By Tom Papworth
Last week, Angela kicked off a firestorm with her article about abuse of public money by Action on Smoking and Health, the anti-tobacco pressure-group.
Now, Liberal Vision does not need to dwell on tobacco regulation. There are countless infringements on individual liberty out there to discuss, and we don’t want to develop some single-issue hobby-horse. But tobacco regulation is a good proxy for plenty of other government interventions, and the activities of the anti-smoking lobby are echoed by paternalists in other parts of the public health establishment and beyond. It is therefore worth teasing out some of the issues that tobacco regulation raises so that we can better understand liberty in general.
It seems to make sense to begin with a comment from Martin: “Why on earth is [Angela’s] article listed under ‘Personal Freedom’?”. Martin argues that:
Smoking harms human health, as does secondary smoking… Poisoning other people irrespective of their wishes makes an absolute travesty of the term ‘personal freedom’. A more appropriate article tag would be ‘Blinkered Self-Interest’.
Much to the chagrin of some libertarians, it is a fair question and it deserves a response. It is also not enough to deny the effects of second hand smoke: whether or not you question the belief that evidence of the dangers of passive smoking is conclusive, it is clear that the evidence is not conclusive that it is not dangerous. Furthermore, it is smelly and unpleasant for many non-smokers and so some form of negative externality results even if the health one does not.
Having said that, I do believe that this is a matter of personal freedom, and I hope to explain why.
In a follow-up email to Angela, Martin explained why he felt that smoking was not a matter of personal freedom or one compatible with liberalism:
Liberalism has always been about personal freedoms that should only extend up to the point before they start to harm others…. you are bastardising the central plank of liberalism by linking the slow poisoning of others with some sort of human right.
The first point is clearly a reformulation of a sound principle, best captured by Oliver Wendell Holmes when he said that “The right to swing my fist ends where the other man’s nose begins.” However, this must surely be situational: if Holmes is already swinging his fists about when Martin walks up to him, and Holmes therefore breaks Martin’s nose, it is Martin who has invaded Holmes’s personal space and responsibility rests with Martin for the pain he has suffered. Similarly, if Angela is sitting on a bench enjoying a cigarette and Martin comes and sits alongside her, it is Martin, not Angela, who is responsible for any perceived aesthetic or medical consequence. The alternative would be either to ban Angela from smoking altogether (which is the response taken by ASH and the government in banning smoking in many areas) or to empower Martin to force her to stub out every time he approached her.
Of course, it is not simply enough to say “s/he who arrives first gets to decide” (though that is exactly the approach that has traditionally been taken to ownership of resources). Martin may not have to sit next to Angela on the bench, but he may have to sit next to her in a train or a pub. So who should arbitrate in this case?
ASH clearly believes that this is the role of government – which it has encouraged to ban smoking in just about any venue where two strangers might meet indoors. However, it is that which is at odd with liberalism; not the “slow poisoning of others.” This is my second point: that ultimately, the right to decide what takes place in any locale should be at the discretion of the owner of that property. (A unhelpful and circular argument results from adding “as long as the activity is legal” which encourages paternalists to point out that the government can make it illegal on private property, which is true but not liberal. It’s a long-winded diversion, however. Read The Constitution of Liberty if it is troubling you).
Imagine Angela, Martin and I are on Come Dine With Me. When we all go to Martin’s house, he is entitled to tell Angela that she cannot smoke anywhere on the premises. At my house, I might say that it’s up to them whether they smoke, or that they can smoke, but only in the garden. When we visit Angela, she is within her rights to say that we are only allowed in her house if we smoke. Martin will refuse to enter Angela’s house – and mine if I let Angela smoke at the dinner table – and similarly Angela may refuse to set foot in Martin’s. That’s fine. It’s their house; they make the rules.
Why is a restaurant different from a house? Why is a taxi different? Or a pub (which, despite it’s unfortunate name, is a private, and not a public, space)? The answer is that there is no difference. It should be up to the restaurateur, the taxi driver and the publican to set the rules.
Anti-smokers usually fear that this will result in a free-for-all with smoking everywhere. This is unlikely. Truly “public” (or quasi-public) spaces, those run or regulated by public bodies, would undoubtedly remain smoke free. As for the rest, it is unlikely that they would all now revert to allowing smoking: non-smokers like smoke-free spaces, and there are costs to cleaning up after smokers. However, if the balance tipped too far towards smoking establishments, this could be managed by a licensing system: taxi licences would either forbid smoking or regulate the number of smoking cabs; local authorities could license smoking as they do on- and off-licence sales of alcohol. This still undermines property rights, but it is a better solution than the current blanket provision. Why, after all, can the members of a private club that centres around the enjoyment of cigars not smoke in their clubhouse?
The third point, then, must address what is often portrayed as both the main argument and the one hardest to refute – though ASH admitted it was in fact merely a tactical ploy – which is that something must be done to protect the health of workers. This, again, is a property rights issue: every man has a property in his own person, and is able to make an informed decision as to the costs and benefits of any employment. The idea that no person should be allowed to take employment that carries a risk is absurd. Instead, the risks should be made clear and individuals should be free to determine the balance for themselves. If people are able to evaluate the risks of going to war or space, of running into burning buildings or driving 40 tonne trucks across a thin layer of ice above the Arctic Ocean, they are presumably able to evaluate the risks, and the potential rewards, in terms of wage premiums, higher overall levels of employment, and so forth.
Some might not mind working in a smoky bar; some might actively enjoy it; and some might value the extra income more than they fear the health risks. But it is their choice to make. They do not need ASH or the government taking decisions for them. It is that removal of individual choice, discretion and responsibility that is “bastardising the central plank of liberalism”.