the public interest that we should make a stand against it.

Colm Burke (Fine Gael)

I welcome the Minister to the House. I thank Senator Crown for his work in presenting this Bill. This subject needs to be discussed. I have carefully studied the Bill as presented and I do not think it would stand up to constitutional challenge. This must be the test for any legislation coming before the House. The tobacco industry is a very powerful lobby group and it would not miss the opportunity to take such a challenge should this Bill be enacted.

David Norris (Independent)

Can Senator Burke give us the grounds for his opinion?

Paddy Burke (Cathaoirleach of Seanad; Fine Gael)

Senator Burke, without interruption.

Colm Burke (Fine Gael)

On 30 April the Government approved the drafting of the lobbying Bill 2013. It is appropriate to examine the issue of lobbying. The objective of the lobbying Bill is to introduce a register of lobbyists, to place on the register information on the identity of those communicating on specific policy, legislative matters or prospective decisions with designated public officials or officeholders in the public domain, as well as providing a framework for holding those engaged in lobbying accountable for the manner in which they conduct the activity. This will allow the wider public to reach informed evidence-based judgment about the extent to which different interest groups are able to access and perhaps influence decision-making. It will allow for a code of practice for lobbyists to be introduced and provide for restrictions and conditions to be placed on certain designated public officials and officeholders when taking up employment involving lobbying which may involve a conflict of interest with their previous public service role. Head four of the Bill provides for the definition of lobbying and the exemptions to the regulatory requirements set out in the Bill. It defines the communications which constitute lobbying and those that are excluded. It provides that the register can issue guidelines on indirect lobbying. It also determines that normal citizen interaction with public representatives in private and non-commercial capacities or micro-enterprises acting in a commercial capacity will not be included in the register unless the communication is in respect of land rezoning or development. This head of the Bill establishes that public bodies—–

David Norris (Independent)

On a point of order. Without being rude to the other Senator Burke, I ask why is he talking about a different Bill.

Colm Burke (Fine Gael)

I am explaining that the Government is setting out clear guidelines on lobbying—–

David Norris (Independent)

That Bill is not before the House.

Paddy Burke (Cathaoirleach of Seanad; Fine Gael)

Senator Burke has six minutes and he should continue.

Colm Burke (Fine Gael)

The lobbying Bill establishes that public bodies will publish on their websites an up-to-date list of the name and grade of its designated public officials and officeholders. The Bill sets out the Government’s policy on the regulation of lobbying. It does not prevent lobbying but rather it provides clear guidelines for its management. The Government’s intention is clear. The heads of the Bill have been published and there is a timeframe for dealing with the Bill. The public service reform programme published on 17 November 2011 referred to the establishment of a statutory register of lobbyists.

Any legislation must be examined to ensure it is in accordance with the Constitution. In my view, this Bill being debated today is not in accordance with the current constitutional position. This is the reason I oppose the Bill. I agree we need to debate the issue of tobacco use and also identify the extent and power of the tobacco lobby. This week I was lobbied about the business of the health committee which will deal with this issue in the new year, including the proposal to introduce plain packaging for tobacco products. Submissions will be accepted from those working in the health sector. The committee has decided that the tobacco industry will be permitted to make a submission which will afford the committee members the opportunity to cross-examine the representatives of the industry. This will highlight that the industry’s arguments about the protection of jobs do not stand up in real terms when the overall cost to the State of cancer care is taken into account. Senator Crown has correctly stated that the biggest contributing factor in cancer is tobacco smoking. The Government has explained the long-term plan for dealing with the sale and distribution of tobacco products. This Bill does not contribute to the long-term plan. We need to be realistic that the tobacco industry is contributing to health problems in this country but we need to deal with it in a manner that does not present a constitutional challenge. I do not believe this Bill will assist the programme for dealing with this issue.

Paschal Mooney (Fianna Fail)

I welcome the Minister. I applaud my friend and colleague, Senator Crown, on his initiative and on his continuing efforts to thwart the multifaceted efforts of the tobacco industry to deny that this is a health issue. Senator Crown, who is working at the heart of this tragedy, referred to statistics. I have some statistics of my own which I hope are complementary to his. Fourteen people died yesterday because of smoking; another 14 will die today for the same reason. Tomorrow, another 14 will die, and so it goes on.

This Bill strictly limits the possible interactions which may occur between public officials, any member of the Government, their employees or advisers and members of the tobacco industry, their professional agents or the people they fund. Offences will be prosecuted by the Garda Síochána. The directors of bodies corporate will be held accountable for the actions of their organisations.

The background to this Bill is the World Health Organization framework convention on tobacco control, the first treaty negotiated under the auspices of the WHO. It was developed in response to the globalisation of the tobacco epidemic. Other factors such as global marketing, transnational tobacco advertising, promotion and sponsorship and the international movement of contraband and counterfeit cigarettes have also contributed to the explosive increase in tobacco use.

The treaty, which is now closed for signature, had 168 signatories, including the European Community which makes it one of the most widely embraced treaties in UN history. The convention entered into force in February 2005, just 90 days after it had been acceded to, ratified, accepted or approved by 40 States, an unprecedented development in the history of the UN treaties. It shows that the vast majority of countries want to do something serious about the tobacco epidemic.

In this country the tobacco industry cost the State €1 billion more in health costs than the Exchequer collects in taxes annually. I repeat, it costs the State €1 billion more in health care costs than the Exchequer collects in taxes annually. In Ireland the tobacco industry must attract 50 new smokers a day to replace those who die or quit. Most of these are children who go on to be lifetime smokers and half of whom will later die from their addiction.

It is indisputable that there is a fundamental and reconcilable conflict between the tobacco industry’s interests and public health policy interests. The Irish Cancer Society tells us that the tobacco industry is trying everything it can to derail efforts designed to stop Irish people dying from smoking. The tobacco industry has been so successful at marketing its product to young people here that children start smoking at a younger age than in any other country in Europe.

Five months after his meeting with big tobacco players, the Minister for Finance imposed a derisory 10 cent increase on the price of a packet of 20 cigarettes. However, in the same budget he made health insurance more expensive. Increasing the price of cigarettes is one of the most effective ways to encourage people to quit but it is unlikely that many smokers will consider a 10 cent increase to be a deterrent. There must be concern that such a pathetic increase in tobacco tax was driven by big tobacco’s argument that high prices lead to smuggling. As Senator Crown pointed out, smuggling is not the result of high prices. Some countries where legal cigarettes are low in price also have a very high smuggling rate.

What about the tobacco lobby itself? Senator Barrett made reference to the voting and intensive efforts surrounding the vote on 8 October that came about as a result of the initiatives put forward by the Minister present, as President of Council, in the first half of this year. An Irish official, on the Friday before the vote, briefed journalists on condition of anonymity. He said:

There is an unprecedentedly intense lobbying campaign from the industry going on inside the European Parliament with the express intention of trying to frustrate this legislation. This is completely on a scale way beyond lobbying that normally goes on.

He said officials had been surprised to discover that cigarette manufacturers and their lobbyists had knowledge of precise elements of the law barely 24 hours after they were agreed behind closed doors. He continued: “The level of lobbying at the moment exceeds any campaign that has gone on in the parliament in recent years”. The aim of the legislation is to combat smoking among the young and cut down on the estimated 700,000 EU citizens who die of tobacco-related causes each year. In an unusual move, of which the Minister was part of, a joint statement was issued on the same Friday that urged the European Parliament to begin negotiating with EU governments on the legislation as quickly as possible in order to finalise the law by the end of the year. 

I shall give an indication of just how strong and powerful the tobacco lobby is in the United Stated. In 2010, which is the last year I could find figures for, the tobacco industry spent a whopping $16.6 million on lobbyists to represent the industry to Congress. In Alberta, more than 20 people, including several former government staffers, are registered in the Province of Alberta as official lobbyists for tobacco companies or affiliated organisations. At least half of the registrations have been made within the past ten months after the US Government announced that it was working on new legislation.

In the US, the tobacco industry’s success at winning from Congress what it wanted while still providing law makers with an opportunity to appear to be all in favour of health was a brilliant stroke. The industry brought it off because the tobacco lobby employed an unusually skilled and well-organised strategy; because it hired some of the best legal brains and best-connected people in Washington to help with the fight; and because it successfully grafted onto its built-in congressional strength from tobacco-producing states a sufficient number of congressmen to whom the issue was not surprisingly one of health, or even of the tobacco industry, but one of curbing the powers of regulatory agencies. In other words, they decided to go after big government and to forget about all the people who are dying as a result of smoking. They managed to succeed in throwing a heavy smokescreen around the health issue.

If ever there was a need to ensure accountability and transparency in the relationship, that inevitably arises between any outside body and government, it has to be the one between the insidious tobacco industry and Government at the highest level in this country. It is for that reason I applaud and, on behalf of my party, commend the Bill to the House.

John Gilroy (Labour)

I welcome the Minister to the House. Nobody here can deny or argue with the fact that the Minister for Health has done more to restrict and temporarily restrict tobacco products than any of his predecessors. All of the combined efforts by his predecessors do not amount to the amount he has achieved in the area.

The Bill attempts to address an issue that nobody here can have difficulty with, that is ways to reduce or eliminate the harmful effects of tobacco. As Members have said here during a previous debate, the tobacco industry is the only industry that is required to find new customers because it kills half of its old customers. That is a striking comment to make.

As legislators we must examine the Bill and we are confined to doing so. Senator Crown has eloquently outlined the harms and dangers associated with tobacco products which I agree with and acknowledge. However, we are still constrained to dealing with the legislation that is directly before us.

I have difficulty in accepting the Private Members’ Bill. I hope that Senator Crown does not mind me saying that the Bill has been constructed in a way that I find unacceptable. I shall talk about that in detail in a moment.

The Bill seeks to codify in Irish law the requirements of the United Nations framework convention on tobacco control. I have read the Bill in great detail. One section recognises the need to be alert to any efforts by the tobacco industry to undermine or subvert tobacco control efforts and the need to be informed of activities of the tobacco industry that have a negative impact on tobacco control efforts. Section 10 deals with tobacco advertising and promotion. Apart from this I cannot see how the Bill relates to anything contained in the 45-page tobacco control framework or codifies it into Irish law. There are elements of the Bill that work around certain parts of the tobacco control framework but they do not address, in the Bill, what it purports to do.

Let us examine the legislation in a little more detail. In section 1, the interpretation section, the definition of an official is clearly laid out which is right that it should be. However, section 2(1) to (5), inclusive, seem to add a level of ambiguity by referring to “a person”. They do not distinguish whether the official referred to in the interpretation is the person referred to in section 2. This is a technical matter. We are legislators and it is necessary to deal with the legislation that is before us. That is the first part of the Bill that I found confusing.

Section 2(3), (4) and (5) use the words “present at a meeting”. At first glance that seems an uncontroversial statement but no interpretation has been offered on what the phrase means. We all know of precedence and that present at a meeting can mean active participation or just in attendance. The phrase has a different interpretation according to other standing orders, rules and laws. I have given two examples of how the construction of the Bill has failed to be clear.

Senator Colm Burke referred to the power of the tobacco industry and how quickly it lights on ambiguity in the law to give itself a day in court. Even if it loses it hardly matters because its resources are such that it is viewed as another way of promoting its product.

Subsections 2(1) to (9) lay out the offences within the Bill, yet subsection 2(12) states: “A person guilty of an offence under this act shall be liable on summary conviction to a fine not exceeding €30,000, or to imprisonment for a term not exceeding 6 months,”. There is a difficulty in that subsection because, for example, a junior clerk who takes minutes at the meeting incurs the same penalty as a senior official who deliberately goes about subverting the provisions of the Bill. That cannot by any means be accepted in a Bill.

The construction of the Bill precludes my support. I spent most of today in contact with my party members to find a way to support this Bill if its construction allowed us do so. Senator Burke pointed out its possible unconstitutionality. That is a problem. All things considered, I support the thrust of the Bill. At the risk of being too colloquial, it is over-egging it a bit to say that it is trying to codify in Irish law the provisions of the framework because I cannot see instances where the sections relate to Irish law. Control of lobbying must be welcomed and lauded but the provisions of this Bill preclude me and the Labour Party from supporting it.

Jillian van Turnhout (Independent)

I welcome the Minister to the House and welcome his commitment to this issue, in particular his aim to make Ireland tobacco free by 2025. A few weeks ago, the Minister said that we have a duty to our children and that the tobacco industry was terrified by the move to plain packaging because it knows that it will make an impact. I support the Bill that Senators Crown and Barrett have put forward because it involves a principle. Over the past few days in this House we discussed a Bill that had been through the Dáil but to which the Government tabled numerous amendments. The idea that we cannot allow this Bill to go to Committee Stage is highly questionable. This is a matter of our voting on a principle. I can pick up any Bill and show where I have difficulties. This is a clear principle.

Ireland ratified, and was a party to, the World Health Organization, WHO, Framework Convention on Tobacco Control. I refer to the guidelines for implementation produced by the WHO, according to which the framework convention recognises that parties, of which Ireland is one, “need to be alert to any efforts by the tobacco industry to undermine or subvert tobacco control efforts and the need to be informed of activities of the tobacco industry that have a negative impact on tobacco control efforts”. If Members of this House or the other House, or officials, have meetings behind closed doors there is no way that people can be informed of the activities of the tobacco industry.

Under Article 5.3 of the convention, “in setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law”. That is what we are trying to do with this Bill, namely, to ensure that it is in our national law. We have ratified the framework convention and have been told to limit interactions with the tobacco industry to the extent strictly necessary to regulate the industry and tobacco products effectively. Any of these interactions need to be as public and transparent as possible.

We are all very aware of the reach and influence of the tobacco industry. Anyone who is a member of the Oireachtas Joint Committee on Health and Children knows the type of organisations, individuals and companies from which we have received correspondence. It takes very little research to discover the funding behind them from the tobacco industry. The front of house might look quite clean and respectable but with very little probing one can see the industry’s insidious funding.

Suzanne Lynch wrote recently in The Irish Times about how fans of the cult TV series “Mad Men”, which shows the murky world of tobacco lobbying, are familiar with Don Draper and his team of advertising executives who make their way in the cut-throat world of 1960s advertising and are bolstered by the patronage of their top tobacco client. When one watches that series one realises that the hard-drinking culture and casual sexism of the 1960s have all gone but the practice of tobacco lobbying is alive and well. We have not made a dint in it. The reason behind this legislation is to send out a clear message that we will not accept tobacco lobbying.

Senator Mooney spoke about the EU regulations that were being discussed. The Minister was on the other side of the debate and defended it too. Documents obtained by The Observer show that Philip Morris International employed 161 people to combat the EU tobacco products directive and spent €1.25 million lobbying, with lunches, dinners, etc., to influence Members of the European Parliament. It was one of the darkest days of tobacco lobbying. It is insidious and we need to ensure that we have a clear framework.

This could be done through ethics legislation. I was very surprised when I became a Member of this House that I did not receive a clear outline of the fact that we have signed up to, and ratified, the WHO convention. The obligation is on us as parliamentarians to implement it. Is it clearly outlined in the books given to Ministers when they are appointed? We need to ensure that there are no meetings behind closed doors. Oireachtas Members have told me that they have received representations directly from the tobacco industry and some have had meetings with it. Is that okay? I believe that goes against the framework convention. How are they to know that, unless we put it into law and make it absolutely clear so that we all know this industry is insidious?

We are trying to work on public health issues. We do not need the heavily financed, insidious tobacco industry interfering in our work on behalf of the people of Ireland, and particularly targeting children and damaging children’s health. People start smoking here at an earlier age than anywhere else in Europe. The Minister is driving a measure through to introduce plain packaging. The tobacco industry at EU level is focusing on Ireland. It will put all its resources in here because it needs to block this move. If it succeeds here the measure will not filter through to the whole of the EU. We are the focus of huge might and power. I could find ways to change or amend this Bill. That is what Committee Stage is for. We should vote tonight on the principle and I ask Members to do that.

James Reilly (Minister, Department of Health; Dublin North, Fine Gael)

I thank Senator Crown for raising this issue. I am always thankful for any opportunity to talk about tobacco and the harm that it causes in our society. I specifically thank Senator Crown for all the work he does on the protection of public health from the harms of tobacco. He is a strong advocate for the elimination of smoking related diseases and deaths in this country. He does, after all, spend most of his professional life dealing with the consequences of tobacco smoking. He has been a public and strong voice against the tobacco industry and its influence on our health and our policies.

I recognise and acknowledge the principles behind this Bill. The World Health Organization has indicated something we already know – that there is a large body of evidence demonstrating that the tobacco industry uses a wide range of tactics to interfere with tobacco control.

These tactics include direct and indirect political lobbying, which is the topic of the Private Members’ Bill today.

I have experienced at first hand the intense tobacco industry lobbying in Europe to which Senator van Turnout alludes, most particularly during Ireland’s recent EU Presidency. The revision of the tobacco products directive was the main health related priority for Ireland during our Presidency, and I am very proud of the great progress we made while chairing the negotiations. I agree with Senator van Turnhout about Philip Morris and its 161 lobbyists for 700 MEPs, and that is before one counts the lobbyists that British American Tobacco and Japan Tobacco put into the field.

Tobacco lobbying made our task very difficult, but none the less I am delighted to hear that agreement has been reached on the revised directive. I put on record my congratulations to all those involved, particularly the European Parliament, the Commission and the Lithuanian Presidency. I must make specific mention of Commissioner Tonio Borg, who has worked tirelessly on progressing this directive since his appointment. While I understand that compromises had to be made, the directive is important legislation in the task of protecting people from the harm of tobacco. It was agreed despite the heavy lobbying of the tobacco industry. The announcement of the agreement this morning has made this a very good day for the future health of our children and is probably the best Christmas present we could ever give them. Having just come into the job, Commissioner Borg found himself subject to lobbying by me, because I was deeply concerned that the previous Commissioner had been unseated in a manner which left many question marks, fear and a sense that the tobacco industry might be at work behind the scenes.

Let us look at some of the other tactics the tobacco industry uses. A report published by the World Health Organization describes in detail the methods used by the industry to “block, nullify, modify or delay pending legislation”. These strategies include the following: subverting the legislation and exploiting legislative loopholes; challenging and stretching Government timetables for implementing laws; attempting to bribe legislators, as Senator Barrett mentioned; gaining favour by financing Government initiatives on other health issues; shaping opinion by manipulating the media and the public; undermining public confidence on the validity of research showing the dangers of smoking and second-hand smoke; and defending trade benefits at the expense of health. Well beyond that, the industry uses delaying tactics by incorporating thousands of individuals to lodge complaints and objections, which ties up departments and the relevant legislatures in answering all of these. Every year the industry delays the directive and delays our initiatives, it makes a few billion more. As has been pointed out, whatever we take in taxes from that industry costs us much more in terms of what we have to spend on health, but the real cost is to the health and well-being of our people.

Senator Crown raised the issue of letters from other jurisdictions and their public representatives. I have seen those letters. Let me reiterate the comments I made at the health committee some weeks back. This nation determines its future. Our people – us – and no one else, will determine our policy. We will not be intimidated and I can guarantee that this Minister will not be intimidated by the tobacco industry or any of its agents, elected or otherwise. We must protect our children.

I have been asked not to call the tobacco industry “evil” but how else can I describe an industry that seeks to entrap our children and to have them addicted before they reach the age of 18 so they cannot make the decision which they surely would make otherwise? Research shows that one in every two children who try smoking take it up, and one in every two of those who smoke regularly die prematurely – at least ten years early on average – from a tobacco related illness. That is the death sentence from which we are trying to protect our children. I have made it clear that stamping out smoking is an issue close to my heart. I have said many times that my priority, while not forgetting current smokers, is to prevent children from starting to smoke. It is damning, in my view, that a European study shows that, as was pointed out, Ireland has the lowest age of children starting to smoke among all the EU member states. Despite this, thankfully, the prevalence of children smoking is falling. The majority of smokers become addicted in their childhood and teenage years. Almost four out of every five – 78% – started to smoke before the age of 18 years. It is clear it is children the industry is recruiting to replace the smokers who have died or quit.

In October this year, I launched Ireland’s latest policy on smoking, Tobacco Free Ireland. It is the first policy document to be launched under the Healthy Ireland framework. Lifestyle trends and inequalities in health outcomes are leading us towards a dangerously unhealthy and unaffordable future. Healthy Ireland is a Government framework which sets out a vision that will improve the health and well-being of all the population of Ireland over the next 12 years. It puts forward a whole-of-society approach and outlines new arrangements to ensure more effective co-operation to achieve better outcomes for all. There is a new HSE directorate on health and well-being. As I continually point out, prevention is better than cure. I often feel I am the Minister for ill health because all we ever talk about is disease instead of prevention. We must stop paying lip service to prevention and pay for it.

The main aim of Tobacco Free Ireland is to make Ireland tobacco free, that is, to have a smoking rate of less than 5% of the population by 2025. The strategy targets the protection of children in particular and the denormalisation of smoking. Everybody in this country finds is extraordinary when we are abroad to see people smoking in a restaurant, a pub or an office. Tobacco Free Ireland builds on many successful past initiatives. The ground-breaking workplace smoking ban in 2004 had a huge impact and many other worthwhile, and effective measures have been introduced in recent years, including the graphic images on packs. Most recently, Government approval has been received for the publication of the general scheme of a new public health (standardised packaging of tobacco) Bill 2013 and to proceed with the drafting of the legislation. I am convinced this legislation will make a significant contribution to our efforts to reduce tobacco consumption.

The strongly negative reaction of the industry to our proposals has only confirmed my views. This industry invests vast sums of money in developing its packaging based on market research. We have seen the advertisements on television, where young children are playing with nice shiny cigarette packets that make them feel good and look nice. The Irish Cancer Society repeated that study and demonstrated the same effect, and then produced the new plain packages. I had meant to bring some with me but had to race from a meeting to be here.

David Norris (Independent)

The Minister had them during the previous debate.

James Reilly (Minister, Department of Health; Dublin North, Fine Gael)

They recoil at the sight of the gangrenous foot or the wasted man who is dying from lung cancer, and they ask why anyone would ever smoke. That is the difference between reality and advertising. Advertising seeks to ensnare and entrap our children. The reality, our children are wise enough to know, is something to be avoided.

The industry argues that the main reason it opposes standardised packaging is that packs will be easier to counterfeit and illicit trade will increase. My colleagues in the Revenue Commissioners have poured cold water on this, stating that the tax stamp is the key way to determine whether something is legal or illegal. Let us think about this. If plain packs are used in this country and other countries are still producing shiny packs, it would be very easy to spot what is contraband. In any event, 90% of contraband is through illegal imports and only 10% is counterfeit. There is a theory the industry is afraid of standardised packaging because there will be no perceived difference between their premium, more expensive brands and their cheaper brands. As a result, their profits will reduce.

While a legal challenge to the proposed legislation cannot be ruled out, and in fact I would be astonished if there was not a legal challenge, I am confident the research available to us demonstrates that standardised packaging will have a positive impact on health and is a proportionate and justified measure. It would be an extraordinary society that would put the intellectual property rights of the tobacco industry, whose product kills one in two of those who use it regularly, above the lives and well-being of our citizens, in particular our children.

I am determined that the threat of legal challenges should not be an obstacle to progressing public health policies. It is one of several methods the tobacco industry has used to stymie and intimidate authorities in other jurisdictions. It has been said to me by counterparts in other countries that they are holding on to see how we get on with these provisions in Ireland. I am pleased that Britain and New Zealand are now moving in the same direction. There are always obstacles – legal, lobbying or otherwise – to any move for change, but we must do what is right, not what is easiest. There is a case to be made for asking all public relations companies to confirm whether their client lists include tobacco companies. In fact, I am issuing an open call from this House to that effect, a call to which I see Senators assent.

We need to remind ourselves why we are debating any issues relating to tobacco. It is because tobacco use is one of the most preventable public health threats, with almost 6 million people dying globally from smoking each year. On a human level, that amounts to 6 million lives needlessly cut short and 6 million families destroyed. On an economic level, it accounts for a substantial section of the health care budget which might be saved or redirected to other areas in need of funding. Governments must take strong action to tackle this global problem.

This Government has ambitious plans and a strong appetite for radical and far-reaching tobacco control measures. However, we cannot support the proposals we are discussing today, for the reasons I will outline. Ireland is a strong supporter of and a party to the World Health Organization’s Framework Convention on Tobacco Control. The convention recognises the issue of tobacco industry interference in Article 5.3:

In setting and implementing their public health policies with respect to tobacco control, Parties shall act to protect these policies from commercial and other vested interests of the tobacco industry in accordance with national law.

To assist countries in implementing this article, the WHO developed guidelines that are comprehensive in nature and set out recommendations on steps to be taken if and when there is interaction with the tobacco industry. The guidelines allow interaction with the industry by governments “when and to the extent strictly necessary to enable them to effectively regulate the tobacco industry and tobacco products.” In these circumstances, the WHO recommends, interactions should be conducted publicly where possible and with disclosure of all relevant records. In 2012 and 2013, I wrote to all Ministers and separately to the Secretaries General of their Departments enclosing the guidelines and requesting adherence thereto in respect of any interactions with the tobacco industry. 

Regarding the meeting to which Senator Crown alluded, the minutes of that meeting are already in the public domain through the freedom of information process and are open to any journalist or anybody else who wishes to see them. Within a couple of weeks of that meeting, the Government of which I am proud to be part offered me unanimous backing to bring in standardised packaging. That was noted around the world and by the tobacco companies in particular. Furthermore, the Taoiseach joined me in writing a letter to MEPs seeking their support for the tobacco directive. This Government is 100% committed to creating a tobacco-free Ireland, protecting our children from tobacco and helping smokers quit their habit. We are not anti-smokers; we are anti-smoking.

One of the recommendations in our Tobacco Free Ireland policy document specifically addresses this area:

Take steps to ensure that all government officials, employees of state agencies and members of any government branch (executive, legislative and judiciary) responsible for setting and implementing tobacco control policies and for protecting those policies against tobacco industry interests are aware of their obligations under Article 5.3 of the WHO FCTC and are aware of the Guidelines developed to assist in meeting these obligations.

In order to implement this recommendation, I am exploring further options on how best to protect public health policy on tobacco from lobbyists. 

A number of legal and constitutional considerations arise in respect of Senator Crown’s proposals. The constitutional issues include serious concerns in regard to freedom of expression, freedom of assembly and freedom of association. Neither I nor my officials are aware of any free world jurisdiction in which criminal offences such as those envisaged in this Bill apply. There are freedoms enshrined in our Constitution which make it unconstitutional for us to implement the Bill. There are also problems of vagueness in respect of the criminal provisions contained therein, which make them likely to be challenged successfully. The offences provisions are, in the view of the Attorney General, unworkable.

I am anxious that Senator Crown and those who support his proposals in this Bill do not misunderstand my position. We are on the same page when it comes to the scourge of tobacco. Indeed, we are leading the charge in Europe in regard to standardised packaging, a provision which I fully expect to be challenged on the grounds of interference with intellectual property rights. As we know, our Constitution is very strong on property rights. Our defence, as the tobacco industry knows, will be that this is a proportionate measure to protect public health. All of the research supports that and any reasonable-minded person will consider it such. On the other hand, introducing legislation such as the Senator has proposed would be very disproportionate and might only serve to undermine our efforts in this area. To criminalise meetings with representatives of the tobacco industry would be untenable. Smoking is not illegal in this country and the tobacco industry is not outlawed, although some people might be of the view that both should be the case. As it stands, we have a Constitution and people have rights under that Constitution.

The Bill also cites An Garda Síochána as the enforcers of this legislation. It is likely that these provisions would prove unenforceable on a practical level, which would have the effect of taking from the credibility of the principles behind the legislation. Such an enforcement obligation might also be considered an ineffective use of Garda resources. While adherence to the previously mentioned guidelines is important, I reiterate that the manufacture and sale of tobacco are not illegal activities. To criminalise persons for engaging with the industry would therefore be excessive and disproportionate, particularly when to do so might damage the credibility of other key policies and legislative tobacco control measures.

The Bill is unnecessary given that the programme for Government contains a commitment to introduce a statutory register of lobbyists and rules concerning the practice of lobbying. The public service reform programme launched by the Minister for Public Expenditure and Reform on 17 November 2011 contains a commitment to prepare legislation to meet this objective. On 30 April this year, the Government approved the drafting of the regulation of lobbying Bill, the purpose of which is to ensure greater openness and transparency on public policy formulation and facilitate valuable input to the decision-making process. The intention is to continue to encourage such participation while ensuring it is done in a fully open manner.

I conclude by reiterating my appreciation of the work Senator Crown has done in bringing forward this legislation and his bona fides in terms of what he is seeking to achieve. His proposals, however, are very problematic. As I said, the regulation of lobbying Bill will assist in the issue he seeks to address. I certainly am not complacent in this matter and will continue to explore actions we can take in line with our Tobacco Free Ireland policy. However, to legislate as set out in this Private Members’ Bill would be unnecessary and inappropriate. For all of the reasons I have outlined, the Government cannot support the legislation. I thank the Senator once again for raising this issue on the floor of the House. The more light we throw on these matters the better. The tobacco industry promotes, advertises and sells a product that kills one in two of those who become addicted to it. That amounts to 5,200 Irish people and 700,000 Europeans every single year. I am determined that we will succeed in tackling this scourge.

David Norris (Independent)

I very much hope this Bill will pass Second Stage. I recall that Senator Burke brought forward a Bill relating to medical insurance which was acceptable almost in its entirety to the Government. I argued on that occasion that it should be allowed to go through Second Stage, after which the Minister could amend it as required.

I recall thinking on that occasion that the Government should let it pass Second Stage and then amend it. That is the way this Parliament should work.

There is no doubt that this is a savage Bill. However, we are dealing with a savage and unscrupulous conspiracy. The Minister, on the first page of his speech, puts forward seven accusations against the industry. They amount to a statement of criminal conspiracy. It is a criminal conspiracy to kill people for profit. This is not about the freedom of the individual or curtailing the rights of citizens, but curtailing the licence of multinational corporations which do not have the welfare of the Irish people or anybody else at heart. The motivation is money.

Let us consider the question of the Constitution. I noted that Senator Colm Burke scrupulously avoided my challenge to him to offer constitutional reasons, in probably the weakest speech he has made because he is always very good. The Minister gave them, but they are quite vague. They include freedom of expression, freedom of assembly and freedom of association, but we must have more than that. We must see the Attorney General’s advice, although attorneys general can be wrong. The over-riding principle of the Constitution is the public good. I cannot quote the exact Article, but it is in the Constitution. I am astonished that no Government has ever found the guts to use it, because I believe it would persuade a court.

There are organisations such as Forest Éireann, which always claims it is not paid by anybody but I do not know whether I can accept that, and there is a great deal of bland blather, like the rubbish that is spouted by Drinkaware about drinking responsibly. How does one smoke responsibly? Does one just not inhale, like President Clinton? I started smoking when I was in short trousers and my age was a single figure. The reason I did it was that it was so bloody glamorous. Everybody did it. Marlene Dietrich and Audrey Hepburn smoked, marvellously glamorous women with their long cigarette holders, as well as all those wonderful masculine hunks, including the Marlboro Man. What the industry did not tell us about the Marlboro Man was that he died a skeletal ruin from the products he advertised.

Not only was it glamorous when I started smoking, but the medical professionals did not know much about it. Some of them actually recommended it to relax people who were nervous. I remember that. The tobacco companies bought and suppressed scientific information and did everything they could to suppress the evidence that smoking was not just addictive, but also lethal. The lobbying in the US is an absolute affront to democracy. Votes were for sale. Other colleagues have said that, but I consider it deeply offensive. The targeting of young people is also deeply offensive. However, at least they have people such as Professor Crown and this Minister, who I believe are singing from the same page, to support them. The Minister should be prepared to let this Bill pass Second Stage, let the industry challenge it and use the public good provision in the Constitution.

There are also the lies about smuggling. Some of the tobacco companies were convicted in New York state of being involved in a conspiracy with the smugglers. I received a glossy document which mentioned nothing about the smoking industry or the tobacco companies, but I found out eventually, after some digging, that it was from those companies. It was circulated to every Member of the House. This type of thing is absolutely disingenuous. They are vengeful people. In America, they deliberately protracted legal cases so the unfortunate people who were suing them would die of the disease which they had caused during the trial. Every rotten, dirty, bullying trick has been used by this international conspiracy. There is the targeting of young people, lies about smuggling and the dumping in Africa and other countries, where people do not have access to the information we have.

In America, one comedian, Bob Newhart, was able to make a laugh of it. I do not know if Members of the House will remember it. The comedian rang up Sir Walter Raleigh and said, “Hello, Walt, what is new?” Walter says, “I have got this great new stuff.” The comedian continues, “It is what, Walt? Leaves? You roll it up in a tube and you what, Walt? Then you put it in your mouth and what? You light it and inhale the smoke.” The comedian bursts out laughing. It is a completely mad thing to do.

Senator Gilroy made some interesting points. An official is a person, but a person is not necessarily an official. That must be taken into account when referring to persons who were present at a meeting. I said it is a savage Bill, but one must be savage with these beasts because they are savages. With regard to the €30,000 fine or imprisonment for six months, nobody in their right mind thinks that a judge would impose that on a secretary. There is still judicial room for manoeuvre.

Martin Conway (Fine Gael)

I agree with Senator Norris that one must be savage when one is dealing with these people. Their behaviour in this country, internationally and in the European Parliament in recent years has been appalling. I commend Senator Crown. We have had discussions on this issue on numerous occasions and I have tabled a number of Adjournment matters regarding the little things I have seen tobacco companies doing in the retail sector.

I commend the Minister. He is a pioneering Minister who is determined to make a tangible difference. We will see that in 2014 with the plain packaging which shows the awful results of smoking cigarettes. Obviously, every Member of the House is singing from the same hymn sheet. We might have different ways of singing, but we are using the same sheet. I hope there will not be a division on this issue. Smoking is a political issue, but it is not and should not be a party political issue. We have a responsibility to the next generation to ensure that we do the right thing. Any fair-minded person would acknowledge that the Minister, when he chaired the Council of Ministers for Health and over the last two years, has taken significant steps to deal with these cigarette companies and the curse of smoking in our society. That is also recognised internationally, so we are starting from a solid base.

I also acknowledge the action of Deputy Micheál Martin. He does not do much very well, but he introduced the smoking ban in pubs and restaurants.

David Cullinane (Sinn Fein)

Hear, hear.

Martin Conway (Fine Gael)

It was a brave action at the time. I recall the publicans saying on the television, “We run Ireland. The meetings are held in our establishments. We say what happens.” Thankfully, Deputy Martin had the courage of his convictions to stand up to that and lead the way. Many countries in Europe followed by imposing a ban on smoking, and rightly so. In fact, if I had my way, there would be no place on the campus of Leinster House where people could smoke. If they wish to smoke, let them go outside the gate. I have no hesitation about saying that. Smoking should be banned on the campuses of all hospitals, inside or outside, and it should also be banned on all university campuses. If one goes in the main gate, whether the university is open or closed, it should be banned.

It breaks my heart to see adults who are over 18 years of age, but who would still be considered young people, buying and smoking cigarettes knowing the consequences. Whatever about when Senator Norris was a young fellow and people did not know the consequences, most intelligent young people who get 400 or 500 points to go to college now know the consequences. I do not know how we can deal with this situation. Perhaps we need the Youth Defence shock jock approach and show images of the effects of cigarettes in primary schools. It will be tough medicine, but it will be for young people’s own good.

In our small shop in County Clare, the cigarette companies have employed insidious efforts to try to peddle their dangerous wares. For example, they introduced 23-cigarette packs for €9.99. The implicit meaning is that the unit cost per cigarette is less than it would be for a 20-cigarette pack. This is appalling. They now have 25-cigarette packs. Behind retailers’ backs, they offer shop staff gift vouchers if they can increase sales of particular brands by certain percentages. Unfortunately, retail is under such pressure that many people do not have the courage of their convictions. Thankfully, some do. Perhaps my determination on this issue is becoming known. I have received veiled threats from third parties because I have not hesitated in saying that smoking should be illegal. I buy into the principle of a smoke-free Ireland by 2025.

I have suggested to colleagues that the Seanad should set up an all-party committee to consider ways to reduce smoking, similar to the direct provision committee set up by Senators Ó Clochartaigh and van Turnhout and others. The House’s passion will inform and assist the Minister in his campaign. Perhaps people are not interested in my idea, but I hope they will be. My office would facilitate the establishment and administration of such a committee if people felt it was a worthwhile endeavour.

Labhrás Ó Murchú (Fianna Fail)

I wish to share two minutes with Senator Healy Eames.

Michael Comiskey (Fine Gael)

Is that agreed? Agreed.

Labhrás Ó Murchú (Fianna Fail)

Cuirim fáilte roimh an Aire. Gabhaim buíochas leis as ucht an méid a chuir sé os ár gcomhair anseo anocht. My opinion is simple – this is not just a good Bill, but also an honest and important one. A few subliminal messages are coming across strongly in this debate. For example, no one has stood up to speak about the civil rights of smokers. This is an important point. Only a vague peripheral mention was made of the economic benefits of tobacco to the Exchequer. If anyone argued this point, it would be akin to snatching a body from a grave, it would be that serious.

One of the most powerful contributions in favour of the Bill was that of the Minister.

Sean Barrett (Independent)

Hear, hear.

Labhrás Ó Murchú (Fianna Fail)

That is worth considering. We must keep reminding ourselves that tobacco is a weapon. Were we discussing the arms trade and the type of legislation, savage or otherwise, we would have no difficulty with introducing legislation on lobbying.

However, it is important that we consider the main argument against the Bill. It echoes another era. It reads:

A number of legal and constitutional considerations arise in respect of Senator Crown’s proposals. The constitutional issues include serious concerns in regard to freedom of expression, freedom of assembly and freedom of association.

I remember exactly the same words coming from the platform that opposed Deputy Martin’s legislation on smoking in public areas. We were told that the sky was going to fall down. Dire threats were made. Supposedly, people would not abide by the law. However, that did not happen. The same can apply in this instance. 

Consider the next paragraph, which reads:

The Bill also cites An Garda Síochána as the enforcers of this legislation. It is likely that these provisions would prove unenforceable on a practical level…

This is interesting. I heard the same argument against Deputy Martin’s legislation. 

Not for one moment do I believe that this Bill is repugnant to the Constitution. Let the strong lobby contest it in the courts. It is the best publicity that we could get for what is one of the most serious matters. We held a referendum on the abolition of the Seanad. Why not have a referendum on people’s lives, particularly those of the young generation, so that we might save them and give them a future? Why are we afraid to be to the fore as legislators? This Bill gives us an opportunity to release ourselves from the shackles of hypocrisy and cosmetic caution. The latter is precisely what is happening in this debate.

Senator Crown is at the coalface. He knows the situation. If Senators had family members on the operating table, or if they themselves were on the table, because of the issues central to this debate, I guarantee that all of them would stand up and fly the colours for this Bill. That is what legislators do – we look after our citizens’ lives and welfare.

Fidelma Healy Eames (Fine Gael)

I am grateful to Senator Ó Murchú for giving me some of his time. The Minister is welcome and I am delighted to hear of his ambition to make Ireland tobacco-free by 2025. It is laudable, but unrealistic unless we do much more. For example, Ireland does not even have a university campus that is smoke free. As the Minister will recall, I wrote to him during Ireland’s European Presidency. Compared with America, Europe has no smoke-free campuses.

While the Minister’s intention is good, I support the Bill for two reasons. First, smoking kills. Second, the Bill gets to the root of the problem. For that, I commend Senator Crown. The 2007 Slán survey showed that smoking was related to 40 diseases. According to the 2008 CSO statistics, 5,200 people die of smoking-related diseases per year. This is 100 people per week. These are epidemic proportions.

I have a particular interest in this issue. In the mid-1990s, I was seconded to Mary Immaculate College in Limerick and the Mid-Western Health Board to design a programme, what is now known as social, personal and health education, SPHE, as a subject for primary and secondary schools with a team of others. One of the programme’s components was smoking cessation and education. When we wrote the programme, it was called Bí Folláin, which means “Fulfil your health potential”. In the course of the work, I learned that smoking thrived on and addicted the poorest, youngest, least educated and weakest. Smoking is a gateway, and illicit, drug for children aged between nine and 13 years. These are primary school pupils. Young girls find it particularly difficult to stop. As Senator Norris stated, there is also peer pressure to be seen as cool. We had to work hard on the question of how to make smoking unattractive to people when they felt good and believed they looked good.

Bad breath had one of the biggest effects on young girls. We also considered the fact that one neat drop of nicotine killed a bird instantly.

In 2000, I visited Romania where the tobacco industry sells cigarettes at low prices to get people addicted. The same approach was used in South America.

I am asking the Minister to let this legislation go through to Committee Stage and, as Senator van Turnhout said, accept the Bill in principle. Let us amend it and make it constitutionally acceptable on Committee Stage, but the Minister should not stop the Bill. Smoking kills so let us not play politics here. The House should unite on this measure. I commend Senator Crown who is working at the coalface and can see the effects. One hundred of our citizens die every week from smoking, so let us act now.

Michael Mullins (Fine Gael)

I support the general thrust of the Bill. Like the Minister, I wish to acknowledge the major contribution that Senator Crown is making to the protection of public health by highlighting the dangerous impact of smoking on the lives of so many people in this country. I also commend the Minister for his proactive approach and his ambitious plan to have the country smoke-free by 2025.

Some years ago, the smoking ban in public places was successfully steered through the Oireachtas by the former Minister for Health, Deputy Martin. When that ban was mooted, people said it could not be done and would not be accepted. However, there is now a growing awareness of the harm being caused to so many people by the tobacco industry.

Senator Healy Eames said that over 5,000 people per annum are losing their lives due to tobacco-related illnesses. In addition, the financial impact on the health service is enormous. Although it is difficult to quantify, it must run into several billions of euro per annum. That money could be used to the benefit of many sections of our society if it was available.

In the first place, the matter should be brought to the Committee on Procedure and Privileges so that, with immediate effect in the new year, smoking on the Leinster House campus should be totally outlawed. That would send out a clear message that those who work here, both legislators and staff, are anti-smoking and wish to do something practical about it. Such a decision would send out a significant signal.

As other speakers have said, any educational campuses around the country that are not yet smoke-free should be encouraged to become so. The management and student unions in those educational institutions should take on board what we are attempting to do here in making Ireland smoke-free by 2025.

I can understand and appreciate that the Minister has a difficulty if he has been advised that the Bill is possibly unconstitutional. I have no doubt, however, that in time we can ensure that the Bill will be constitutional and will therefore contribute significantly to what Senator Crown and all other Members of this House want to achieve, which is a smoke-free Ireland by 2025.

Close friends and relatives of mine have gone to their eternal reward much younger than they should have as a result of tobacco abuse. I am concerned, however, that if we eliminate tobacco totally, hard drugs will replace it. We must also deal with the appalling abuse of alcohol in this country. I hope that over the Christmas period people will be responsible in this regard. We are facing many health challenges, including the abuse of substances both legal and illegal.

As has been rightly said, we have legalised drug taking in this country in the form of tobacco usage. The sooner we grasp this particular nettle the better. I commend Senator Crown for bringing this Bill before the House. He should not be disheartened if the Bill is not accepted, but should continue to do that good work. He has the support of every Member of this House in wanting the Minister to ban smoking by 2025.

David Cullinane (Sinn Fein)

I commend Senator Crown for bringing this Bill before us and using Private Members’ time to raise again the issue of smoking and the tobacco industry generally. He has been a pioneer in this area since his election to Seanad Éireann. I welcome the Minister, Deputy Reilly, to the House. On the Order of Business in recent months, much has been said – not all of it good – about his performance as Minister for Health. On this issue especially, however, we must acknowledge his pioneering work and thank him for it. Tackling smoking is an important issue, as is reducing alcohol consumption. We all support the tobacco control issue and any measures the Minister can take to reduce smoking will be supported by Sinn Féin and, I believe, all Senators in the House. I thank the Minister for his work in this area.

I support the intent of the Bill which attempts to expose and combat the lavishly funded lobbying of public representatives and officials by the tobacco industry. As previous speakers have said, the tobacco industry is responsible for widespread misery in terms of damage to people’s health from smoking. Much has been done in recent years in this area, including advertising restrictions and the smoking ban in public premises, which was introduced by the previous Minister for Health, Deputy Martin. In addition, there is now a greater public awareness of and social responsibility concerning smoking.

However, to use that phrase “A lot done, more to do”, I think we do have much more to do in this respect. Every year, smoking places huge additional costs on our health services and is responsible for deaths from heart and lung disease, severe respiratory problems and other illnesses also. At some point in the new year, we will have a debate on the HSE’s national service plan whereby a lot of money was taken out of health care. As we know, however, we can save money if we can convince people to smoke and drink less. Senator Crown has been very vocal about reducing drinking and has brought sensible proposals both here and at the Joint Committee on Health and Children.

If we can change people’s habits, culture and mindset in these two critical areas, we will be able to save money thus freeing it up for the health services. It would be better spent on providing increased treatment for illnesses.

The lobbying of elected representatives and the Oireachtas generally should be more open, transparent and accountable. I think we would all accept that. The development of the Oireachtas committee system has helped in that regard because we can bring organisations in for consultation. Senator Crown sits on the Joint Committee on Health and Children, of which I was a member for my first two years in the Oireachtas. When the previous Minister of State at the Department of Health, Deputy Shortall, was developing policy in this area, the joint committee invited in all stakeholders, including the drinks industry and those campaigning to reduce the availability of alcohol. That was the way to do it. In that regard the committee system has offered opportunities to consider this and other issues.

While I support the intent of the Bill and in no way question its motivation, I do have concerns about it which are similar to those expressed by Senator Colm Burke. There could be wider implications and unintended consequences if this Bill was passed, including possible constitutional implications.

I believe the way to test this would be for the Minister to allow the Bill to progress to Committee Stage. When members of the Opposition utilise Private Members’ time to bring forward Bills, the Government, rather than knock them back because there is a problem with them, should allow them to progress to Committee Stage where they could be shaped, moulded and improved. That would be a much better way of doing things.

I support the Bill on the basis that if allowed to progress to Committee Stage any issues arising, including constitutional issues, can be addressed. However, I believe the Bill may set a dangerous precedent in terms of whom elected representatives are permitted to meet and what are defined as permitted meetings. If we are to go down this road, there are a number of issues that need to be properly teased out. I strongly believe that allowing the Bill to progress to Committee Stage would provide us with an opportunity to tease out those issues and improve the Bill if necessary. I hope that the Minister will accept the Bill, which can then be improved on Committee Stage.

I again commend Senator Crown and the Minister on their pioneering work in this area. Long may it continue.

Marie Moloney (Labour)

I will be brief. I am a non-smoker. When it was first proposed many years ago that smoking on hospital grounds be banned I spoke against that proposal. However, when I reviewed my decision in the context of the work of hospitals in caring for the health of our people I changed my mind.

I had not intended to contribute to this debate because while I agree with what is proposed in the Bill as I am subject to the party Whip, I will have to vote against it. At the outset of his contribution Senator Crown, an eminent consultant oncologist in Ireland, said he had over the past few years spoken for about 20 minutes to the Minister for Health about this issue and that he would, to use his words, “kill for more time” with the Minister to discuss this issue. I am sure that the Minister and Senator Crown have taken legal advice on this matter. There must be some middle ground on this issue. I ask that the Minister sit down with Senator Crown to thrash out the constitutional issues and try to reach some agreement on this worthwhile legislation. If we could reduce the number of people smoking, we would reduce health costs. What is being collected in terms of taxation on tobacco is being spent on the medical cost of curing or fighting cancer and other pulmonary diseases. I ask that the Minister afford Senator Crown the time he requires, following which, perhaps, the Bill can be reintroduced at a later stage when a middle ground on this issue has been found.

Feargal Quinn (Independent)

Like other speakers, I welcome this Bill introduced by Senator Crown and thank the Minister for his efforts in the battle against smoking. I urge the Minister to accept this Bill, which is, as stated by Senator Cullinane, worthy of progressing to Second Stage following which, if there are difficulties, they can be addressed on Committee Stage.

The Minister in the context of his concerns in regard to the constitutionality of the Bill spoke about the right to freedom of association, expression and assembly. This is not threatened in the Bill in that it provides only that a permitted meeting is a meeting in respect of which the agenda has been published and released to the public not less than two weeks in advance of that meeting. It could not be regarded as unconstitutional that two weeks notice be given of any meeting. It cannot be claimed that this is unconstitutional owing to the right to freedom of association, expression or assembly. If there is doubt about this, let it be discussed and resolved on Committee Stage.

David Norris (Independent)

Hear, hear. No more about the IRA.

Michael Comiskey (Fine Gael)

Senator Quinn without interruption please.

Feargal Quinn (Independent)

This is an important issue. Like many Members, I am a non-smoker. However, as Senator Crown has accused anybody who sells tobacco or alcohol of being a drug dealer, I was a drug dealer for many years in that through my business I sold cigarettes for approximately 45 years. On the other hand, I was aware there were things which those of us in business could do even though we could not stop selling alcohol or tobacco. In 1984, Superquinn was the first supermarket to ban cigarette smoking in store. This was not only for safety reasons but to ensure that customers could shop in a better environment.

The Minister stated earlier that as a result of smoking 5,200 Irish people and 700,000 people in Europe die each year and that Ireland ranks highest in terms of the youngest age at which people take up smoking. These are horrific statistics. Therefore, this debate has been well worthwhile. Early in April this year the Minister introduced the Regulation of Lobbying Bill. However, it has not yet been enacted. Let us ensure that when it becomes law – which I gather will be very soon – this issue is addressed in it. Why does it take so long for legislation to come through? I have introduced a number of Bills in this House, in particular the Construction Contracts Bill. It took three years to get it introduced. I do not understand that. I believe we could progress this particular Bill very quickly. Debates on legislation such as the Regulation of Lobbying Bill should be much more open than on any other piece of legislation so that everybody knows exactly what is proposed.

In the context of the report of Seanad reform in 2004 I proposed in a paper that all lobbying would take place in the open and in this House. I believe that was and is worthy of consideration. I hope that the Regulation of Lobbying Bill will enable this practice. It is one of the steps open to us to take. Senator Crown has in the context of the introduction of this Bill addressed two pet hates of mine, namely, tobacco and behind the scenes lobbying. Let us by all means allow lobbying but let us ensure it is open. Let us by all means allow people who wish to smoke to do so but let us not encourage smoking. I believe the Minister is taking the right steps and that his heart is in the right place. I believe one important step would be acceptance by the Minister of this Bill this evening, which can then be improved upon on Committee Stage. I am sure if this happens it will be legislation of which the Minister, too, will be proud.

Mark Daly (Fianna Fail)

I welcome the Minister to the House. Like others, I thank him for his work on this issue. I also thank my colleague, Senator Crown, on the introduction of this important Bill. The Seanad has engaged in public consultation on the issue of cancer and how lifestyle is causing one third of all cancers. The Minister will be aware of the serious cost in this regard in terms of human lives and the Exchequer.

Like Senator van Turnhout, I support the principle of the Bill. The issue of transparency is relevant this week when one considers the issues that have arisen in relation to NAMA.

Transparency is important in an organisation whose sole motivation is profit and is spending billions to ensure that legislation restricting its activities is not enacted, using every means both legal and, in some cases, illegal in order to achieve its ends to frustrate and delay, as the Minister has pointed out, the enacting of any legislation that would prevent it making far greater profits. Any such organisation should be held up to the highest scrutiny in terms of its transparency and interaction with the Government.

We need to consider what tobacco companies did in Europe in their efforts to frustrate the European Union’s efforts. That is not the most transparent organisation in terms of the number of moving parts in it and the number of people who were being wined and dined in order to prevent and frustrate legislation that would stop the tobacco industry selling more of its products.

As the Minister is aware, that industry is successful in Ireland in marketing to young people because more people take up smoking at a young age here than in any other European country. The Irish Cancer Society advises us that the tobacco industry is trying to derail efforts to stop Irish people from dying from smoking. The more cigarettes the tobacco companies sell, the more people will die, which is of great concern. Some 700,000 people in Europe die each year from tobacco-related illnesses, which is a shocking figure. If that was gun-related crime, obviously we would ban them in the morning. However, this is self-inflicted. Not only is it a cost to the family in terms of the loss of a loved-one but also the cost to the taxpayer in terms of the health care expenditure necessary to look after people who are dying as a result of the sale of tobacco. If we were doing it now, we would not allow it at all and yet it persists and prevails. To a large degree the tobacco industry continues to prevail on the back of spending money on lobbying – not of Deputies and Senators – but in backroom meetings. The purpose of the Bill is to prevent backroom meetings and have them out in public.

We have all been here for debates on Private Members’ Bills. There must be a standard issue text in every Department which is shoved in for such debates stating that it is unconstitutional. It was done in our time so it is the same text.

John Gilroy (Labour)

Fianna Fáil did it.

Mark Daly (Fianna Fail)

I said that.

John Gilroy (Labour)

We put a bit of thought and work into ours.

Mark Daly (Fianna Fail)

It is in every Department. It did not change with the change in Government; it is still there. There is always a reason to change a Bill, which is why we have Committee Stage. Certain Bills introduced this week will be amended on Committee Stage because no Bill on inception is perfect. I am aware of Bills that were written by professional draftspeople, who have worked for all parties, and were accepted by Ministers when they were in opposition. Now that they are in government, the same legislation, written by the same people with the same competencies and who know what is constitutional and what is not, is being rejected not by the Government, but by the permanent government, which does not like change. They do not like this legislation because departmental officials will be scrutinised more than anybody else under this legislation.

Why do we not have whistleblowing legislation? In 2004, the Irish Bank Officials Association asked for whistleblowing legislation. The reply given here was that we needed more comprehensive whistleblowing legislation. Almost ten years later what whistleblowing legislation do we have? We have none because the officials always give their Ministers reasons for not doing something. It is easy to find a reason to do nothing, but 14 people a day in Ireland will continue to die.

John Gilroy (Labour)

Is the Senator suggesting the officials destroyed the country?

Susan O’Keefe (Labour)

The Senator has just accused the Minister of doing nothing.

Michael Comiskey (Fine Gael)

Senator Daly is almost out of time.

Susan O’Keefe (Labour)

That is effectively what he said. Why does he not just try to talk sense?

Mark Daly (Fianna Fail)

The Senators should have listened to the entire speech and take it in its context. The Minister is doing enormous work in this regard. My problem is that every Private Members’ Bill gets shot down for the same reason.

Susan O’Keeffe (Labour)

The Minister is doing great work.

John Crown (Independent)

I ask the Acting Chairman to inform me when my time is up as I am pressing for a vote. I thank the Minister. I do not like to be cast in an adversarial role with him vis-à-vis any tobacco control issue, as I know his heart is absolutely in the right place. I wish to thank two other people tonight. I pay very special thanks to Senator White for coming in tonight – I am very grateful to her. I also acknowledge the work Senator O’Donnell did earlier in highlighting other problems relating to lobbying, which helped to put the lobbying question on the agenda.

The Minister’s arguments against the Bill seem to fall along four main lines: it is unprecedented and we would be the first; we are disproportionately criminalising; it is unconstitutional; and he plans to introduce similar reforms anyway. Being first is good. Prior to 1964 no government had ever stated as government policy that smoking caused cancer or acknowledged a link. The US Surgeon General was the first person to do so in 1964; he was not the last. In 2004, Deputy Martin was the first Minister for Health and Children to have an entire country rendered smoke-free in the workplace. He was the first – there was no precedent – but he was not the last. This is now the norm throughout the world. In 2013, Australia was the first country to state it would introduce a blanket ban on pictorial logo depictions on cigarettes and to introduce mandatory plain packaging; it will not be the last. I am very happy and proud that Ireland, under the Minister’s leadership, will be the second and we will not be the last. This will be the policy in many countries around the world.

Similarly with lobbying, let us be the first; I promise we will not be the last. If we pass this Bill, it will ring around the world as another onslaught in the worldwide battle against tobacco and recognition of the problem lobbying causes in Washington, Brussels, Strasbourg, London, Tokyo, Dublin and elsewhere.

On criminality, we have already criminalised certain aspects of smoking-related behaviour. We have criminalised advertising. A company cannot advertise tobacco products in the broadcast media. We have criminalised the sale of tobacco to children. We have criminalised smoking in the workplace. We have done all this before. There is nothing unprecedented about us criminalising illicit contacts between Government officials and the tobacco industry. On the disproportionality of the criminality, let us be blunt; the tobacco industry imposed the death penalty on our citizens. There is nothing disproportionate about us criminalising any part of its activities.

What about the constitutionality? Is it wrong or illicit for us to ban assembly or speech? We do it all the time. We do not allow politicians to discuss criminal cases with judges. We sequester juries completely to keep them away. There are plenty of precedents for limiting for society’s benefit what would otherwise be untrammelled freedom of speech.

The last part of this is the most painful part and I ask the Minister not to take it personally. I, better than most, have some understanding of how difficult it is to get health reforms to work through that gluey, treacly bureaucracy that is our health system. The Minister has told us he opposes the Bill because he will introduce something else. Sadly, the track record is not great in this regard. It is nearly two years since we initiated the Protection of Children’s Health from Tobacco Smoke Bill. I just do not trust the bureaucracy to let this thing happen quickly enough.

In addition, people have talked about smoke-free campuses. The Oireachtas Joint Committee on Health and Children voted against making the Houses of the Oireachtas a smoke-free campus. That committee had another vote recently – I will not go into who voted which way – to invite representatives of the tobacco to address the committee, which I very much oppose. If we buy into the line that we cannot do this because we might face a subsequent legal challenge, we are laying ourselves down prostrate in the face of legal intimidation by the tobacco companies. When their arguments that smoking does not cause cancer and that nicotine is not addictive were shown to be spurious, they then resorted to all these legal challenges.

Let a message ring out from Seanad Éireann, from Oireachtas Éireann, from Dublin, from our democracy that we are going to tackle the problem of tobacco lobbying and introduce a strategy which I know will be copied and emulated around the world. I commend the Bill to the House.

Comments Off on Protection of the Public Interest from Tobacco Lobbying Bill 2013: Second Stage

Filed under Active Citizenship

Comments are closed.