Illiberal anniversaries

We’ve just had the tenth anniversary of the ban on smoking in all enclosed public places, and much has been written about its effect on pubs. Also, in a couple of weeks’ time, the UK’s Supreme Court will consider the legality of the proposed introduction of minimum unit pricing (MUP) in Scotland. Here’s my take on both:

Firstly, as a lifelong non-smoker I personally much prefer smoke-free pubs. And if I were going to die in a ditch defending the right of individuals to make free choices, the right to set fire to a paper tube containing tobacco and inhale the smoke wouldn’t be my starting point. But it is nevertheless the case an awful lot of hypocrisy is attached to the reasons given for the smoking ban. This was never really about protecting people against second-hand smoke, and the statistical case for the ill-health effects of second-hand smoke was always pretty dubious in any event. This was about stopping people from smoking by criminalising their behaviour if they did so in certain circumstances. The alleged ill-health effects of second-hand smoke on the rest of us were never more than a fig leaf.

Has the smoking ban been bad for pubs? Most commentators agree it has. If they are correct then I am forced to conclude the ban was introduced on the basis of a false prospectus when the real reason for it was to force smokers to quit, and the impact that has had on the pub trade is regarded by anti-smokers as acceptable collateral damage. The fact the template for pursuing the smoking ban has now been replicated by those who are similarly opposed to alcohol leads me to suspect the two groups of people have much in common.

There was no decline in smoking after the smoking ban in 2007 and I would suggest the drop in smoking prevalence since 2012 is mostly attributable to vaping. The “public health” community is very divided on the issue of vaping because it finds it hard to accept a private sector solution to a public health problem – one that involves enabling people to enjoy nicotine in a safer way is preferable to simply banning something.

I think there are many reasons why pubs have closed over the past ten years – supermarket pricing, the shift towards home drinking and the growth of home entertainment, a fall in the number of young people who drink alcohol – to name but a few. Some have called for a review of the smoking ban and the reintroduction of ventilated smoking rooms in pubs. I think it would be a mistake to refight yesterday’s battles, particularly when there are plenty of battles we need to fight today. Reversing the smoking ban is a lost cause and we need to reserve our powder and shot for more immediate problems.

One such problem is the possibility of MUP being declared “legal” by the UK’s Supreme Court. The Court is due to consider this matter on 24-25 July, with a decision published probably in the autumn. I’ve written more on the subject of MUP than any other single issue, at least in part because its introduction has become such a totemic issue for the neo-temperance crackpots of so-called “public health”. I’m opposed to MUP because I believe it’s a bad policy that will penalise responsible drinkers, and will not impact on problem drinkers who are overwhelmingly located in in the moneyed middle classes, not because I think it is unlawful. If it turns out it does offend against EU competition law then as far as I’m concerned that would be very helpful.

A minimum price for a unit of alcohol was introduced in legislation passed by the Scottish Parliament in 2012. Since then it has been the subject of legal challenge by the Scotch Whisky Association and others who argue the measure acts as the equivalent of a quantitative restriction on EU trade, for example, by penalising efficient wine producers who are able to reflect their efficiencies in the price charged for their product. It would appear the European Court of Justice (ECJ), and indeed the Scottish courts accept this is the case, but argue for a “public health” exemption. The ECJ has stated it is ultimately for the domestic courts of any member state to decide whether MUP is a proportionate measure, the health benefits of which couldn’t be achieved by some other, less trade-restrictive measure, such as duty rises.

The Scottish inner Court of Sessions concluded it was a proportionate measure and it met the test set by the ECJ, and it is that decision that is now being appealed and the UK’s Supreme Court will rule on. My gut instinct is the appeal will fail and this will open the door for MUP in Scotland, where it is already law. Wales and Northern Ireland also want to introduce this measure and if they do it would be very difficult for England not to follow suit. I fear this is another anniversary we may be marking in the future, and not one that should be a cause for celebration by the trade.