James Reilly’s plan to move on firms with tobacco contracts could hit snag

As reported on Friday, Minister for Children James Reilly (pictured) is looking at whether he can prevent any firm that has a contract with a tobacco group from tendering for work for bodies under his remit.

The development is the latest in the ongoing controversy caused by the decision of Japan Tobacco to threaten the State over legislation aimed at preventing people taking up smoking, and in particular the tobacco giant's use of Irish law firm Arthur Cox. Arthur Cox also does work for Tusla, the child and family agency.

The question arises, however, as to whether it is permissible under the law on tendering and competition to bar firms tendering for work if they have arrangements with tobacco companies.

Tony Corrigan, chief executive of TenderScout, is considered to be an expert on Irish procurement and it is his view that the "barring" of certain parties might not be permissible as matters stand.

He believes it would be possible to construct a tender document that would comply with EU legislation and also disqualify certain parties based on differences of policy.

However this might well necessitate the introduction of legislation, such as the Bill promoted by Sinn Féin’s Mary Lou McDonald in 2013 that was aimed at providing for the introduction of social inclusion clauses into public procurement. This type of tinkering with procurement rules in order to further certain policies has led in the UK to measures to promote the circulation of money in local economies.

The top civil servant in Dr Reilly’s department, Fergal Lynch, has said there would be value in sending out a message about the principal of non-involvement with the tobacco industry. Unfortunately for the tobacco companies, their argument, should the matter go to court, is that they have the right in law to promote products that bring about the death and disability of others. Lynch should have something to work with there.