15 February, 2006: Nil combustibus Profumo

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... or, as Flanders and Swann explained, ``There's no smoke without fire.'' So, it has been a bad week in the House of Commons, with MPs voting to make identity cards compulsory for the passport-carrying public and making it an offence to ``glorify terrorism'', which activity includes, absurdly, praising British and American troops for liberating Iraq from the dictatorship of Saddam Hussein.

But since I've gone on about both of those at considerable length before, I'm instead going to talk about the Health Bill, which is the measure which will ban smoking in, as the papers have variously reported,

Each of these reports has one important feature in common: they are simply not true. The Health Bill as voted on in the Commons yesterday will ban smoking almost everywhere, including in your own home. (I have mentioned this before on my linklog and elsewhere.)

What the Bill does is to ban smoking in (``designate as smoke-free'' in the ugly language of the measure) anywhere which is ``open to the public'' -- which includes a place open to the public by invitation, such as your home -- whenever members of the public are present; and anywhere which is used as``a place of work by more than one person (even if the persons who work there do so at different times, or only intermittently)'' -- which includes, say, a house where employees of your gas, water and electricity suppliers come to read the meters on different days.

Now, ministers have promised that they will use the power in s.3 of the Bill to exempt by order certain places, such as private homes, from the restrictions. (It was an argument over what types of places such orders may or may not exempt which consumed much time in the Commons and space in the press earlier in the week.)

You may, or may not, think that the difference between a law which bans something everywhere and creates scope for ministers to unban it in some places -- perhaps before the ban comes into force, perhaps after, and perhaps not at all -- is materially different from one which bans something only in certain places. I certainly do; what is given by Statutory Instrument may be taken away by Statutory Instrument; and a promise by a minister is not worth all that much these days.

This is nothing new; the Identity Cards Bill, for instance, contains something like sixty powers to vary things by ministerial order (sometimes with, and sometimes without, the consent of Parliament). But, of course, the government has now seen an opportunity for further tidying-up, in the form of the Legislative and Regulatory Reform Bill, which will permit ministers to pass the vast majority of legislation by means of Statutory Instruments with no proper scrutiny by Parliament, and would if passed certainly allow the designation and undesignation of ``smoke-free places'' on a ministerial whim, whatever the Health Bill itself said.

As others have pointed out, ``Leg and Reg'' is the mother and father of all Henry VIII clauses; but like most recent amendments to our constitution, it is being done rather stealthily. Particularly clever, of course, is the name, for who could be against regulatory reform? The government have spun the Bill as being a measure to cut red tape, and a lot of otherwise sensible people, and the CBI, have swallowed it whole.

You might be interested in this discussion of the Bill, by, to steal a gag from Ian Brown, ``that well known bunch of leftie hippies, City law firm Clifford Chance.'' They point out that,

The only red tape the Bill would actually remove is the red tape of Parliamentary scrutiny for primary legislation.

What could possibly go wrong?

(I should probably say something about the idea of banning smoking itself. I don't smoke, I detest the smell of cigarette smoke, and I don't much fancy getting lung cancer. Meanwhile, I am skeptical that the smoking ban will achieve all that much. The legitimate argument for banning smoking is based on externalities: we should not force employees of, say, pubs, to expose themselves to the poisonous effects of customers' cigarettes. Customers can always choose a non-smoking venue, or to stay at home if there is none; employees do not necessarily have the same freedom. But I can't see any problem with a group of smokers running a pub for their own benefit, and permitting smoking in it. Surely a better approach would be through employment law: prohibit the benefits system from forcing a person to take a job in a smoking workplace, and so forth. Maybe there's some killer objection to this plan?)

Copyright (c) 2006 Chris Lightfoot; available under a Creative Commons License.