The Right to Smoke:
A Conservative View
by Sean Gabb
First published by the Freedom Organisation for the Right to Smoke Tobacco (FOREST), London, 1989, ISBN: 1 871833 06 X. On first publication, this pamphlet carried the name of Allan Stewart MP, but is entirely my own work.
"Freedom is our most precious possession. To defend it and maintain it is no passive task, but one that requires continuous vigilance and resolve." Margaret Thatcher
The Risks of Smoking
That there are health hazards associated with smoking is probably true, although the wilder assertions of the anti-smoking lobby sometimes prompt one to wonder whether they have been exaggerated. However, there are health hazards associated with virtually every pleasurable human activity, and many whose pleasures escape me (pot-holing and hang-gliding, for example).
The majority of people in this country have been exposed to a massive campaign to alert them to the potential dangers of smoking and – as government surveys show fully accept the accuracy of those warnings.
In spite of this, around two fifths of the adult British population still smoke. As a fraction of the whole, this has declined since the Fifties. But the most recent General Household Survey shows that 33% of people smoke cigarettes.3 Why? The British public is very far from stupid. It is one of the most stolid, level-headed groups of people in the world. What can make one third of it continue with an activity known at least to some extent to be harmful?
One proposed answer is that the big interests prefer things this way. The cigarette market worldwide is dominated by seven giant companies – rather, by seven multinationals! In this country alone they spend over 100 million a year on advertising; and governments are kept quiet by the scale of the revenue brought in. In 1987-88, for example, the United Kingdom government raised £5,775 million in excise duties and Value Added Tax from the sale of tobacco products.4 It takes only a certain view of politics, and all the materials are there for a really big conspiracy theory.
Yet, all cigarette packets show the words "WARNING: SMOKING CAN CAUSE FATAL DISEASES Health Department's Chief Medical Advisers". Since their introduction in 1971, these health warnings have become increasingly lurid. They are also duplicated in Welsh where appropriate. To be sure, they may have become so familiar that no one takes the trouble to read them any more. Similarly, hoar dings displaying cigarette adverts are identified beyond all doubt by the words printed bold in black on white just across them – "H.M. Government Health Warning: Cigarettes can seriously damage your health". The average smoker may not have read the detailed medical literature. He may avoid newspaper articles or television documentaries summarising it. He would need, even so, to be blind or illiterate not to have some basis for making an informed choice on whether or not to light up.
Another favourite answer is that cigarettes are so hugely addictive that most smokers, having once tasted them, are incapable of giving them up. "Once a smoker always a smoker" says the medical expert M. A. H. Russell. Says he elsewhere: "[I]t requires no more than three or four casual cigarettes during adolescence virtually to ensure that a person will eventually become a regular dependent smoker. Only about 15 percent of those who have more than one cigarette avoid becoming regular smokers."6
This, I suspect, is one of those exaggerations which do the case against smoking no service. From my own experience, Russell's claims sound unlikely; and they are easily questioned on better grounds than that. He admits himself that it requires around 20 cigarettes a day before physiological dependency becomes apparent.7 In 1980, a quarter of current smokers claimed a daily consumption of ten cigarettes or less. 62 percent of women and 48 percent of men claimed one of less than twenty cigarettes.8 By his own definitions, then, a good half of all smokers are not regularly dependent on their cigarettes. In the ten years from 1977, moreover, 20 percent of British smokers are believed to have given up the habit. The evidence of a will-rotting addiction seems rather tenuous.
What, then, of the frequent claim that most smokers want to give up but are unable? Certainly, in a 1978 opinion poll, 41 percent of current smokers said not only that they did want to give up smoking, but that they had also tried and failed. Other research, however, indicates that this desire should not be taken altogether seriously. In a study of 12,000 Philadelphian smokers, 41 percent of those questioned claimed an interest in giving up if help were available. A clinic was set up. It was made use of by just 150 – or 3 percent of the 41 percent.11 As those citing this ask with a common sense rare in their field, 'how better for a smoker to avoid the pesterings of a physician or other interviewer than to say (whether believing it or not) that he wants to and has even tried to give up cigarettes?'.12
Then we have the Freudians – predictable as ever. People smoke, we are told, because a cigarette looks like a penis or a nipple.13 Sometimes we are told it expresses parricidal intent.14 Doubtless, the psychologists do have much to tell us that is both interesting and true, though many will find these particular claims far fetched. I might also say that, whatever explanation Freud himself favoured, he got through twenty cigars a day for most of his life.15
II … and the Benefits
In reality, people smoke for the same reason that they do most other things – because they believe doing it to give more pleasure than not doing it. And, as many smokers will admit in the right sort of company, cigarettes do give a lot of pleasure.
Try to imagine a smoker's first cigarette of the day. The act comprises very much more than a mere dragging away in search of a nicotine fix. There is the familiar procedure of unwrapping the packet, opening it, taking out ~he cigarette, followed by the rich, familiar smell of the tobacco as the filter is placed between the lips. Each brand is as individual as the different brands of coffee or tea. Each has its own texture, smell and taste. The range of variation is endless. It goes from the smoothest, mellowest Virginia, to those exotic, aromatic orientals, which only the most specialised palate can appreciate. With each perhaps is connected its own train of thought, recalling friends met, places visited, hopes realised or dashed. The sudden brightness of the flame illuminates the morning dullness. Then the smoke is drawn down into the lungs. From that first inhalation, it takes an average of seven seconds for the nicotine to be absorbed through the bronchioles into the bloodstream, and carried thence to the brain. Within seven seconds, the spell is working its effect on the smoker's mood. Nicotine stimulates. Nicotine soothes. It cheers the lonely. It aids the sociable. A pleasure in itself, it enhances every other. It came to Europe back with Columbus, and has been the valued friend of millions ever since.
Yet, considering this matter, of expense, it is worth noting that, whatever it may on the whole be, the balance in the case of individuals need not always be negative. Insofar as nicotine soothes the nerves, it may sometimes reduce the chance of stomach ulcers and other stress-related illnesses. It may prevent many suicides and perhaps the occasional murder.16 Insofar as it depresses appetite, it restrains obesity and may sometimes lower rather than raise the chances of heart disease. Even otherwise – even if in every case it should be an expensive friend – to measure quality of life purely by duration needs a singular poorness of spirit. "Do you think … it so very lucky to have a long miserable life?" asked Freud of his doctors when told to cut his smoking.17
Whether or not we ourselves share them, tobacco has very definite pleasures; and most of us nowadays do not share them – willingly recognise that they exist.
III The Anti-Smoking Lobby
There are, nonetheless, individuals and groups who remain quite unmoved by this. First among these are many doctors. We all need their help at least occasionally; and it would be unnatural if they were not saddened or alarmed at some of the maladies we take before them. Quite a few are wholly self-inflicted. Many others are worsened by what we do. If there were less smoking, they reason – and, I suppose, correctly enough – there would be less illness. If warnings have too little effect, some go on to reason next, some form of compulsion is in order. Few of them have gone on record as supposing that an activity so hugely popular as smoking still is could ever be prohibited outright. Even so, their final target can only seem to be the complete banning of tobacco. Their professional body, the British Medical Association, has been for some time now pressing for four preliminary measures of control. First, there is to be the phasing out of all advertising and sponsorship by the tobacco companies. Second, there is to be increasingly heavy taxation of all tobacco products. Third, there is to be the creation of civil law remedies for those who suffer by smoking. Fourth, the right to smoke in all public places is to be gradually taken away. These are so often and so publicly demanded that giving multiple examples would be a waste of paper. One is enough for all. In 1984, it was announced that black-lined cards were to be distributed to general practitioners, for sending to their Members of Parliament whenever any patient's death could be plausibly ascribed to his having smoked.18
Seconding in this campaign is the pressure group, Action on Smoking and Health. While this lacks the gravity and prestige of a chartered institution, it is equally less bounded by the constraints of truth and common sense;19 and so, despite its small and unrepresentative membership, it counts in the media as an important interest.
Then there are many people in the Labour Party, wanting to save us from ourselves or whatever it believes is threatening us. Shortly before the last election its Health Spokesman, Frank Dobson, promised a total ban on tobacco advertising or promotion should it ever come to power again.20 Ten days later, it published a consultative document in which was aired the possibility of forbidding all sponsorship by tobacco companies – but still forcing them to hand the money over as before, in case sporting events should suffer thereby any loss.21
IV Conservatism: The Party of Freedom
For myself, I stand by the right to enjoy smoking. I am fiercely and unalterably opposed to any measures which will, for the sake of a smoker's own supposed benefit, tend to infringe that right. But then I am a Conservative. I belong to the Party of Freedom.
Now, since I am writing for a general audience, this assertion may raise a few sceptical smiles. There are, indeed, countries where to make it would be to state a contradiction. Throughout much of Europe, conservatism often means a fondness for the old authoritarian right. At times, it has meant something very different, and very much worse.
In the United Kingdom there is a main party of state in this country which has totalitarian leanings. Some of its more prominent members seem to want the violent overthrow of the present constitution. Some others gladly look forward to a reign of terror. That party is not the Conservative Party.
I turn now to the other misconceived view of what British Conservatism is – that it is a local variant of a European movement. Its advocates are blessed with an enviable clarity, and often with brilliance. Their attacks on the "cold hearts and muddy understandings" of the left, and exposure of its tyrannical leanings, have earned them a leading position in modern British thought. But our native conservatism has nothing elaborately metaphysical about it. It subsists in a strong regard for custom and tradition, together with a dislike of unnecessarily rapid change. And, if anyone cares to ask what single principle our customs and traditions exemplify, the answer is easy: it is freedom.
The history of the British Isles, to an extent greater than in any other old country, has been the history of Freedom. It begins nearly eight hundred years ago, when a King was forced to concede for all time that in England the subject has certain rights, and that the law protecting them stands far above any mere holder of power.
Nearly every following event has been concerned with the working out or reaffirmation of this principle. The summoning of the first Parliament; Mr Justice Markham's sentencing of Prince Hal; the Petition of Right; the Bill of Rights; the Act of Settlement; Fox's Libel Act; Catholic Emancipation; the abolition of slavery; the Married Woman's Property Act – these are just some of those events. Each one is a milestone in the progress of human liberty.
It is true that many of our currently enjoyed rights we owe to the Whigs and Liberals; and the Conservative Party, thinking them unwise or simply inopportune changes, was often on the wrong side of the question. But where are the Whigs and Liberals now? The Whigs entered the Conservative Party after 1886, bringing their traditions with them. The Liberals entered likewise after 1922. No matter how bitter the old disputes may have been, they have been ended by the fusion of the three parties into one. To see the truth of this, we need only look back over the past ten years of Conservative rule. Margaret Thatcher came to power in 1979 after a long period during which our old national emphasis on the individual had been giving way to what seemed a more exciting – even a more 'scientific' – trust in the collective. She set immediately to work. Her Government has since then done more to roll back the frontiers of the State than any other this century. It has given back to the people choice in education and in housing to a degree that only ten years ago would have been thought utopian. It is extending the same kind of choice in health. It has clearly affirmed the right to belong or not to belong to a trade union. It has stood up for the rights of British subjects in every part of the world. It has reduced the top rate of income tax from 98% to 40%, and the lower rate from 33% to 25%.
I believe that the process of setting the people free has many mountains to climb. Its timetable extends into the next century. It would be grossly inconsistent to take this general line, and at the same time demand or accept curbs on smoking. The Party of Freedom, to which I belong, should apply its principles consistently.
V Individual Rights
I believe, like John Stuart Mill that
the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection …. [T]he only purpose for which power can be rightly exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right …. Over himself, over his own body and mind, the individual is sovereign."23
So long as we commit no trespass against the life or property of another human being, how we use this sovereignty over ourselves is a matter for ourselves alone. It may be gathering as much money or status as can be legally had in a given time. It may be a life of self-sacrifice, helping the poor in the Third World. It may be risking life and liberty standing up for what is believed right. It may be smoking twenty cigarettes a day in spite of the known risks to health. But how one of us decides to spend his or her life is not a matter in which anyone else may rightly interfere. Each of us is different, and there is no one who can know in advance what it pleases us to do with ourselves. There are people who disagree with this. They watch others making choices which they themselves would not make, and grow distressed. They talk variously of "psychopathic personality disorders" or "false consciousness". Put whatever way pleases, all this talk reduces to is a claim to the running of someone else's life. Those from whom it issues are, to quote Churchill, "autocratic philanthropists who aspire to change the human heart as if by magic and make themselves our rulers at the same time".24
VI Anti-Smoking and Anti-Democratic Elitisms
They are also, of course, anti-democrats. I know that freedom and democracy are not the same thing. The first answers the question of what powers the government should have, the second merely of by what right it should hold them. A government might be largely or even wholly unelected, and yet allow the widest personal freedom. At the same time, a democratic majority can easily be imagined voting its freedoms away. The old saying 'One man, one vote – once' is sad testimony to this.
Yet though freedom can exist perfectly well without democracy, there is no such thing as democracy without freedom. As Margaret Thatcher has said "[a] belief in parliamentary democracy is incompatible with belief in the superior rights of any group, section or class over any other."25 To say that people are incapable of running their own lives, and at the same time leave them free to run the lives of everyone else, is an absurd proposition and not one often applied. By an irony too common to notice, just about every unfree country calls itself a democracy. In every one of those countries, democracy is a sham. The whole moral grounding of the anti-smoking lobby is a belief that there is one group of people – doctors, puritans, or whatever – with a superior knowledge of what is good for everyone else. Whether or not this knowledge is superior, one thing is certain: to the extent that these people want to impose their belief on others, then their views are incompatible with the principles not only of freedom but of democracy.
VII Smoking and Class Conflict
This would be the case if smokers were a group defined simply by their activity. It becomes so all the more if we realise that this – to borrow a phrase – is 'a class issue'. There can be few institutions in the country more solidly bourgeois than the British Medical Association. Action for Smoking and Health, though scarcely solid in any nattering sense, is clearly at least middle class – or so I judge by the accents of its leading members. Yet, to an increasing extent, smoking is an activity of the lower income groups. In 1972, 33 percent of female professional workers smoked, by 1982, only 21 percent. During the same period, the percentage of female unskilled workers who smoked fell by just one point, from 42 percent to 41 percent.26 Cigarettes are fast disappearing from the average dinner party in Hampstead. On the housing estates, from South London to Glasgow, lighting up remains perfectly normal in company – as much a part of watching television as making tea during the commercial break.
It is now 42 years since the Labour Party statesman Douglas Jay, wrote these words: "… [I]n the case of nutrition and health, just as in the case of education, the gentleman in Whitehall really does know better what is good for the people than the people know themselves."27 Since then, the voice of middle class bossiness has lost much of its glad, confident tone. The underlying ethos lives on even so.
VIII Smoking and the Philosophic Case for Freedom
All this having been said, I turn now to the matter of whether any state-imposed restrictions on smoking can be regarded as entirely proper. In the first place, let us examine the grounds on which freedom is justified. For me, it consists in the simple wish that people should be as happy as they can be – or, failing this, no more unhappy than is absolutely inevitable. I believe that this state of affairs is best realised if people are left to their own choices, rather than if directed by some outside authority. Now, this belief is not open to direct verification. To say that economic freedom tends to make people rich is to state an empirically testable hypothesis; and its proof is for me the whole lesson of Economics. But happiness is not the same as wealth. I say that freedom tends to maximise happiness. But the implication of what I have already said is that what makes people happy is revealed by what they freely do. Therefore, any direct verification of the belief involves arguing in a circle: what people freely do makes them happy, because what makes them happy is shown by what they freely do.
What I must do, then, is state a further hypothesis in support – that people are responsible agents. This is to say that, when making choices which are irrevocable or seen by others as self-destroying, they are presumed capable of understanding what they are doing. Take away this presumption of capacity, and freedom would be about as useful to them as a candle is to a blind man. This is testable. In most adults, we can easily see the capacity to exist, even where it is not often used. For example, imagine that I see a neighbour lean out of an upstairs window in his house to clean the glass. He is not wearing a harness. He leans back too far, and falls onto his front lawn. I run to help him, but he stands up shaken though unhurt. "Fixing a harness seemed a lot of trouble" he says. "I took a chance and lost." Alternatively, he says: "How dreadful that fall was. I never realised I might be in so much danger." In either case, I assess his degree of present responsibility from observed or inferred past conjunctions of desire and outcome. Assume that I do find him responsible, and in the first case nothing much need be said: he made a miscalculation. In the second, I can only shake my head and wonder at a grown man being so careless. If I see him coughing his heart up over a cigarette, precisely the same reasoning applies.
Children, on the other hand, are different. The capacity for making an informed choice exists in them only potentially. It becomes actual with time and the gaining of experience. Until then, there is no virtue in treating them as free. Insofar as smoking cigarettes involves very probable dangers to health, they should be kept out of the hands of children. The only room for argument here is over means rather than ends. Control should be enforced ideally by the parents. But if they refuse or are too weak to do this, I see a perfectly legitimate role for the State. The Protection of Children (Tobacco) Act 1986 is only the most recent declaration that this role has been assumed.
For the same reason, I am inclined to say the same regarding those adults found suffering from such evident defects of reason as to be judged incapable of making any other choices for themselves. Naturally, I am cautious on this point. For reasons too obvious to set out, I believe that the normal presumption with adults should be of responsibility, and that any exemption from this should be made on specific application, and only in the light of clear evidence. But, where clear evidence is found, a case for denying the right to smoke does exist.
IX "Externalities" and the Alleged Grounds for Restricting Liberty
Moving on from this, I now discuss the possibility of restrictions for the sake of protecting the rights of others. Here, a moral victory has been gained against the anti-smoking lobby. For years, not just the main, but usually the sole, argument was that tobacco harmed the smoker. In our own age of reviving individualism, this is no longer thought enough. Increasingly, the emphasis is shifting to the alleged harm suffered by third parties. To the extent that this shift is taking place, a vital point is being silently conceded – that what people do to themselves is no one else's business. As for the new kinds of claim advanced, these are, in the absence of decent evidence, fairly easily dealt with.
(i) The NHS and the Costs of Smoking
First, there is the claim that the treatment of diseases related to smoking is an expense to the whole community. In 1984, the medical cost was assessed at 370 million.28 Evidently, money spent on one thing cannot be spent on something else; and, mindful of this, at least one doctor has refused to give his time and the resources at his disposal to anyone who will not stop smoking.29 £370 million is a lot of money to spend on treating what some would call self-made invalids. But the œ5,775 million tax harvest raised from smoking in 1987-88 is a lot more money – some thirteen and a half times more. So far from being a strain on the National Health Service, smokers pay their own way – and pay it pretty handsomely.
Simple arithmetic refutes this particular argument. But, even assuming the financial balance were entirely reversed, it would still be worth resisting. It contains a principle which, established in any one respect, would logically entail the most searching state control over our lives. For, unless a relationship of master and slave be intended, every right granted and obligation conferred carries its own limiting reciprocal. Oblige me, for example, to keep a child out of harm, and I must have the right to stop him from playing with fire. Oblige me to keep him healthy, and I must have the right to stop him from drinking bleach. Oblige me to educate him, and I must have the right to compel his attendance at the appropriate place of learning. Give him the right to my protection, and oblige him at the same time to obey me in doing what I think for his good.
Now, it does seem that the National Health Service, as currently funded, implies a relationship of exactly this kind. Those of us who pay National Insurance Contributions might well be entitled to wonder if we have not the same unlimited obligation on us that a slave owes to his master. This being found so, and it being assumed that smokers were a net burden on the system, it would only be common justice if we looked round for some limiting reciprocal. It would be a public right then to put curbs on smoking, even to the extent of an outright ban. By the same reasoning, however, any other activity – no matter how traditional or how honoured, or, for that matter, how private – from which a danger to health significantly above average were found to result, would be equally open to control.
It says much in favour of the British public that this argument has never been seriously advanced or considered. Logical consistency is a fine thing. Common sense is better every time. But the danger is there. In the long term, given the reforms already being carried through by Kenneth Clarke in the Department of Health, it will diminish, as private money becomes increasingly merged with state provision. For the moment, any version of the argument should be resisted whenever heard.
(ii) The Alleged Effects of "Passive Smoking"
The second claim is that smokers pollute the air, so exposing non-smokers about them to all the health risks associated with tobacco. According to one Japanese study, "the deleterious effects of passive smoking may occur in proportion to the exposure of non-smokers to smokers in the home, the workplace, and the community."30 Perhaps 50 percent of non-smokers living in cities are thought to have absorbed significant amounts of nicotine into their bloodstreams from the surrounding air. In another Japanese study, it is alleged that non-smoking women with smoking husbands are twice as likely to develop lung cancer as those with non-smoking husbands.
This is an extremely serious claim. If ever established, it would at once shift all debate from whether anything should be done about smoking to what should be done. Not surprisingly, therefore, the concept of "passive smoking" has been taken up with enthusiasm, and proclaimed as an established fact. For the moment, it remains nothing of the sort. Other studies have found no statistical correlations anywhere near so certain as those found in Japan. In one of them, for example, levels of nicotine in the air were checked at 47 offices and 48 restaurants. The conclusion reached was that it would take an average of 550 hours seated at a desk and of 400 hours seated at a table before enough nicotine would be absorbed equivalent to having smoked one cigarette.33 The evidence for passive smoking remains so ambiguous that no definite conclusions can as yet be drawn from it. Those which are drawn are often pure fabrication. In 1986, the Surgeon General of the United States went on record as stating that 2,000 American adults died each year as a result of passive smoking. When challenged to prove this, he retracted the statement, claiming that, if untrue, it had still been made in a good cause.34
Even if, moreover, a definite correlation ever were found, it would still not automatically follow that government action were required. For a solution to be worth adopting, it must first be shown both likely to work and not likely to result in the creation of fresh and unacceptable problems elsewhere. Our experience generally of government action has not been encouraging. When action is to be considered against a pleasure enjoyed by millions, our only available experience indicates that it might be disastrous. I am thinking of the American alcohol prohibition. This had its optimistic advocates, promising heaven on earth if only something were stamped on hard enough. Said the evangelist Billy Sunday when they had their way in 1920: "The reign of tears is over. The slums will soon only be a memory. We will turn our prisons into factories and our jails into storehouses and corn cribs. Men will walk upright now, women will smile, and the children will laugh. Hell will be forever for rent."35 By 1930, over half a million Americans had been arrested for alcohol offences. Another 35,000 had died of alcohol poisoning.36 Organised crime and public corruption had become endemic in the United States, and have remained so ever since. Of course, as said above, no respectable group or individual has yet come openly out in favour of tobacco prohibition. But the American example illustrates as plainly as anything ever can that government action does not always achieve its stated ends without a pretty high cost – and sometimes fails to achieve them at all. This said even so, let it be assumed, for the sake of argument, that a definite correlation were actually found to exist; and, the 'passive smoking' claims substantially verified, that smoking did carry a certain risk to third parties. This done, let us then look at the four main options for control earlier mentioned.
X Smoking Restrictions: A Critique
(i) Advertising and Free Speech
First, there are restrictions on the advertising of tobacco products. There are some opponents of these who claim that they would have no effect: people would go on smoking exactly as before. The argument is advertising results in consumers switching between brands, rather than affecting the total level of smoking. On the other side it has been argued that when a ban was imposed in Norway some years ago, smoking among young people there subsequently fell.37 I prefer to stand on the fundamental grounds of opposition. Whatever the effect to which advertising restrictions work, it is clear that they constitute censorship.
Where political discussion is concerned, the case for free speech hardly needs putting. Introduce the power of government onto either side of a dispute, and, as Macaulay said, "instead of a contest between argument and argument, we have a contest between argument and force. Instead of a contest in which truth, from the natural constitution of the human mind, has a decided advantage over falsehood, we have a contest in which truth can be victorious only by accident."38
This is true for politics, and I see no reason why it should not be equally true for other kinds of discussion. Except they urge different actions, the statements "Vote for X" and "Smoke Y" fall into exactly the same class. Both recommend people to do a certain thing. Both, if amplified, will have reasons attached for doing so. The reasons given may be good or bad. The politician may be a corrupt egomaniac. The cigarettes may be almost dripping tar. Both statements, if acted on to a sufficiently large extent, might result in varying degrees of harm to the community. Suppressing either involves an attack on the free communication of ideas, and, as such, on the efficient separation of truth from falsehood.
Though there are as yet no legal restrictions in this country on advertising or promotion of tobacco products, there is an agreement between the government and the tobacco companies. This is supervised by the Advertising Standards Authority. From the continual and bitter railing against it by the anti-smoking campaigners,39 it might be thought that this had no effect, and that it certainly fell short of censorship. But restrictive agreements to which a government is one party and some of its subjects the other are seldom voluntary except in form; and this agreement seems not only to constitute censorship, but censorship of a rather dangerous sort.
In early 1987, the parties met for the purpose of setting further regulations of advertising at sports events sponsored by the tobacco companies. The result of this meeting was that the amount of sponsorship money given to explicit advertising was cut from 30 percent to 20 percent, and the size of the Government Health Warning on the advertisements was increased by 50 percent, to 15 percent of the total size.40 To call this sort of agreement "voluntary" is an almost Orwellian misuse of language. What we have here instead is surely an instance of what Enoch Powell some twenty years ago called the "Rule of the Threat of Law''.41 A government wants something done, yet feels disinclined to trouble with changing the law to compel that thing's doing. So it announces its wish and invites the "voluntary compliance" of those to be affected – who, of course, do comply, through fear of indirect consequences if they refuse or of an eventual regular law which might be more onerous. There is no guiding of a bill through the two houses, no explaining or giving of reasons, no question of appeal to the Courts by anyone who might think himself harmed. Since there is no actual law, there is no bar on selective indulgences or victimisations. There are simply the words of those in power "Let this be done" and it is done.
Any country in which this is allowed to become a normal and accepted mode of government has lost its freedom. Regular elections may still be held. The Judges may retain their independence. But when the principle has gone out of a Constitution – that there is no authority outside that given by law – the line dividing freedom from serfdom has been crossed.
Applied to the situation in Great Britain today, this of course sounds grossly alarmist. So far from going down the road to serfdom, we turned resolutely back up it in 1979, and have been moving further away from it ever since. On one point, I stand squarely with the anti-smoking lobby: the Voluntary Agreement must go. I see no good reason why the tobacco industry should be treated any differently from any other industry in a free market.
(ii) The Counter-Productive Effect of High Tobacco
Second, there is heavier taxation of tobacco products, thereby raising prices. The advocates of this scheme often like to present their case in the technical language of economics. They draw graphs, purporting to show how every fresh two pence or whatever on a packet of twenty will cut smoking by so many millions.42 Economists may be growing increasingly sceptical of whether demand schedules can ever be drawn for a real world of constantly shifting tastes. I suspect that the real purpose of all this calculating and plotting is largely to impress people with the scientific truth of the argument being advanced, as well as its alleged justice. I see no reason, however, to doubt its basic premise. The higher the price of a good, generally speaking and other things being equal, the smaller will be the quantity of it bought. Demand for cigarettes appears to be fairly inelastic, much the same number being bought at any price tried so far. But it seems quite evident that, prices being pushed far enough, there would be a substantial fall in demand. All the same, I can think of several perhaps fundamental objections.
There is the effect on the public finances. This is, l know, its third mention; but £5,775 million is a lot of money. If taxes were increased far beyond whatever point at which net revenues began to decline, greater burdens would need to be placed elsewhere. At the moment, the public sector is in massive surplus. The burden probably could be shifted with little apparent effort. It should be remembered, though, that this is the first government in the better part of a generation able to finance all its spending while at the same time remaining solvent. Quite a few of those who cry out for depressive taxation on tobacco also cry out against the only policies which make it even half possible. Long may they never be forced to reconcile these cries!
There is our membership of the European Community. We are committed to an eventual harmonisation of taxes. This might involve cigarette prices in Greece and Portugal rising from their current average of 50p per packet of twenty. It would certainly be incompatible With prices in Britain remaining at their present level, let alone being pushed higher.
Then there is the "class issue" again. For those smokers in the higher income groups, cigarettes could probably rise from 6p to 50p each; and there would be grumblings and frettings, and consumption would go on much as before. For those in the lower income groups, it would be a tremendous burden – and rightly seen as an unfair one. It would, moreover, give them a decided incentive to smoke each cigarette right down to the butt, where we are told the greatest concentration of toxic substances is to be found. It seems very likely that one of the most impressive effects of higher taxes would be an unequal incidence of smoking-related illnesses between the smokers of different income groups.
If these were the only unintended consequences of increased taxation, they might be sufficient in themselves to damn the whole scheme. But after a certain point, high taxation becomes wholly counter-productive. Taxes at any level could be levied on the tobacco sold out of the bonded warehouses. But, eventually the effects of prices made artificially high would begin to imitate those of an outright prohibition. There would be smuggling and illicit home production on a large scale, with all that means for crime, corruption and the customary restraints on use which now keep people from immoderate indulgence. In short, features which characterized the whole sad history of American alcohol prohibition would be repeated right here in Great Britain with tobacco.
(iii) Should Tobacco Companies Be Liable For Civil Damages?
Third, there is the imposition on the tobacco companies of civil law liability for any damages caused by smoking. Now, a distinction of vital importance must be drawn here. As a Conservative, I believe that disputes are best settled when left as far as possible to the adjudication of the ordinary Courts. There is a subtlety and individuality of regard for circumstances in the application of case law that a general statute can never begin to match. Take, for example, this Government's trade union reforms. Every previous attempt at bringing the unions within the law had failed. It was not for want of determination that they failed – though, I confess, this was ultimately lacking. It was because the means used were too crude. Rules of conduct were announced, and then imposed on the parties to a dispute, whether or not either wanted to follow them. The Prior and Tebbit Acts imposed nothing. They merely enabled the traditional remedies of our legal system to be sought against a hitherto privileged group. If a union today calls a strike without first holding a ballot, or sends out gangs of secondary pickets, nothing happens except by request of one of the parties. An Action is begun for damages. Interlocutory injunctions are sought. The matter is argued before a Judge, or terms of compromise agreed. That is all. Yet the success of these reforms has become self-evident. We are in the eighth year of sustained economic growth. Unemployment is falling speedily and steadily. This, and relations between management and unions are more harmonious than at any time within living memory.
Following this precedent, I would go further, and suggest that many other current problems could be solved in the same way. Industrial pollution worries me as much as it does many 'Green' activists. We often differ only in what we believe should be done about it. They seem mostly to want fresh anti-pollution laws, to be enforced by Government-appointed inspectors. My preference is for the acknowledgement that individuals have rights to clean air and water, and the extension of common law remedies to their enforcement.
Being no lawyer, I am naturally cautious when it comes to any discussion of jurisprudence. But I believe that what I want is no more than the application of old principles in new circumstances. What the anti-smoking lobby wants seems altogether different. Without naming individual cases, it is trying to assert the right of a smoker to contract any of the illnesses associated with tobacco, and then sue for damages. To me, this appears to breach a central principle of the law of torts – that where there is consent to injury, there can be no cause for action.43
Consider: I come into your house. In there, I pick up a bottle which is clearly labelled "Poison". You tell me "Don't drink that. It's dangerous." I hear you, but drain the bottle, and go down in a fit. To say that I – or my next of kin – should be able to sue you for damages on account of this would be completely absurd. I should be so much the author of my own distress that the laws against suicide would once have applied to me. The case is surely an exact analogy of smoking. The apparent dangers are widely advertised. Every packet carries a warning. Any responsible adult who smokes nevertheless, and is later diagnosed as suffering from heart disease or lung cancer or whatever, has every right to feel upset, but none to a remedy at law against a tobacco company. Consent may not have been explicit. The words "I don't mind shortening my life" may not have been uttered. But that consent is as evidently given as though it had been expressed by formal deed. Certainly, anyone whose cigar explodes, or in whose pipe tobacco shredded asbestos is found, should have a remedy. These are not among the advertised dangers of smoking. Here, the smoker cannot be said to have consented to injury. But these cases fall within an entirely different class.
Nor can it save the argument to say that tobacco is addictive, and that those smoking it, even if aware of the dangers, are unable to stop. In the first place, I have already indicated my doubts that smokers are as heavily addicted as is often claimed. In the second, even allowing that the fullest degree of addiction ever claimed might exist is only to shift the grounds of objection, not to change their validity. It is now at least thirty five years since the more serious medical warnings began to appear. Those who have started smoking since then have consented to their "addiction", and thereby to any subsequent effects. Those who began before then have had quite long enough to consider seeking assistance to break their habit, and, by not having sought assistance, have consented equally to whatever effects might follow. In fact, I should add that the concept of "addiction" is a very problematic one, certainly in the way it is popularly conceived, an habituation.44
For some, what I am saying may seem hard and uncaring. Some might think that I have a special fondness for the tobacco industry. I have none – or no more, at least, than I have for any other. As for being hard, I do feel the deepest personal sympathy for anyone who is dying or in pain. This is an absolute sympathy, given without regard to how the suffering may have been caused. But, on this point of legal liability, I fail to see how one person or group of persons can be blamed for the self-inflicted ills of another without an utter denial of human responsibility. And, as I have argued above, where there is no responsibility, there is no argument for freedom. A shape cannot at the same time be a square and a triangle. A person cannot at the same time be an adult and a child.
(iv) Restrictions on Public Smoking
Fourth, there are progressively severe restrictions on smoking in public places. Whether or not non-smokers are in any real danger, no one can deny that they often find smoke-filled rooms uncomfortable or offensive. Anyone with a chest complaint, indeed, is very likely to suffer immediate, if perhaps short-term harm. It seems only reasonable that there should be some places where smoking is not allowed – or rather, bearing in mind who the majority now are, to where smoking is confined. No one can object to a degree of separation.
Again, however, there is a distinction here to be drawn. What the anti-smoking lobby wants is compulsory restrictions. The model is the Californian 'Proposition Thirteen', a measure voted on by referendum in 1978. If accepted, this would have prohibited smoking by law in a great many places open to the public. The prohibition was to apply whether or not the owners or operators of those places wanted it, or whether or not those using them wanted it. The proposition was rejected. I am certain that any similar referendum in this country would go the same way. This particular violation of rights could only be enforced after an equal violation of democracy.
But, of course, there are restrictions on smoking, and these are becoming more complete. There are at the moment theatres, cinemas, buses, trains and so forth which are divided into smoking and non-smoking areas. In some places of work and in certain shops, and on the London Underground, smoking is altogether prohibited. These controls, if sometimes imposed by government bodies are a product of voluntary choice. They were imposed by the owners or operators in response to what they considered consumer preferences to be, and are enforced by them. They are a product of the free market. As such, they are entirely unobjectionable. A restauranteur has as much right to hang a 'No Smoking' sign inside his door as any other property owner has. Someone may feel put upon if not allowed to light a cigarette there after a meal, but, so long as the sign was on reasonably prominent display, has no right to complain; and, while two fifths of the population still enjoy smoking, there need be no shortage of restaurants where it is freely allowed. By the same reasoning, there need be no shortage – assuming a genuine demand – for any other place of business, travel or entertainment where smoking is or is not permitted.
What I have, in these pages, sought to argue is that to attack the right to smoke is necessarily to attack the freedoms for which our ancestors fought and suffered. It is also to show contempt for a system of government which – in spite of all its admitted faults – has been a model for half the world and is the present hopeless envy of the other half. I honestly doubt whether the right of one person to smoke infringes the right of another to enjoy a healthy life. But I have, nonetheless, assumed that this might indeed be the case, and have examined the variously canvassed solutions. Every one of them that depends on government coercion I have shown either to be useless or to be accompanied by unsupportable general costs. The only one that is likely to succeed relies on that spontaneous coordination of individual choices that is called the free market. Examine any problem, real or illusory, and, if the cause is freedom, its solution in nearly every case will be more freedom.
The founder of modern market economics was of course that great Scottish moral philosopher Adam Smith. Having emphasized the British conservative tradition, I should perhaps redress the balance by quoting the great French economist Frederic Bastiat. He made this very point repeatedly, and with great force and elegance. I might conclude by quoting him. Instead, I will simply follow his example, and quote the conservative writer Chateaubriand:
There are two consequences in history: one immediate and instantaneously recognized; the other distant and unperceived at first. These consequences often contradict each other; the former comes from our short-run wisdom, the latter from our long-run wisdom. The providential event appears after the human event. Behind men rises God. Deny as much as you wish the Supreme Wisdom, do not believe in its action, dispute over words, call what the common man calls Providence 'the force of circumstances' or 'reason'; but look to the end of an accomplished fact, and you will see that it has always produced the opposite of what was expected when it has not been founded from the first on morality and justice.45
1. Margaret Thatcher, In Defence of Freedom: Speeches on Britain's Relations with the World 1976-1986, London, Aurum Press, 1986, p.17.
2. As an instance of this, consider the following In the December of 1983, David Simpson, Director of the pressure group Action on Smoking and Health (ASH), claimed that smoking had killed the last four Kings of Great Britain. Writing in the Times for the 22nd of that month, Bernard Levin held this claim up to ridicule, calling its author a "reckless and absurd" fanatic. Indeed, its sole justification appears to have been – first, that each of those Kings was an occasional smoker, and, second, that each is now dead. Post hoc ergo propter hoc.
3. Figures quoted in H. Ashton and R Stepney, Smoking Psychology and Pharmacology, London, Tavistock Publications, 1983, p. 11.
4. Written Answer, Hansard, 19 December, 1988, p. 28.
5. Guardian, 31 March, 1977; quoted in Ashton and Stepney, op. cit., p. 140.
6. Quoted ibid, p.140.
7. Ibid, p. 141.
8. Ibid, p. 141.
9. Whitaker, op. cit., p. 153.
10. Ashton and Stepney, op. cit., p. 141.
11. Ibid, p. 142.
13. Whitaker, op. cit., p.149.
14. Ashton and Stepney, op. cit., p. 25.
15. Ibid, p. 24.
16. Whether or not smoking can ever be good for the health, giving up has certainly claimed at least one victim. There was an unfortunate lady in 1986, who stopped smoking, and promptly died of an asthma attack brought on by the resulting nervous agitation. See the Times, 17 October, 1986.
17. Ashton and Stepney, op. cit., p.25.
18. Times, 13 November 1984.1 have yet to receive one of these cards; but the publicity given the scheme might have been considered sufficient without going to the trouble of actually putting it into effect.
19. See Note 2 above.
20. Times, 20 January, 1987.
21. Reported in the Times, 30 January 1987. There is something splendidly ironic about the Party of the smoke-filled room solemnly discussing moves against the cigarette.
22. There is a copy of the Magna Carta on permanent display in the British Museum. Its Latin is not very classical, and its characters are hard to make out. But the 39th Article reads:
Nullus liber homo capiatur vel imprisonetur aut disseisietur aut utlagetur aut aliquo modo destruatur nec super eum ibimus nec super eum mittemus nisi per legale iudicium parium suorum vel per legem terr[a]e.
Roughly translated, this means
Let no free man be arrested, or imprisoned, or deprived of his property, or outlawed, or by any other means harmed – neither will we go upon him, nor will we put upon him – except by the lawful judgment of his peers, or by the law of the land.
Since 1215, this pledge has been ratified 37 times, most recently by Her Present Majesty at her Coronation in 1953.
23 J. S. Mill, Essay on Liberty, "Everyman" Edition, London, J. M. Dent and Sons Limited, 1977, pp. 72-3.
24. BBC Election broadcast, reported in the Times, 22 June, 1945.
25. Thatcher, op. cit., p. 16.
26. M. A. Plant, Drugs in Perspective, London, Hodder and Stoughton, 1987, p. 69.
27. D. Jay, The Socialist Case, London, Victor Gollancz, 1947, p. 258. Worth stressing here is that this was not some casual remark pounced on by a journalist and quoted out of context. It comes from the second revised edition of a book first published ten years previously, and is therefore the product of some consideration as to its meaning. There may be socialist libertarians. Jay was not one of them.
28. Times, 30 January, 1987.
29. Times, 14 January, 1987.
30. Quoted Whitaker, op. cit., p. 151.
31. Ibid, p. 152.
33. Times, 13 March, 1987.
35. Quoted in M. Friedman, An Economist's Protest: Columns in Political Economy, New Jersey, Thomas Horton and Company, 1972, p. 160.
36. Whitaker, op. cit., p. 137.
37. Times, 15 August, 1986. Not surprisingly the anti-smokers have actually distorted the evidence regarding the Norwegian case. Smoking had been steadily declining there anyway. The advertising ban produced no significant change in this decline, either way. Indeed, there have been greater decreases in smoking in countries without bans – like Britain – and no decreases in countries with bans or partial bans. See Michael J. Waterson, Advertising and Cigarette Consumption, Advertising Association, London, 1984.
38. T. B. Macaulay, Critical and Historical Essays, London, "Everyman" Edition, J. M. Dent and Sons, 1909, vol. 2, p. 209.
39. See, for example, the comments reported in the Times, 20 January, 1987.
41. E. Powell, Freedom and Reality, Surrey, Elliot Right Way Books, 1969, p. 133 et passim. See also Ulpian's slavish maxim: "quod principi placuit legis vigorem habet". See also, of course, Note 22 above.
42. See, as an example of this the Study of A. B. Atkinson and J. L. Townsend, summarised in Ashton and Stepney, op. cit., p. 146.
43. "Volenti non fit iniuria".
44. See Jara Krivanek, Addictions, Allen and Unwin, London, 1988.
45. From Mémoires d'outre Tombe, quoted in F. Bastiat, Selected Essays on Political Economy, trans. Seymour Cain, New York, The Foundation for Economic Education, 1975, pp.49-50.
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