Tatiana (Year 12)
Editor’s note: Year 12 student Tatiana submitted this essay into the prestigious Robert Walker Prize for Essays in Law by Trinity College, Cambridge. This essay demonstrates strong academic writing skills, particularly in its structured argumentation and engagement with legal precedent. The discussion effectively balances ethical concerns—such as privacy and autonomy—with practical enforcement challenges, showing a nuanced understanding of legal frameworks. The writing is methodical, referencing case law and statutory provisions to support claims. Overall, this piece reflects critical thinking and a solid grasp of complex legal issues, making it a well-researched contribution to the debate on tobacco regulation. CPD
The 2008 smoking ban, prohibiting the sale of tobacco products to anyone born on or after 1st January 2009, if passed would be the ‘most significant public health intervention in a generation’ . However, the ban which is part of England’s tobacco endgame policy, would simultaneously be viewed as one of the most radical, controversial and strict tobacco control policies globally. Raising questions around England becoming a ‘nanny state’ and the extent at which individual freedom is being curtailed to achieve a public goal. Consequently, there are two main threads of the argument which one must distinguish between to fully understand the legal implications of such a policy. The first thread is the ethical legal issues revolving around privacy rights, individual liberty, and age discrimination. The latter is the practical legal issues which would hinder the establishment and enforcement of the ban, such as the creation of a ‘grey market’, and increased black market concerns.
One of the most crucial legal issues surrounding the ban is around privacy rights. Article 8 (1) of European Convention on Human Rights (the Convention) provides that ‘everyone has the right to respect for his private and family life, his home and his correspondence’. Smokers’ lobby groups such as Forest utilise privacy as a legal principle arguing that a smoking ban infringes upon their privacy rights in their private life and home, connecting this infringement to interference with their autonomy. However, to examine how strong a privacy rights argument would be in a court of law it is crucial to outline that privacy is a qualified right. Ergo, if justified the state can intervene in the interests of the legitimate objective set out in Article 8 (2). According to Article 8 (2) of the Convention ‘there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society…for the protection of health’. Given that, Sunak’s policy is founded upon protecting the health of the younger generation and those to come, there are strong grounds for the ban. Consider that the policy will remove the harms of active smoking and second-hand smoke to all individuals. These said grounds are incredibly hard to dispute by referring to individual liberty and privacy rights.
The case of R(N) v. Secretary of State for Health demonstrates that privacy, in certain circumstances, does not take precedence over public health. The facts were that smokers who were or had been detained in Rampton hospital, a high security psychiatric hospital, appealed the Division Court ruling that banned smoking in mental health facilities. The appellants challenged the government regulation ‘based on the right of privacy in the home and the right to protection against discrimination against mentally ill persons.’ The defence availed. The Court dismissed the challenge concluding that the appellants’ case referring to Article 8 (1) of the Convention was not strong enough. Lord Justice Pill and Mr Justice Silber further concluded that the dismissal could be justified by Article 8 (2). The case states that it was confirmed that the smoke-free policy introduced on 31 March 2007 at Rampton led to ‘health benefits such as fewer problems and medication related to asthma and respiratory diseases.’ The prior evidence was used to reinforce Article 8 (2). In reality, as illustrated through the legal precedent in the case law above, privacy rights can be dismissed when the state has objective justification to dismiss them on the grounds of protecting public health.
One may discern that another contentious issue with the 2008 smoking ban is that it could be perceived as age discriminatory given that it draws an arbitrary line between those born before 1st January 2009 and those on or after the day. Unlike the definite line drawn between child and adult which many legal policies revolve around, a somewhat nonsensical boundary has been drawn between pre-2009 cohorts and post-2009 cohorts. The Institute of Economic Affairs, a critic of the ban, depicts a bizarre example of the impact of it: ‘in 2030, 22-year-olds will be able to buy any tobacco product, while 21-year-olds will be allowed to buy none’. Under section 4 of the Equality Act 2010, age is a protected characteristic and there could be possible legal action taken against the government. The defendant’s argument states that the policy is an act of discrimination on the grounds that it is treating the post- 2009 cohort less favourably than the pre-2009 cohort because of a protected characteristic. It is plausible to consider that this would likely cause friction between the different societal groups and be a further cause for anti-smoking groups to campaign for a ‘level playing field’, demanding a nation-wide smoking ban. This would only further exacerbate the legal issues which the generational ban would face.
Insofar this essay has only considered legal issues surrounding smoker’s rights; however, it is imperative to also discuss non-smokers’ rights and the defence the government might use in relation to these rights. ‘Smoking is the UK’s biggest preventable killer, causing around 1 in 4 cancer deaths’ (according to the government’s website). The dangers of smoking to the smoker and the indirect harm caused to the victims by second-hand smoke are unprecedented. As science progresses it only sports further evidence that the consequences of smoking tobacco are wide and disastrous. From the Government’s White Paper produced in 1998 titled “Smoking Kills” which acknowledged and protected workers from the danger of second-hand smoke to the Khan report which is now being used to develop Sunak’s policy. Essentially, the point is that nowadays there is an insurmountable amount of evidence available on the dangers of smoking. Thus, it is part of the government’s responsibility to ban smoking and protect the future generations. The defence may argue that it has an ethical and legal duty to ban smoking under Article 2 of the Convention, which provides that ‘Everyone’s right to life is protected by law. No one shall be deprived of his life intentionally’. If the government does not make this policy, but it is aware of the consequences of smoking, it may be held liable for depriving people of their life. One can follow the trend in smoking legislation to see that as the government has become more aware of the dangers of smoking they have passed legislation to protect anyone who was affected by it. In 2006, legislation was passed against smoking in workplaces and public places as part of the Health Act 2006. In 2014, as the dangers of smoking became more known, the Children and Families Act 2014 amended the Health Act 2006 to allow regulations against smoking in private cars. In this instance, privacy rights were again dismissed by an objective justification on the grounds of public health. Therefore, one may conclude, overall, that it is natural to introduce the 2008 smoking ban on the grounds that it aligns with the fundamental right to life, but that it is simultaneously a natural progression in the trend of smoking legislation to protect the future generations.
A practical legal issue that might arise is the creation of a ‘grey market’ where anyone born before 2009 will purchase tobacco products to sell or give to those targeted by the ban. Known as proxy purchasing, this will be criminalised by the government; however, the main issue present is that this criminalisation is mostly symbolic as there is no current concrete way to stop it, given that enforcement is the duty of trading standards and not the police. Whilst smoking itself is not criminalised, but the selling of tobacco products is, proxy purchasing undermines the government’s aim to better public health which is the basis for the decision to implement the ban in the first place. Effectively the post-2009 cohorts can still suffer from the adverse benefits of smoking tobacco such as increased risk of heart disease, cancer and for pregnant women, stillbirth. Moreover, what preventative measures are there to stop the illicit trade of cigarettes on the black market? If proxy purchasing is indeed successfully criminalised, this might lead to the development of black market trading in cigarettes. Sceptics who believe this is too drastic and speculative a notion, may wish to refer to the phasing out nature of the ban. Arguing that the majority born after 2009 will not desire to smoke as it will be ‘de-normalised’ , so they will not need to access the black-market avenue. Whilst this is a fairly legitimate claim, it does not guarantee that people will not still reach out to the black market anyway to satiate their desire to try something prohibited, potentially leading to a downward spiral of addiction. According to the government’s ‘Stopping the start’ proposal they are ‘legislating to create a smoke-free generation’, this will never come into effect if in the transition years proxy purchasing and illicit trading fail to be cracked down on.
Overall, it is logical to conclude that the potential ethical issues that might arise from the 2008 smoking ban would revolve around privacy rights, autonomy and age discrimination. Despite the grounds the government have made in favour of the proposed law, the ban could be disputed for the aforementioned reasons. However, it is notable to address that the Conservative government would have a strong defence for the policy on the grounds of case law precedent, statute law from the Convention, and the trend of current smoking legislation. The other thread of the argument revolving around practical legal issues is equally significant, given that the government’s proposal does not properly address how to successfully stop proxy purchasing and the development of illicit trading, which would hinder the effective transition to a smoke-free generation.
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