The BMA’s permanent smoking ban

The British Medical Association have voted ‘overwhelmingly’ for a permanent ban on anyone born after the year 2000 buying cigarettes. I have some things I want to say about this.

First, it is probably illegal. Second, it would in practice prove to be wholly unenforceable. Third, it is dangerously authoritarian, in that it runs counter to the principle on which our entire modern civilisation rests: that adults are autonomous individuals, possessed of the right to act in accordance with their own free will, where such actions do not impinge on the autonomous freedoms of others.

The ban would probably be illegal

The ban is not to apply equally to everyone, but is to apply only to a subset of the population, selected on the basis of their date of birth. There is only one possible way to describe this: it is age discrimination. There is no rational reason – no objective justification – for a total ban to be introduced in this way, since the effect of tobacco on the body of someone born at 2359 on 31/12/99 is no different to its effect on the body of someone born at 0001 on 01/01/00.

The lack of an ‘objective justification’ is significant, because that phrase is taken from the official government guidance on the age discrimination provisions in the Equality Act 2010.

The Equality Act 2010 includes provisions that ban age discrimination against adults in […] public functions. The ban came into force on 1 October 2012 and it is now unlawful to discriminate on the basis of age unless:

  • the practice is covered by an exception from the ban

  • good reason can be shown for the ban (‘objective justification’)

There is no exception for health policy; on the contrary, the guidance specifically warns that ‘any age-based practices by the NHS and social care organisations need to be objectively justified’.

I’m not a lawyer, but it seems to me that the whole point and purpose of these provisions in the Equality Act is to prevent adults from being discriminated against on the basis of their age. And that is precisely what the BMA have resolved to seek: discrimination against certain adults on the basis of their age. At the very least the two things are not easily reconciled; it seems likely, in my wholly non-expert opinion, that the BMA have resolved to lobby for something that is simply illegal.

It’s not at all hard to understand why the BMA have chosen to single out young people in this way. They are presuming that the very general contempt for young people and their rights the widespread tendency, especially on the part of the media, to feel that someone aged 18 doesn’t really deserve the same respect as someone aged 58 – will mute the outrage that would be expressed if older people were to be included in the ban from the outset. But the fact that this approach is politically astute does not necessarily mean that it is legal, and it certainly does not mean that it is either ethically justifiable, or practically enforceable.

In practice, the ban would be unenforceable

The law already bans the sale of cigarettes to those aged under the age of 18, but this has not meant that people younger than this have stopped smoking. In fact, even the doctor who proposed the permanent ban at the BMA conference, Tim Crocker-Buqué, explicitly recognised that many people start smoking well before this:

Smoking is not a rational, informed choice of adulthood. Eighty per cent of smokers start as teenagers as a result of intense peer pressure. Smokers who start smoking at age 15 are three times as likely to die of smoking-related cancer as someone who starts in their mid-20s.

Dr Crocker-Buqué’s own words make it clear that legal prohibitions are an ineffective means of eradicating smoking. And if a ban on the sale of cigarettes to people aged under 18 has miserably failed to prevent people aged under 18 from smoking – and evidently even Dr Crocker-Buqué accepts that it has – then simple logic confirms that a lifetime ban on people born after 2000 will prove equally ineffective. It’s also hard to see how a legal prohibition will do anything to address what he has himself identified as the primary reason young people start to smoke: ‘intense peer pressure’. In fact the strengthening of the legal prohibition is likely if anything to increase the illicit glamour of smoking, and therefore to increase the peer pressure.

The reasons the ban on under-18s buying tobacco has proved ineffective at preventing under-18s from smoking are several. Its partly that the law is significantly under-enforced, with the result that retailers know they are unlikely to face consequences for selling tobacco to someone they shouldn’t. It’s partly that some people who start smoking do so at home, with cigarettes that are handed to them by their parents. And it’s partly that some people who are prevented from legally purchasing tobacco products are able to persuade others to buy them on their behalf. All of these factors will apply equally to a lifelong ban on all those born after 2000.

But there‘s also another major reason that a ban will be even more ineffective when it targets adults. Presumably the BMA are not proposing that people born after 2000 are to be exempted from EU rules that allow a citizen of any member state to travel to another member state and to return with goods bought for their own personal use, or from the EU rule that allows a citizen in one member state to order goods online from another (subject to excise duties being paid, where appropriate). Of course, while these provisions remain in place, any ban could only prove effective if it was applied equally in all member states. For so long as even one member state has failed to enact it, adults who are prevented from buying in one will simply buy from another, either in person or online.

Or, rather, that’s what adults who are concerned to stay on the right side of the law will do. Others will buy from the black market. The black market in tobacco is already thought to be large and lucrative, when it is fuelled only by price. When there is a large section of the adult population that is entirely forbidden from buying tobacco – a section that will grow larger with each succeeding year – the market will only become more lucrative, with the result that there will be greater incentives for criminals to take the risk of being caught. Far from creating a “tobacco-free generation” this will create a generation who buy their cigarettes away from the legitimate market – and thus will not pay the taxes that fund the medical care they may require as a result of smoking.

The ban is dangerously authoritarian

I, myself, do not smoke. I do not dispute the finding that half of all smokers will die of a smoking-related illness, nor that smoking on average shortens a person’s life by 10 years. My own dad smoked from the age of 14 until his death at the age of 68 from a heart attack (he died with a cigarette burning itself to nothing in the ashtray by his side; cigarettes killed him, and the last cigarette he lit outlived him). By the time he died he had been hospitalised on several occasions over many years, and was suffering from COPD, vascular dementia and heart disease – all of them known to correlate with smoking. Barely a week passes when I do not mourn his needlessly early passing, even though it happened nigh-on 12 years ago.

Believe me, then, when I say that I do not need to be persuaded that smoking is extremely unwise. The point is that – if they are to be free – adults must have the freedom to act unwisely, if that is their choice. We may wish that people would not act unwisely, as I wish that my father had not. But that does not change the fact that it is their own body that a smoker is poisoning, and their own life that they are cutting short, and as autonomous adults they have the right to do both.

We should not ban people from smoking for the same reason that we do not ban abortion or homosexuality – because each person’s body is their own, to do with as they choose, no matter how strongly some may disapprove. And we should not criminalise smoking for the same reason that we do not criminalise suicide – because people’s lives belong to themselves and (provided they are not in the grip of some condition that temporarily masks their underlying wish to live) a person’s right to fully possess their own life must include the right to take deliberate steps that will bring it to a premature end.

I have no doubt that most of the doctors who voted for the BMA resolution did so for the very noblest of reasons – to preserve life, to eradicate the physical and emotional suffering caused by avoidable illness, to extend healthy lifespans. The problem is that, in the grip of their noble sentiments, they have lost sight of a simple fact: that doctors have no more right than anyone else to impose their own will on another. As a civilisation we have decided that to be an adult is to be an autonomous, self-determining individual. And – in the same way that the principle of free speech includes the right to say things with which we disagree – the right to self-determination includes the right to make choices of which we disapprove.

It is, of course, legitimate to ensure that tobacco is taxed sufficiently to recover the costs associated with its use. Smokers should reasonably expect to meet, collectively, the medical and social costs that result from smoking. And an individual’s right to poison their own body and cut short their own life of course does not extend to the right to do those things to other people, or encourage them to do those things to themselves – hence the reason smokers cannot reasonably expect to smoke in enclosed public spaces, and tobacco companies cannot reasonably expect to advertise their products.

But, fundamentally, those adults who choose to smoke must be free to continue to do so. To deprive someone of their right to make certain choices is in practical terms to remove from them their right to choose at all (“you can do whatever you like, so long as you only like to do what we allow”). And to deprive someone of their right to choose is to deprive them of their right to function as autonomous, self-determining individuals. It is to treat them as less than fully human. That’s a dark and dangerous step to take, one that doctors – who, as the GMC make plain, are required to respect the right of each individual to make decisions regarding their own health – should be especially wary of taking.

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