Twisted liberty

In November 2004, delegates from the World Health Organisation arrived in Malta for a two day forum on public health policy. By this time, the health lobby had come to view traditional values of individual choice as little more than a nuisance. There was no longer any question that public health organisations had a right and a responsibility to change behaviour by force of law rather than to merely advise and educate. With this consensus, discussion turned to how the overtly paternalistic agenda could best be presented to politicians, the media and - to a lesser extent - the public themselves. Since many of their policies remained controversial outside medical circles and were seldom embraced by the very people they were supposed to help, it was apt that the Malta conference was entitled 'Making Unpopular Decisions in Public Health.' As they breezily admitted: "Launching unpopular decisions is everyday business for top-level policy-makers in public health."(1)

Sandwiched between seminars on how to put a positive spin on closing hospital beds and charging for doctor's appointments, was a discussion of what lessons could be learned from the recent smoking ban campaigns in Ireland, Malta and Norway. The WHO, it was agreed, must be considered central to all decisions made and lobbyists should "quote the EU directives as often as possible." Freedom of choice was dismissed as "the usual claim" and delegates concluded that "feeling the pulse of public opinion may help but may sometimes mislead a politician...from a public health perspective this compromise may be too great."(2)

In the case of the flagship Irish ban: "Public opinion surveys were not conducted before the decision was launched...preparations were made to confront business, with plans for how to do this, so they did not get too strong."(3) Further, it was revealed that health lobbyists had been mobilised in Ireland to get the campaign well underway before the public was made aware that such a law was on the cards. Advisors from the US were brought over and legal officers were "available all the time." The public were ignored until the spin doctors had conducted a systematic PR exercise and businesses were contradicted, silenced or associated in the public's mind with the tobacco industry. This became the template for campaigns that followed in Scotland, Wales and England.

Also in 2004, the UK's Department of Health issued a White Paper entitled 'Choosing Health: making healthy choices easier'. In many ways it was a woolly, touchy-feely document full of New Labour's favourite buzzwords and a near-obsession with the word 'choice'. In this document lay the seeds of the UK's own smoking ban, at this stage proposed only for venues that sold food; the Department of Health's research had found that only 20% of the public supported a total ban. 'Choosing Health' also proposed a broadcast advertising ban for a whole range of food products at times when children were likely to be watching and greater restrictions on the promotion of alcoholic drinks. Warning labels on food and drink were recommended, concerns were raised about the presence of smokers in reality TV programmes and it was suggested that the public be issued with pedometers to encourage walking.

The report was released with some fanfare and much was made of its central message that a balance be struck between individual responsibility and state interference. Only those who read the Executive Summary that was sent to decision makers in the public health community (but not to the media) would have noticed that the document committed the government to a top-down public health policy the likes of which had not been seen in Britain for generations.

Looking back over the past century, the authors noted that "'public health' was often seen as something that was done to the population, for their own good, by impersonal and distant forces in Whitehall" (emphasis in original). The authors accepted that the Department of Health may have taken their foot off the pedal for a few decades but, with the NHS no longer constrained by underfunding, "the time is now right for action...For this White Paper, it is the public who have, for the first time, set the agenda and identified what 'for your own good' means, not Whitehall."(4)

What was most significant was that the document never questioned the "for your own good" mentality itself, thereby dispensing with the doctrine of individual liberty that had been dominant in Britain since the fall of Puritanism. The authors only claimed that theirs was a higher form of paternalism because it was the public who had "set the agenda"; as if public health policies dictated by the whims and prejudices of focus groups were any less intrusive or illiberal than those dictated by "impersonal and distant" bureaucrats. They could have saved a great deal of time and ink by simply quoting Oliver Cromwell's order that the English be given "not what they want, but what is good for them".


Public health and ethics


The Lancet celebrated the White Paper's commitment to banning smoking in English pubs (interestingly, it did not complain about the exemptions for 'wet' pubs at that time) but urged the government to go further, particularly with regard to diet and alcohol, and wrote an angry editorial lamenting what it saw as half measures. It congratulated the government for clamping down on tobacconists who sold to minors but described its reluctance to prevent 'junk food' retailers from selling their products to children as "defeatist and inconsistent."(5)

The Lancet concluded that the government had "embraced the arguments set out by John Stuart Mill in his essay 'On Liberty' in which he argued that the only justification for the state to constrain the actions of an individual were when an individual's actions risked harming others. As long as the individual is an adult, any action that results in harm only to him or herself is not a concern to others."(6) This was a fair summary of Mill's famous principle but it was hard to see how it had ever been "embraced" by a government which was proposing the least liberal health policies in modern British history and had created 3,000 new criminal offences in an unprecedented frenzy of legislation since taking office in 1997 (7).

It is fair to guess that Mill's ideas do not echo around the offices of The Lancet. The journal had recently recommended the outright criminalisation of tobacco and, in countering Mill's philosophy, they quoted Karl Marx who had said that societal and economic constraints made free will impossible. This broadly fitted in with the public health claim that people engaged in unhealthy activities due to their own ignorance and because advertisers told them to.

The Lancet shared the view of the country's Chief Medical Officer, Sir Liam Donaldson, who regarded the government's task as being not merely to reduce health inequalities but to eliminate them(8). Tasty political talk but impossible in practice. Not only is the notion of everyone sharing health equally a fantasy, but even an attempt to eliminate health inequalities would be totally incompatible with allowing people to 'choose healthy options.' If people are free to make healthy choices they must also be free to make unhealthy ones. Even the best informed members of society will take calculated risks with their health (smoking is common amongst nurses, for example) and health inequalities are inevitable in a free society.

Since it is unlikely in the extreme that every individual will make identical choices, only by forcibly imposing the lifestyles of those perceived to be the healthiest can this egalitarian scenario be even attempted. Total health equality, like total financial equality, can only be achieved by an all-powerful state with all the loss of liberty inherent in a totalitarian regime. Any public doctrine as dogmatic as this is inevitably at loggerheads with liberal democratic beliefs; The Lancet's invocation of Marx was therefore an appropriate one.

The Lancet editorial claimed that the government had a dilemma because those who complained about rail crashes were the same people who complained about the nanny state. This rather puerile comparison revealed a fundamental misunderstanding of the kind of libertarianism that Mill espoused. Any company that runs a rail service is expected to be competent enough to prevent their trains from crashing. Unless the company is negligent, there is no reason for them to crash, and so there is a reasonable expectation that rail travel is safe. But if the company fails to maintain the track or employs a drunk driver, it is responsible for the deaths of those who die in the resulting accident. It is precisely because other people would be directly harmed by their deliberate negligence or incompetence that their freedom to neglect the track and employ drunkards is curtailed. There is no comparison between such acts of corporate negligence and allowing an individual to eat french fries or drink wine.

Mill's basic principle has been criticised for various reasons, some valid, and Mill himself made certain exceptions, and yet few critics have been brave enough to dismiss the essence of his argument altogether. It is no coincidence that the world's greatest democracies have embraced his words while the worst tyrannies have ignored them. Mill died in 1873, just before cigarettes became widely popular, and he does not mention tobacco in 'On Liberty' at all. We do know that one of his last acts as an MP was to support an 1868 Bill in Parliament that designated smoking compartments in trains, a move in keeping with his live-and-let-live philosophy. Since he wrote at length, and disparagingly, about the Temperance and Sunday Observance movements, we can assume that he ignored the anti-tobacconists only because they were a very marginal group and because tobacco was not under any real threat in his lifetime.

We can only surmise from his writings about other issues how he would address a health hazard like the cigarette. He agreed, for instance, that if someone was about to walk over an unsafe bridge "and there was no time to warn them" an individual would be right to restrain that person. But he added that "when there is not a certainty, but only a danger of mischief, no one but the person himself can judge of the sufficiency of the motive which may prompt him to incur the risk" and he should "be only warned of the danger."(9) He also agreed that any saleable good that carried a risk to health should bear a label warning of the potential risks because "the buyer cannot wish not to know that the thing he possesses has poisonous qualities."(10) This suggests that had Mill lived in the 20th century his involvement in tobacco control would have ended after the appearance of warning labels and stop-smoking adverts. He did not approve of 'sin taxes' since he believed that artificially increasing the price of products to deter purchase was "a measure differing only in degree from their entire prohibition"(11) and, speaking specifically of alcohol, he considered using taxation to deter purchase to be a policy "suited only to a society in which the labouring classes are avowedly treated as children or savages."(12)

For Mill, it was crucial to have a basic principle to underpin lawmaking since, without it, democracies would always favour the prejudices of the majority and stamp on the rights of minorities. Unless politicians accommodated the needs and desires of all citizens, there would be no distinction between democracy and mob rule. This consideration is not always in evidence today when anti-smoking measures are passed.

By the early 1990s, Britain's railway companies had banned smoking in all but one carriage of their trains. Since no-one was obliged to travel in this carriage, the system accommodated smokers and nonsmokers alike. Within a few years, however, this final, solitary and isolated smoking carriage was abolished. Explaining their decision, Virgin trains announced that "most of our customers do not smoke and so we have decided to make all our services nonsmoking." This was an explanation that pleased the anti-smokers who had lobbied for the ban as much as it perplexed scholars of logic and was one small, modern example of the tyranny of the majority in action.

When an Australian council proposed banning smoking in a number of outdoor areas in 2007, the Mayor did not pretend for a minute that smoking in the open air harmed anyone but the smoker. Instead he justified the ban on the basis that nonsmokers like him were in the majority: "It's only the minority who are disadvantaged [by the ban]," he explained, "Smokers have become marginalised. This is mainstream."(13)

Mill's basic principle - that "over himself, over his own body and mind, the individual is sovereign"(14) - does not fit comfortably within the modern public health crusade. That said, the crusaders are still aware that individual liberty underpins so much of Western democratic thought that they dare not be seen to reject it in its entirety. Instead, they are forced to undermine and redefine it. This can be done by changing the definition of freedom or by explaining that 'old' ideas of liberty are no longer sufficient to tackle the unique perils of the modern world (15). This kind of talk should always raise suspicions. One edition of Mill's essay contains an editor's introduction which reminds us:


"Even those regimes which consistently and flagrantly violate the most elementary precepts of liberty feel obliged to pay lip-service to the idea by claiming for themselves another kind of liberty."(16)


And so the very cornerstone of the concept of liberty - that the individual is free to do - is perverted and reinterpreted as the freedom of others to prevent, protect and restrain. But liberty is not the freedom to choose one's master, it is the freedom to be one's own master and confusing the two is the oldest and most insidious distortion of the concept of freedom made by those who seek to erode it. The word 'smoke-free' is a fine example. As Mick Hume noted in the pages of The Times, this term would not have been out of place in the Newspeak dictionary of Orwell's 1984(17). As with 'newspeak' or 'doublethink', 'smoke-free' is made up of two old words (and is already losing its hyphen to become simply 'smokefree' in many parts of the world) but the original meaning of 'free' has disappeared. In Orwell's dystopia, the word 'freedom' has long since been ditched but the word 'free' survives, albeit in a very different context, as Orwell outlined:


"The word free still existed in Newspeak, but could only be used in such statements as "The dog is free from lice" or "This field is free from weeds." It could not be used in its old sense of "politically free" or "intellectually free", since political and intellectual freedom no longer existed even as concepts."


With this in mind, consider the following statement from the World Health Organisation's Expert Committee on Smoking Control:


"Freedom should be seen not as the freedom of the manufacturer to promote a known health hazard but rather as the freedom and ability of society to implement public health measures."


There is no acknowledgement here of the consumer's freedom to buy and consume tobacco; you might notice that the individual is not referred to at all. Notice, too, the manner in which the lawmakers of public health and "society" have become one and the same thing.

Or consider this anti-smoking proposal from Julian Le Grand, the Chairman of Health England, made in February 2008:


"Suppose every individual who wanted to buy tobacco had to purchase a permit. And suppose further they had to do this every year. To get a permit would involve filling out a form and supplying a photograph, as well as paying the fee... You've got to get a form, a complex form - the government's good at complex forms; you have got to get a photograph. It's a little bit of a problem to actually do it, so you have got to make a conscious decision every year to opt in to being a smoker." (18)


When Le Grand made this radical suggestion, the smoking ban had been in effect in England for eight months without bringing the smoking rate down to the desired level and a new wave of crackpot policies were being proposed to help the government reach its 21% target before the 2010 deadline. Even so, the idea of forcing millions of people to purchase a permit to buy a legal product was exceptionally draconian. Add to that the recommendation that the application form be made unnecessarily complicated (with the none-too-subtle implication that smokers would be too stupid to understand it) and one had the makings of an unashamedly illiberal proposal. And yet, not only did Le Grand refuse to view it as authoritarian, he actively sought to portray it as liberal by describing it as an example of "libertarian paternalism" - a piece of Orwellian doublespeak if ever there was one.


The debate within


Oddly enough, the international tobacco control community had their own debate about the value of individual liberty in a special edition of Tobacco Control magazine in 2005. Written by anti-smoking advocates and funded by the American Legacy Association, the various writers were clearly no more comfortable discussing libertarianism than professors of philosophy would be if asked to perform open-heart surgery. One contributor admitted that "the tobacco control community lacks a comprehensive understanding of ethics" and went on to candidly inform his readers that when it came to the battle against smoking "acting ethically may have short term costs."(19) The whole concept of individual freedom was discussed at one remove, examined as if it were some obscure disease and the whole debate was only ever framed in terms of whether this quirky ideology could be used to further the anti-smoking campaign.

Dr Jacobson and Dr Banerjee wrote: "An intriguing strategy that is gaining considerable scholarly attention is the use of human rights rhetoric."(20) There was no sense that the liberty of the individual had any value in and of itself nor that it had any great importance to the authors personally (those genuinely dedicated to human rights seldom refer to their beliefs as 'rhetoric'). There was, however, a dawning realisation that liberty was important to some people and that, as one contributor put it, human rights "rhetoric" could help "build on the gains already achieved."(21)

Theirs was, of course, a very different idea of liberty to that expounded by Mill. The idea that people smoked out of choice was dismissed with the well-worn claim that tobacco industry machinations made informed choice impossible. Property rights and freedom over one's own body remained subservient to what they called the "right to life", a right that public health would forceably uphold for individuals who were too "weak" or "ignorant"(21) to do so for themselves.

Such sophistry has its own internal logic and a superficial appeal. There is no right to smoke in the same way as there is no right to read, dance or play football but just because such activities are not specifically protected in a written constitution does not mean they can be snatched away at will. And while we should of course value life above all else, there is a gaping chasm between valuing life and single-mindedly pursuing a life free of even the slightest risk. The latter is irreconcilable with the right to liberty and a government that criminalises every mode of behaviour that carries a risk is incompatible with a free society, particularly when debased epidemiology can find risk in almost any activity. Under the precautionary principle, government is obliged to act even when risks are unproven and hypothetical and even when the risk is freely taken by a fully informed individual. When state-controlled public health policy reaches this level of intrusion, its proponents can hardly complain when they are called health fascists (predictably enough, one of the authors in the Tobacco Control supplement insisted that the term 'health Nazis' was coined by the tobacco industry).

Having decided that paying lip-service to individual rights "may be worthwhile adopting" because they "can lead to specific tactical advantages"(22), Dr J.E.Katz explained how they could be used:


"Policy could be framed so that smoking would not be permitted in co-occupied places, such as offices, sidewalks, and parks, but that appropriately informed adults could, with some restrictions, still be entitled to smoke in private."(23)


This, from one of the writers who was endorsing the individual rights argument! One could scarcely ask for a clearer demonstration of the gulf that divides the anti-smoking movement from civil libertarians.



Christopher J. Snowdon is the author of Velvet Glove, Iron Fist: A History of Anti-Smoking

www.velvetgloveironfist.com

References

(1) 'Seventh Futures Forum on Unpopular Decisions in Public Health', A. Arnaudova, WHO (Europe), 2005

(2) Ibid.

(3) Ibid.

(4) 'Choosing Health: Making healthy choices easier - Executive Summary', Department of Health, 16 November 2004

(5) 'Choosing health? First choose your philosphy', The Lancet, 365; 29/1/05 p. 369

(6) John Stuart Mill, 'On Liberty', Penguin, London, 1974 (first published 1859)

(7) Eurohealth, No. 11, Vol. 4, 2005, 'Health inequalities under the UK presidency', p.1, Liam Donaldson

(8) Mill, p. 166

(9) Mill, p. 166

(10) Mill, p. 170

(11) Mill. p. 172

(12) 'Councils push to stamp out outdoor smoking', Sydney Morning Herald, Sunanda Creagh, 14/9/2007

(13) Mill, p.69

(14) As far back as 1980, Margaret Thatcher's junior health minister explicitly challenged Mill's principle, saying: "The traditional role of politicians has been to prevent an individual causing harm to others, but to allow him to do harm to himself. However, as modern society has made us all more interdependent, this attitude is now changing."* It was questionable whether people were really more "interdependent" on each other than in their grandmother's day, but the point was nonetheless made that established principles of personal liberty were not relevant to contemporary society. *Quoted in Heather Ashton and Rob Stepney, 'Smoking: Psychology and Pharmacology' Tavistock Publications, London, 1983, p. 144

(15) Mill. p. 7, Introduction by Gertrude Himmelfarb

(16) 'Am I guilty of oldthink or is this sensefree?', Mick Hume, The Times, 27/6/07

(17) '£10 government permit plan to deter smokers', The Guardian, John Carvel, 15/2/08; BBC.co.uk/news, £10 licence to smoke proposed, 15/2/08

(18) 'Framing Tobacco Control efforts within an ethical context', B. J. Fox, Tobacco Control 2005;(Supp. II)ii38-ii44

(19) 'Social movements and human rights rhetoric in tobacco control', Jacobson & Banjeree, Tobacco Control, Supp II, ii45-49

(20) Ibid.

(21) 'Individual rights advocacy in tobacco control policies: an assessment and recommendation', J. E. Katz, Tobacco Control 2005;14(Supplement 2 ):ii31-ii37

(22) Ibid.

(23) Ibid.