When is a ban not a ban?

Even when I started smoking at 18 I knew it was bad for me. It took me quite a while to take any notice of this fact but thanks to the smoking ban I haven’t touched a cigarette in four years and my antipathy is now such I even cross the street to avoid smokers. This was quite difficult on a recent trip to Austria where people still smoke all over the place. Why is that? Is it because Austrians don’t think smoking will make them ill? Or is it because they value personal choice over state intervention, even when that creates risks for public health? Or is it simply because they don’t think banning things works?

Austrians aren’t totally blasé about the dangers.  There are laws limiting smoking, but they are highly controversial and routinely flouted.  Smoking is prohibited in all offices but it is still allowed if all employees agree and while large restaurants and bars must have non-smoking rooms, owners of smaller outlets can choose to allow smoking or not.  Giving individuals the choice about whether to abide by a ban or not strikes me as a tad on the quirky side – a bit like lederhosen – and I would hate to be the only person in my workplace who wanted it smoke free, imagine the parties you wouldn’t get invited to.

I can see what the Austrians are trying to achieve with their interpretation of prohibition, but it does seem rather to undermine the whole point of banning smoking in the first place.  Perhaps the authorities just knew they were on a hiding to nothing and so decided not to try and go for an all out ban, which is a logical, even if potentially deadly, conclusion when it comes to outlawing smoking.

I find it baffling that something most people in the UK believe at least to some degreee, that smoking damages your health, carries such little weight in other countries.  I shouldn't pick on Austria, it certainly isn’t the only country with a somewhat schizophrenic attitude towards introducing and enforcing a smoking ban.  It does raise an important question though: what is the point of banning something if there is neither the will nor a way to police it?

Top legal blogger (and, I have to say, my favourite of the many), David Allen Green, wrote an interesting piece in the New Statesman blog about banning things.  He pointed out that forbidding something doesn’t stop it happening but assigns legal consequences to the action, for example a court order for damages or a prison sentence.  It is this criminalising of activities that will go ahead regardless that is at the centre of the debate over legalising drugs.  Those supporting the status quo say it sends a strong message about the danger of illegal drugs.  Those wanting to see some, or all, drugs legalised say it is criminalisation that causes so much of the damage.

Of course, you need to strike a balance.  There will always be people who want to steal things and always people who like to set fire to things, it doesn’t mean that robbery and arson should be legal.  Smoking was banned in public places in the UK because of the significant harm caused by secondary smoke and the fact that people often had no choice about being passive smokers.  If this was the case in an office or a bar, surely it must be doubly so in private cars?

That is the logic of the British Medical Association (BMA), which recently urged ministers to extend the smoking ban to all vehicles to protect drivers and passengers, especially children.  It argued that a car’s occupants are exposed to 11 times more toxins than they would encounter in a smoky bar and children are particularly at risk because they take in more chemicals from cigarettes than adults and may not have any choice but to travel in a  car with a smoker.

The government is unlikely to heed the BMA's call, saying it does not believe legislation is the most effective way to encourage people to change their behaviour (which is interesting since it is quite happy to ban other things, like referral fees).  Is this an acceptable response when children’s lives are at risk?  Probably not, but I seriously doubt that a ban on smoking in all vehicles is enforceable.  For every story I’ve read about someone being fined for eating a mars bar while driving (ok, just the one), I’ve seen a hundred people with a mobile while at the wheel, despite the introduction of tough penalties for doing just that.

Opinion polls show widespread support for banning smoking in cars carrying children, which is hardly surprising given the risks.  However, you then really have to ask what we should do about smoking in homes where there are children.  I don’t for a moment think this, or any other government, is likely even to entertain such a ban in the near future, but if the risks for children of breathing in second hand smoke are so high isn’t it something we should consider?

The problem here is not just about enforcement, which would, in any case, be nigh on impossible.  It is also about personal freedom and the right to a private life (although I am fairly sure that the right to smoke itself isn’t specified in the European Convention on Human Rights).  Whereas the government can reasonably make the argument that banning smoking in public places is justified in protecting the health and rights of others, it is less clear as to whether this could be extended to include private vehicles and homes.

As far as I am concerned, stopping people smoking, in cars or otherwise, is a desirable objective.  But I have to agree with the government on one thing at least, there is no point in outlawing something you don't have a cat's chance in hell of actaully stopping.  I suspect, although I don’t know, that one of the reasons the ban in Austria isn’t terrible successful is that there hasn’t been much in the way of a co-ordinated effort to persuade people to give up smoking.  Sometimes the stick isn't big enough to work without the carrot; and however noble the aims, just making something illegal isn't going to stop people doing it.






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