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Now that government is planning to ban smoking in the home it’s time for smokers to fight for their remaining liberties

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By Simon Davies

California is considering a bill that would create a state-wide ban on tobacco smoking in the home. While the legislation is at an early stage there’s every indication of a general lust for prohibition that will drive the law forward. As with any restriction on personal lifestyle, the implications for privacy and rights are huge.

Few governments have dared intrude so dramatically into the home, but in recent years California has never really distinguished the fine line between responsible public health and outright persecution.

The man behind the proposed law is Marc Levine D-San Rafael, a healthy-looking political newbie with a mediocre legislative track record but a loudly articulated zeal for public duty. He is, however, very good at banning things. Right at the moment he’s also crusading for a state-wide ban of plastic bags.

Few governments have dared intrude so dramatically into the home, but in recent years California has never really distinguished the fine line between responsible public health and outright persecution.

Unfortunately, this prohibition mania is going global. In the arena of tobacco regulation it’s too often the case that governments seek to prove a point rather than finding the best possible solution that preserves rights, health and dignity. One wonders what good can come, for example, of forcing smokers in Nairobi to stand in the middle of a busy road, or requiring smokers at Edmonton Airport to stand outside in temperatures of -20C or banning smoking throughout the entirety of a large public park. Whose interest does this serve other than the lust of  anti-tobacco zealots?

The almost unrestricted use of drug testing kits for nicotine, routine tracking of smokers by way of pubic camera networks, infiltration of social network profiles, banning images of smoking in films and establishing whistleblower and reporting hotlines are signs that a foundation has been established to institutionalise smokers as low grade criminals.In the arena of tobacco regulation

it’s too often the case that governments seek to prove a point rather than finding the best possible solution that preserves rights, health and dignity.

And on the subject of criminals, the UK government is planning on implementing a complete ban on smoking in prisons. Now that’s just vindictive. The move might well have been ripe for a challenge under the European Convention on Human Rights (ECHR) were it not that the UK intends getting out of the ECHR.

One of the gravest risks to liberty and rights occurs when government signals open season on smokers and permits uncontrolled intrusion to occur in the name of public health protection. In such instances government will set out a national framework of minimum requirements, but rarely will it create limitations on excessive controls that may be imposed by lower bodies. Such is the case with the Health Act 2006 in the UK.

There are countless such instances where restrictions on smoking are occurring without limitation, and where the resulting rules are both disproportionate and unfair.

One wonders what good can come, for example, of forcing smokers in Nairobi to stand in the middle of a busy road, or requiring smokers at Edmunton Airport to stand outside in temperatures of -20C .

The FAST National University in Lahore, Pakistan, for example, occupies a swathe of open ground with sparsely scattered buildings. Long roads and green fields create a spacious environment for the bustling institution. Here, at least 20% of people are regular smokers.

Despite the high incidence of the habit, the university decided to implement a no-smoking ban, not just in enclosed areas of the university, but across the entire precinct. Even in wide-open spaces far from any habitation, the practice is banned, forcing smokers to travel long distances to indulge, often in terrible weather conditions. The university authorities justified this policy on the basis that an example must be set, and a partial ban would be hypocritical. Hardship was an unavoidable consequence of wanting to smoke.

In a country that struggles daily at so many levels, the restrictions are seen by many staff and students as unfair, yet university staff are instructed to hunt for transgressors. Violation of the prohibition can have devastating consequences for students, many of whom are already facing high stress levels in their studies.

A similar motive created the outright ban on smoking at Hong Kong University. That institution sprawls across a steep mountainside, making travel from one side to the other extremely difficult. And yet, despite the Herculean effort required to walk to the far boundary of the institution, no arrangement was made to permit smoking even in a single designated zone within the university. The ban was seen as unnecessarily harsh, and staff and students routinely flout it. On my last visit there I heard of one disabled veteran academic who rather than face the ordeal of constant travel, resigned from the university.

It is not inconceivable that within a decade anyone suspected of being a smoker may be routinely subjected to polygraph testing, psychometric examination or third-party investigation.

Both bans highlight the dangers of asserting moral leadership at any cost. The initiative becomes unwieldy and quickly falls into disrepute. An example could have been set without the need to impose hardship, but in neither case did authorities intend to compromise. Hence, the rules, instead of being motivational, were seen as unnecessary, unfair and were therefore despised.

The unnecessary and disproportionate identification, monitoring, tracking and penalising of smokers is in part a repercussion of the creation of unfair regulations. That a government has nurtured such a situation does no credit to genuine efforts to promote better public health.

It’s not inconceivable that within a decade anyone suspected of being a smoker may be routinely subjected to polygraph testing, psychometric examination or third-party investigation.  Such is already occurring. The right to employment has already been compromised, as has smoking in some home environments. In the future smokers may face a choice between secrecy and social exclusion. Social organisations, landlords, service providers and employers may themselves be deemed irresponsible if they fail to pursue an exclusion policy.

The solution to this dystopia is not to withdraw from genuine efforts to deliver improved public health but to ensure that the measures adopted by government are tempered with reason and common sense. For all of us – smokers and non-smokers alike – the warning of US justice Louis Brandeis should never be far from our conscious mind: “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding”.