The Supreme Court is hearing an appeal by the Minister for Health and the State against the High Court's refusal to allow them call detailed evidence about the health effects of smoking and the impact of advertising of tobacco products.
The State wants to call the evidence during the forthcoming hearing of a legal challenge by tobacco companies and others to tough new legislation restricting advertising of tobacco products. The State contends this evidence is necessary for the court to hear when considering the State's argument that the legislation is justified and proportionate.
The High Court had ruled earlier this year that, in light of certain admissions by the companies, there was no need for the State to call extensive oral evidence regarding the effects of tobacco on public health in the challenge.
In his High Court decision, Mr Justice Kelly said it could not be said that the plaintiff tobacco companies had not admitted the health effects of smoking and/or exposure to environmental tobacco smoke. "In my view, it would be a waste of public time and money to permit the adducing of unnecessary evidence," he said.
He directed that areas specifically admitted in the reply of the companies, made for the purposes of the legal proceedings only, may not be the subject of evidence being heard, including the nature of tobacco and its health effects.
However, appealing on behalf of the State against that ruling yesterday, Mr Patrick Hanratty SC, argued that the admissions, while they were fine and useful as far as they went, did not go that far. There was no admission in relation to the extent of the adverse consequences of smoking.
His side wanted to take the medical evidence further than was set out in the admissions and also wanted to call evidence specific to the position in Ireland, including evidence relating to the effects of passive smoking on children and links between smoking and underweight babies.
The State also wanted to call evidence to support its argument that advertisements caused people to smoke and deterred them from quitting, Mr Hanratty added.
Opposing the appeal, Mr Dermot Gleeson SC, said there was a total confusion of constitutional roles at the heart of what the State was proposing. The Constitution required that laws be delivered on the basis of representative democracy while the courts were set up to adjudicate, on their individual facts, disputes which individual citizens may have with the State.
The State was asking the court to say that it would look at legislation after enactment and decide whether it was proportionate. The court was also being asked to do this on the basis of evidence which had very serious weaknesses, including that some of it would not have been before the Oireachtas when it decided on the legislation.
The appeal is being heard by a five-judge Supreme Court, presided over by the Chief Justice, Mr Justice Murray. It is expected to conclude today.
The legal proceedings were initiated last April and involve some 16 companies which supply and distribute tobacco products. Other plaintiffs are involved in supplying cigarettes to vending machines and one is a newsagent representing a number of retail outlets.
The plaintiffs claim the disputed provisions of the Public Health Tobacco Acts 2002 and 2004, and the regulations which were proposed to be made under these, are unconstitutional and in breach of EU law.