With the National Health Service having issued new guidance on smoking in hospitals, the habitual arguments about abridgement of rights have appeared. So it felt like time to share my thoughts on human rights. Specifically that many of them are not, and should not be rights.
The NHS guidance boils down to hospitals no longer facilitating smoking. It advises that NHS trusts should not longer provide help to smoke, such as designated smoking areas, and should take a more pro-active stance on offering help to stop. The response from people opposed to these steps is littered with the utterly predictable comparisons to Nazi Germany’s actions. Whilst I find the (probably) unintended comparison to the Nazi’s drive toward health and fitness amusing, I am less amused by the conflation of the freedom to smoke with a hypothetical right to smoke.
There are many freedoms recognised as signs of a civilised society: free speech being one of the most often cited. But these freedoms are not all rights. For a freedom to be a right it must include a duty on someone else to aid the right-holder in exercising the right. For example, the right to a fair trial imposes, among other things, a duty on the person bringing the case to inform the defendant what the case is in time for them to prepare a response; it is backed by sanctions against the person bringing the case, and the risk the case will be dismissed or reversed, if it is not done.
Freedoms that do not impose a duty on someone else are liberties. For example, the freedom to say what you wish grants you protection from someone stopping you speaking, but does not require anyone to listen or provide somewhere for you to speak, and is not backed by any penalties if people choose to ignore you.
Smoking is a liberty, not a right: no one is under a duty to give you a cigarette if you wish to smoke; no one will be prosecuted for not providing somewhere sheltered from the rain to smoke in.
In fact it is one of the strongest liberties in the United Kingdom: if I spray toxic chemicals into your face from a bottle I will have committed a serious offence against your person; if I blow a cocktail of the same toxic chemicals into your face as cigarette smoke any attempt to prosecute you for the poisoning would never reach court. Compared to the generally accepted limitations on freedom of speech where it is necessary for good social order, the liberty to smoke even when it is risking the lives of others is amazingly wide.
Even situations where someone is required to provide a cigarette and somewhere to smoke it are not actually examples of a right to smoke. The apparent duty on prisons to facilitate smoking actually stems from the withdrawal symptoms of nicotine making forced abstinence an illegal punishment.
So this guidance (and it is guidance: each NHS trust has freedom over how, and even whether, they adopt it) actually only restates the current situation: hospitals have no duty to make smoking possible or even easier. It is actually advice on not changing anyone’s freedoms.
While I freely admit I do not support the liberty to smoke (it seems absurd that the United Kingdom, quite rightly, has laws against throwing distilled water at a child but, incorrectly, has none about exhaling toxic chemicals around a child), this post is not a veiled triumphal crow at them suffering inconvenience. The identification of which freedoms are, or should be, rights and which are, or should be, liberties goes to the heart of the very freedoms pro-smoking campaigners claim to be protecting. By making something a right, we restrict the freedom of another.
And imposing additional restrictions on another is a human rights issue.