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November 19 2004

http://www.timesonline.co.uk/article/0,,1059-1364926,00.html

Join the beer and fags club

Simon Jenkins

You are free under law to risk your own health, unless you want to take drugs or hunt foxes

THE RAIN is falling. Hunting will be banned. Smoking is driven underground. Casinos are opening and churches closing. Through the gloom I see a Guardian writer demanding that middle-class nannydom be made compulsory for all. Truly the skies are darkening overhead. Whether or not people hunt is a matter of supreme indifference to me. But when people are banned from hunting it becomes a matter of supreme importance. Talk of fox welfare is piffle. An urban House of Commons wants to stop foxhunting for the same reason a rural one stopped cockfighting and ratting in the 19th century. It thought killing animals, even pests, for pleasure was bad for the moral health of those participating. Even Trollope thought parsons should not hunt. That argument may be reason for censure. It is no reason for criminalisation. Foxes are not human beings.

Yet elsewhere in liberty’s embattled kingdom there appears a ray of hope. Mark with care this week’s statement from John Reid, the Health Secretary, on smoking. With the excitement of Archimedes in his bath, Mr Reid claimed to have discovered the golden mean, “the balance between protection for the majority and personal freedom for the minority”. His new theorem holds that “you are free under the law to do things that risk your own health. What you are not allowed to do in a civilised society is things that damage the health of others and do things that cause discomfort to others.”

This is an almost exact plagiarism of John Stuart Mill. He wrote that “the only purpose for which power can be rightfully exercised over any member of a civilised community against his will is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.” A person’s freedom to do what he wants, said Mill, should be limited only insofar as “he must not make himself a nuisance to other people”. Mr Reid professes to agree.

Hence smoking may be a nasty, smelly, NHS-crippling habit. It may cause 50,000, or any number of, deaths a year. But provided that it does no harm to others, it is not to be illegal. Accordingly Mr Reid will license “smoking pubs” and clubs for consenting adults, in isolated premises where no food is served. Why no food is beyond me. It is as if nanny were saying, “You will go to bed without your supper!” I suspect the intervention of the Union of Government Inspectors, Regulators and Meddlers, the Arthur Scargills of our age, always on the lookout for work.

The Health Secretary is in truth honouring a great British tradition, the democracy of the club. Clubs include and exclude. They allow in the particular what may be disallowed in the general. In Britain clubs may discriminate openly by gender or “affinity”, or secretly by religion, race, class or age. They thus give colour and contour to the body politic. The club, as Mr Reid implies, is a mature way of balancing the rights of minorities against the wishes of majorities.

So far so good. But this pluralism must be consistent. We cannot have a club to satisfy practitioners of one nuisance habit yet deny it to others. If we are to grant club status to nuisance smokers, why not corral nuisance drinkers or give club status to recreational drug-users? The use of cannabis, Ecstasy and cocaine are, as Mr Reid would surely admit, a risk to personal health, but one that in no way “damages the health of others or causes them discomfort”. Cannabis use is on the right side of Mr Reid’s balance. Indeed by taxing nicotine and leaving cannabis untaxed Mr Reid appears biased against the former.

And what of yesterday’s big news, foxhunting? It is no threat to health, except of those who ride. It discomforts nobody and gives evident pleasure to many. While a majority of the Commons may want it banned and, as Disraeli said, “a majority is always the best repartee”, that is not the view of a public majority. Sixty per cent would accept foxhunting under licence. So we are to have clubs for smokers and not for riders to hounds. We are to have clubs for gambling addicts but not clubs for drug addicts.

This is legislative hypocrisy. Mr Reid snatched at Mill not because he is a libertarian but because he needed a thought-bite against his opponents. Political principle was here the servant not the master of political practice. Mill was merely a quotation from a dictionary in the minister’s hour of need. Yet Mr Reid’s much cited doctorate is in economic history (which should be in every school curriculum). He must know that when governments act contrary to human inclination, they distort markets and promote lawbreaking. That is already happening with drugs and will happen with hunting.

In the case of smoking, Mr Reid has proclaimed a “balance” between discipline and liberty. In the case of hunting and drugs he and his colleagues are doing the opposite. Last year the Government considered licensing foxhunts, making them a regulated, in effect a club, activity. It then funked