Fox-hunt ruling could show weakness on smoking ban

MIXING with journalists inevitably involves the odd trip to a smoke-filled pub, but after deputy first minister Jim Wallace became the first Cabinet minister to declare publicly his backing for a complete ban on smoking in pubs and restaurants in Scotland, the atmosphere may soon change.

With the consultation on smoking in public places ending in September, and following the successful implementation of similar bans in Ireland and New York City, the Scottish Executive will be keen to legislate. They already have the backing of the medical profession, with recent health statistics illustrating the link between smoking and ill health in Scotland.

However, as with any cry to have something banned, there is opposition. Civil libertarians argue it is a matter of choice, the smoking lobby claims research is flawed and the licence trade has concerns that if the 30 per cent of Scots who smoke decide to stay at home rather than head to the pub, profits will fall.

But just what are their chances of successful opposition?

Earlier this year, the Court of Appeal ruled that MSPs had been entitled to decide that fox hunting was cruel and that it should be banned in spite of the feared impact on rural communities, holding that it was a fit and proper exercise of legislative power to proscribe such an activity. The Countryside Alliance and the Masters of Foxhounds Association failed in their attempts to have the Protection of Wild Mammals (Scotland) Act set aside.

In line with the European Convention of Human Rights, the court applied three general guidelines, namely: whether the legislative aim was sufficiently important to justify the limitation of the right in question; whether the measures taken were rationally connected with it, and whether the means used were no more than was necessary to achieve it.

Notwithstanding the fact that the court accepted there would be economic harm to a group of individuals, they considered that their human rights had not been affected by the legislation. And therein lies the problem for those opposed to a ban on smoking.

Scotland’s courts would almost certainly take a similar view with regard to this issue. The only hope for those opposed would be to argue that the introduction of no-smoking areas in pubs would be a compromise that makes the legislation an unnecessary overreaction.

Unfortunately for civil libertarians, the tide may be turning against them. In a recent case in the House of Lords concerning the retention of DNA samples, the court decided that any breach of privacy rights was very clearly justified by the benefits in the fight against crime, which would be assisted by a DNA database that was as large as possible.

While that decision related to criminal matters and the prevention and detection of crime, it is imaginable that such an argument, for the greater good, could be used in respect of smoking. After all, would the benefits to public health and the costs to the NHS not be justified by the imposition of such a ban?