Plain-packaging & the State’s relationship with the tobacco industry

There is an important sub-plot to Minister James O’Reilly’s seemingly successful effort at enacting legislation for the introduction of plain-packaging for tobacco products by 2017. It concerns the incongruent relationship that the Irish State has with the tobacco industry, and with legal firms that advocate on its behalf.

Recent reports have shown that the Ireland Strategic Investment Fund has over €9m invested in tobacco companies, while Arthur Cox, the firm representing Japan Tobacco Ireland in its litigation against the State challenging plain-packaging, has received around €1m in legal fees from advising various State agencies and bodies, including the Health Service Executive.

As it finalises a National Action Plan on business and human rights, the Irish Government has a prime opportunity to set out an ethically coherent approach to State investment and procurement. As an investor and consumer of goods and services itself, the Irish State has a significant capacity to promote responsible behaviour by the private sector and to insist on respect for human rights by those companies with whom it does business.

The Minister for Foreign Affairs and Trade, Charlie Flanagan considers that “placing human rights firmly on the business agenda” is necessary for enhancing the reputation of Ireland and of Irish companies. The National Action Plan on business and human rights is being prepared by his Department, following a broad consultation with civil society and business. It is aimed at implementing the United Nations Guiding Principles on business and human rights, a framework document unanimously endorsed by the Human Rights Council in 2011. Ireland is currently the holder of a seat on the Council.

The UN Guiding Principles emphasise a State’s duty to protect human rights, a corporate responsibility to respect human rights, and the need to ensure access to remedies in the event of breaches. The State duty is grounded in existing international human rights law, which requires a State to ensure that third parties, including business enterprises, do not violate human rights.

A national business and human rights plan is very timely for Ireland, as concerns have been raised by the recent activities of Irish-based companies, both at home and abroad. These include inadequate protection of data and the right to privacy by social media companies, the supply of software used for censorship to Syria’s repressive regime, and the operation of construction firms in Qatar where forced labour and appalling working conditions prevail. The State must make clear in its national action plan that it expects Irish companies to respect human rights throughout their operations.

To meaningfully ensure business respect for human rights, countries can insist on compliance with human rights as an eligibility requirement for State support or services, investment, procurement or listing on the Stock Exchange. The UN Guiding Principles consider that the various commerical transactions undertaken with companies by States provide a unique opportunity to promote awareness of and respect for human rights by business.

In 2014, the European Union called upon Member States to bring about the ‘appropriate integration of environmental, social and labour requirements into public procurement procedures’. The Dutch national plan on business and human rights notes that in the Netherlands, ‘companies supplying the government with goods and services are required to respect human rights’.

Ireland needs to move beyond merely encouraging Irish business to be socially responsible. The business and human rights agenda differs from corporate social responsibility in that it is based on what is required and expected of companies, rather than what a company chooses to do voluntarily, in order to ‘give something back’ to society. No amount of charity or philanthropic work can offset a negative impact on human rights.

Legislating to reduce tobacco consumption by introducing plain-packaging can be seen as a legitimate attempt to meet the State’s human rights obligation to fulfil the right of every person to the highest attainable standard of health. A consistent approach to human rights in this context would mandate that the State does not invest in the tobacco industry and that it reconsiders doing business with companies that support, represent or promote it.

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