Smoking ban faces surprise challenge


The Government is preparing to fight an unexpected High Court challenge over the constitutionality of the smoking ban.

A Department of Health spokeswoman yesterday confirmed it had been served with a plenary summons and is preparing to "robustly" fight the case.

A Cork-based hackney driver, Mr Liam O'Riordan, claims the ban has infringed his civil liberties and constitutional rights under Article 40 of the Constitution.

Mr O'Riordan's solicitors, Murray & Co, are instructing former attorney general Mr John Rogers SC on the case which is expected to be heard before the High Court in the coming months. It is expected that the cost of the challenge will be substantial. However, when speaking to The Irish Times, Mr O'Riordan declined to say how it was being funded or how much it would cost.

He said it was not being paid for by the tobacco industry, and the issue was a matter between him and his solicitor. "I'm taking this case on my own," Mr O'Riordan said.

"One third of the population smoke. It may be a minority, but it's a sizeable minority. People are very angry about this. It's impacting on my social life and the life of my friends."

The Attorney General and the Chief State Solicitor's Office, meanwhile, are preparing the Government's and the Department of Health's defence. Department sources are confident the ban will withstand any legal action.

The constitutional challenge has come as a surprise to the Government. There had been talk of a legal challenge from publicans and the hospitality industry.

However, the Vintners' Federation of Ireland decided not to take this course after legal advice suggested it had less than a 40 per cent chance of securing a judicial review of the legislation which paved the way for the ban.

The Irish Hospitality Industry Alliance, originally established by a number of Cork-based publicans, said they were not involved in the constitutional challenge.

A spokesman for the hospitality industry suggested there was still room for a compromise in the light of the Government's performance in the election.

"The people have spoken and conveyed a message to the Government that the smoking ban was a factor in the election result. Smokers and non-smokers alike are saying it's affecting the social structure in rural Ireland," the spokesman said.

"Ministers shouldn't have taken the aggressive and arrogant attitude of not talking. Now they're paying the price for their lack of consultation."

The Irish Cigarette Machine Operators' Association, which also said it was not involved in the legal challenge, said members have had to sack staff and cut back working hours due to a reduction in sales. Spokesman Mr Gerry Lawlor said he believed the initial goodwill to the ban was rapidly melting away over time.