The right to not smoke if you don’t want to…..

Discussion of smoking and human rights tends to split into irreconcilable “right to smoke” and “right to health” camps. In reality a rights-based approach to smoking provides a powerful opportunity for health campaigners, but it also imposes standards and limitations on how we act to bring about change in other people’s lives.

From our ASH cousins in the United States —

To have a “right” to something simply means that you have an entitlement or valid claim to it. It is, in other words, right or correct that it happens. More formally, a “legal right” is something that you are entitled to according to the law.

“Human rights” are something more — these are rights that every human being is entitled to, that set out a minimum standard of treatment that cannot be changed or removed. Most relevant to this discussion are the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights (both agreed at the United Nations).

Health and social care provision in Scotland is increasingly framed in terms of rights, setting out how care, benefits or other support are rights to be expected and demanded rather than charity to be offered or requested. For example, rather than setting out what services will be provided, Scotland’s new Health and Social Care Standards focus on what the service user will experience — “I am respected and treated with dignity as an individual”, “My privacy is respected”, “I receive the right information”, “I am supported to make informed choices” and so forth.

ASH Scotland’s work is increasingly carried out in a context where service providers (and their clients) understand and articulate a rights-based approach. The starting point is the needs and wishes of the client, with corresponding rejection of imposed, top-down solutions or of telling people what to do — for example the headline mission of the Mental Welfare Commission is set out as “We protect and promote the human rights of people with mental illness, learning disabilities, dementia and related conditions.”

If this is the language and framing that so many of our partners are using, then we need to be able to articulate our work in a rights-based framework too. And we can do that.

We have previously rejected the idea of a right to smoke, and so too have the Scottish courts. We certainly do accept the right to self-determination but these are two different things — some people choose to ride motorbikes or take holidays abroad, yet the established “right” is to self-determination in general rather than to have foreign holidays in particular.

There is definitely a right to health, to the extent that the relevant UN Committee says that “failure to discourage production, marketing and consumption of tobacco” constitutes a violation of governments’ obligation to protect citizens under Article 12 (right to health) of that International Covenant on Economic, Social and Cultural Rights. In other words governments who do not act to protect their citizens from the harm caused by tobacco are violating their citizens’ right to have their health protected.

However having an agreed right to health does not give us freedom to do whatever we like in the name of health. A rights-based approach usually involves a careful balancing act between competing rights — and human rights in particular are nothing if not a protection of the vulnerable from the actions of over-reaching governments.

Protecting children from the commercial interests who would profit from hooking them on nicotine is fairly clear cut. The UN Convention on the Rights of the Child applies to everyone under the age of 18 and has that “Parties undertake to ensure the child such protection and care as is necessary for his or her well-being”, “the best interests of the child must be a top priority in all decisions and actions that affect children” and “every child has the right to the best possible health”. This easily trumps any commercial right to freely market products and clearly justifies, for example, a ban on selling cigarettes to under-18s.

The situation for adults is more nuanced, with the Universal Declaration of Human Rights stating that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence”. The crucial word here is “arbitrary”, imposing the clear condition that any actions must be reasonable and proportionate. As taking a rights-based approach usually means balancing competing rights, adopting a rights approach is not a short-cut to justifying any and all public health action, but rather means proactively weighing up the different rights affected by any proposal, and ensuring that overall the proposal enhances rights more than it denies them.

For example, ASH Scotland believes that it is justifiable to ban smoking in all enclosed public spaces because the choice any individual might make to smoke in that space is outweighed by the right of others to be free from the proven harm caused by second-hand smoke.

There are other tobacco control proposals for which a rights-based approach is more challenging. The Tobacco 21 idea of raising the legal age of purchasing tobacco to 21 can be reasonably expected to reduce smoking and hence to improve health, but against this health gain we must consider the adult right to self-determination (with 18 being the accepted age of attaining adulthood).

Similarly the idea of banning smoking in the home rests on the entirely valid goal of protecting children from second-hand tobacco smoke. Yet the actual benefit would be the (entirely uncertain) additional benefit of moving from the current voluntary/supportive approach to a legislative one. This must be weighed against the cost of state intervention in family life, the risk of alienating vulnerable families from support services (who might be perceived as enforcing the ban) and the harm caused by imposing penalties on a group which all our research suggests already want to protect their children but struggle to do so. This is why ASH Scotland does not support this idea.

So while the human right to health can be a powerful argument demanding action to reduce the harm and inequality caused by smoking, it comes with a sting in the tail — our action needs to be proportionate and to respect other rights.

This is a limitation ASH Scotland is comfortable, and confident, in accepting.