Jason Reed: Oxfordshire’s plan to become smoke free is yet another example of state overreach

2 Jun

Jason Reed is the founder of Young Voices UK and a policy fellow with the Consumer Choice Center.

In February of last year, Ansaf Azhar, the director of public health for Oxfordshire county council, unveiled the “Oxfordshire Tobacco Control Strategy”. Azhar had decided that the proportion of people living in Oxfordshire who smoke – 12 per cent – was too high and needed to be slashed. When fewer than five per cent of people smoke, an area can be considered “smoke free”. Azhar made it his mission to make Oxfordshire England’s first smoke-free county.

The Oxfordshire Tobacco Control Strategy was signed off by the county council in principle in May last year. You would be forgiven for thinking that since then, the director of public health at a local authority might have had more pressing matters to attend to than smoking. But Azhar has apparently continued his crusade against cigarettes undeterred.

He has now horrified right-thinking people up and down the country by declaring the council’s intention to ban smoking for outdoor hospitality. Although the plan currently lacks an implementation timetable or any other firm commitment, the fact that it is part of the plan at all says some very worrying things about the direction we’re heading in.

In the new world order of the nanny state, everything can be neatly categorised into good and bad. Everything is black and white – it’s all either vital or morally reprehensible. Once it is accepted that an activity is objectively “bad”, who could possibly oppose its being banned?

Of course, the real world, outside the offices of “directors of public health”, is rather different. It is not all black and white. There are lots of shades of grey. But nuance and freedom of choice aren’t all that fashionable these days.

Unfortunately for smokers, cigarettes have been deemed a social evil. Their existence is so objectively awful that the reasoning behind drastic measures to wipe them from the face of the earth doesn’t even need justifying. The result is that ludicrous policy proposals like the Oxfordshire Tobacco Control Strategy can be signed off and made reality with startlingly little scrutiny from those we elect to represent us and safeguard our civil liberties.

If you can bear it, I recommend a cursory read of the offending document, for novelty value if nothing else. It talks not of blanket bans, sweeping restrictions and ill-thought-out curbs on our freedoms, but instead of “creating smoke free environments”, as though we are being given a gift of something new to enjoy and ought to be grateful.

Most troubling is the way the document’s authors seem to be in complete denial that they are wielding the tools of the state at all. They write: “The interventions required to successfully de-normalise smoking and achieve a smoke free Oxfordshire may be considered as “nanny statist” or an assault on personal choice by some people. The whole system approach to make smoking less visible is not banning the choice of people who choose to smoke. It aims to create smoke free environments in more places in our communities, protecting the free choice of the nine out of ten residents of Oxfordshire who choose not to smoke.”

Oh, you thought our harsh new restrictions on what you can and can’t do in public were an assault on your freedom, did you? Don’t worry – if you look carefully, you’ll find that bans on common activities actually give you more freedom, not less.

The counter-factual logic behind the introduction of new regulations in the name of “public health” knows no bounds. If the council actually wanted to make Oxfordshire healthier, it would see that the answer is not to put yet more unnecessary strain on the hospitality industry at this impossibly difficult time.

Instead, the council should throw all its efforts behind supporting vaping as an alternative to smoking. More than half of Britain’s e-cigarette users – around 1.7 million people – are former smokers. Those nine out of ten Oxfordshire residents who don’t smoke won’t have to worry about any health risks from second-hand e-cigarette vapour. Even Public Health England concedes – with a great deal of reluctance – that vaping is 95 per cent less harmful than smoking.

And yet, in the 24-page Oxfordshire Tobacco Control Strategy, there is not a single mention of vaping, the most effective instrument for tobacco control we have. That begs the question: what do the public health authorities actually want, if it is not to make people healthier? When they flagrantly eschew proven harm reduction tools in favour of gratuitous centralised policy interventions, it becomes impossible to sympathise with their motives.

This problem stretches much further than Oxfordshire. In fact, the county is only a few years ahead of national public health outcomes. Its strategy mimics that of Public Health England, which is working towards Matt Hancock’s target of making England smoke-free by 2030.

The attack on effective harm reduction methods and the swing towards a new age of nanny statism comes from the very top. Last week, the World Health Organisation honoured the health minister of India for his work on “tobacco control” which notably includes banning vaping. A new APPG, chaired by Mark Pawsey, the Conservative MP, seeks to bring to a halt the WHO’s pernicious influence in areas like this. That task becomes more difficult with each passing day.

Steve Baker and Dominic Grieve: Saturday’s vigil, its mishandling – and why we should be wary of this plan for more police powers

16 Mar

Steve Baker was a Minister in the former Department for Exiting the European Union, and is MP for Wycombe.  Dominic Grieve is a former Attorney General and MP for Beaconsfield.

Sarah Everard’s killing and the subsequent charging of a police officer with her murder are horrors which will have struck us all. Men need to relearn the basic courtesies that enable women to feel safe in public – including challenging those who continue to ignore them – and heed the message that so many women have tried to convey over the last few days.

In its aftermath, Saturday’s events on Clapham Common were a disaster for the image of policing by consent and a vivid illustration of the consequences of the enactment of bad law. Policymakers and lawmakers must learn the right lessons from this as we consider the Police, Crime, Sentencing and Courts Bill.

The police have been put in an invidious position by poorly enacted Coronavirus law. The police may consider that protests are banned, but as a briefing by Big Brother Watch explains that “whether or not protests are legally prohibited remains unclear.”

While the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 contain a specific exemption on gathering for protests in Tiers 1-3, in Tier Four this exemption has been removed.

However, there is a credible argument that silent protest is still allowed as a common law right which has not been specifically banned. That has created an ambiguity which inevitably undermines Dame Cressida Dick’s claim in relation to the Clapham Common events that “unlawful gatherings are unlawful gatherings”.

Given the testimony to Parliament that there is very little evidence of outdoor transmission and no outbreaks linked to crowded beaches, it is hard to see how it was a good policing decision at this stage in the pandemic to break up a vigil for Sarah Everard by force – a vigil attended privately earlier by the Duchess of Cambridge for very good reasons.

This serious fiasco has also become the context for the Police, Crime, Sentencing and Courts Bill, but it is not necessarily the right context through which to consider all the public order powers in the Bill. The willingness of contemporary protestors to use non-violent mass law breaking to pursue political ends by bringing our cities to a halt and by placing massive pressure on policing resources cannot just be ignored.

In January, Brandon Lewis clarified in the Commons that the Government did not consider Extinction Rebellion an extremist group. But others have suggested that some within it may aspire to undermine liberal democracy by mass protest of this kind, although it must be rather doubtful that this is the agenda of most of its supporters.

If the powers available to deal with such improbable radicalism in practice are really insufficient at present, then this may justify changing the law. But in doing so MPs must uphold the fundamental right to protest along with the rights and freedoms of those whose lives may be seriously disrupted by such demonstrations.

The problem is that there is much in Part Three of the Bill to raise concerns that it may create uncertainty by giving far too much discretion to the police in determining this balance, and far too much power to the executive to change the law by decree if it chooses – a practice of which our experience over Coronavirus ought to make us very wary.

In a free and democratic society, the right to protest in public is fundamental, and the presumption in favour of maintaining that right, even at the risk of its being occasionally abused, is paramount. The criticisms of this part of the Bill from many quarters should not be ignored, even as we ask critics to face up to new policing challenges.

The Bill, being so wide in its scope, also deals with many other issues unrelated to public order and demonstrations. Those voting against it at Second Reading, as the Official Opposition apparently intends to do, must explain and justify their doing so when there will be much in it that their constituents will want. South Buckinghamshire residents will want to deter unlawful encampments, for example.

Conversely, those MPs voting for the principle of the Bill today, because they wish to see parts of it enacted, must make clear their intent to improve it at later stages and address the fundamental matters that go the heart of our civil liberties. Meanwhile, at this stage in the pandemic and the vaccination programme, the Government should proceed immediately to repeal all Covid-related restrictions on the right to protest, and remove the possibility of a recurrence of Saturday’s events.

Robert Sutton: The protection of civil liberties must be placed at the heart of a reformed Public Health Act

1 Jan

Dr Rob Sutton is an incoming junior doctor in Wales and a former Parliamentary staffer.

Since the passage of the Coronavirus Act 2020, we have seen an unprecedented restriction of civil liberties in this country. The powers assumed by the government have allowed ministerial decree to circumvent parliamentary scrutiny and to regulate the minutiae of our everyday lives to a degree unimaginable just one year ago.

Yet the basis of these powers drawn from the Act is dubious. Notable legal scholars, particularly Jonathan Sumption, the former Supreme Court Justice, have argued that the legislation is unsuitable for the executive powers which have been carried out in its name. Parliamentarians are similarly frustrated by the way the Act has been used to evade parliamentary scrutiny while some of the most consequential restrictions are rolled out on ministerial whim. Steve Baker, in his duties as Deputy Chairman of the Covid Recovery Group, has repeatedly called for reform in this area.

Certainly, any legislation which is being used for such a constitutional distortion must be entirely unambiguous in its scope. The Act draws its authority in part from the Public Health Act 1984 (PHA). The PHA provides powers to restrict the movement of individuals known to have a communicable disease and to control spaces which are known to be contributing to contagion. Yet the current Covid-19 restrictions are far broader in their application that just to those individuals who are known to be infected, and this is where the Act treads into murky waters.

While the PHA is clear in putting forward what restrictions might be applied to individuals and premises known to be contagious (and these restrictions are entirely sensible), it is far less clear what the scope of its powers are with regards to individuals who are not infected with a communicable disease – the vast majority of citizens. The legal precedent on such issues is that, where there is ambiguous or general wording, such vagueness must not be used to curtail constitutional freedoms. Else, we would be able to take justify drastic actions using whatever legislation is unclear in its scope. But the Government seems uninterested in such precedent.

The primary piece of legislation which gives government powers to curtail civil liberties is the Civil Contingencies Act 2004 (CCA). The CCA is a remarkable piece of legislation which allows a government to wield extraordinary powers in an emergency. As such, its use is strictly bound by ongoing Parliamentary scrutiny of those powers. It is clear that these powers are lent to the government by Parliament, and for a limited period at a time. They can also be withdrawn by Parliament as it sees fit. The fear that an emergency might be exploited to evade the House of Commons by a power-hungry executive was precisely what the drafters had in mind when including such safeguards.

The necessity for Parliamentary scrutiny intrinsic to the CCA is why MPs have argued that the executive should be using it as the basis for coronavirus restrictions instead of the PHA, or that the PHA itself should be reformed to make clear the limits of its powers. Yet Boris Johnson has made clear that he has no intention of using the CCA as the legal basis of lockdown powers, so we return to the PHA to define that scope.

The current PHA certainly was not developed with the current situation in mind. So, as it stands, we find ourselves trapped in a middle ground, in which the legislation being used as the basis for lockdown is unsuitable for that purpose and incapable of giving such provisions as to ensure ongoing Parliamentary scrutiny. This gives the rather uncomfortable impression that the Government intentionally chose a legal basis which it could use knowing that it would be subject to a lower standard of Parliamentary scrutiny than that which would be required under the CCA.

Yet to try to circumvent Parliament in the exercise of executive power is extremely myopic. Whether the Government currently realises it or not, it is within their best interests to ensure that further restrictions are brought before Parliament. Parliament is not some constitutional inconvenience. It is the basis for our liberal democracy, the means by which legislation is given its moral authority and an exceptionally useful political tool to measure public perceptions of government plans.

By directly reforming the PHA to explicitly limit its scope, and to allow legislation carried in its name to face full scrutiny by Parliament, the Government would certainly face a short-term inconvenience of restricting the executive powers it has used lavishly thus far. But there would be an overwhelming long-term gain in ensuring that those measures passed have the direct consent of MPs and the indirect consent of their constituents. This would without doubt make for better and more resilient legislation and ensure that any further restrictions are more surely footed in both law and public opinion.

Emily Barley: The Government’s Brexit plan puts us at risk of substandard and corrupt justice systems in EU member states

21 Jul

Emily Barley is Director of Due Process, the anti-EAW campaign group, and Chairman of Conservatives for Liberty.

Brexit campaigners hailed a massive victory when, back in February, the Government announced that we will be leaving the European Arrest Warrant (EAW).

Finally, we knew we’d be out of the jurisdiction of the European Court of Justice (ECJ), be able to restore our great British tradition of civil liberties, and could protect people living here from the abuses and mistakes of the EAW processes, substandard EU justice systems, and medieval European prisons.

But there was a sting in the tail of the Government’s announcement: sure, the plan was to leave the EAW, but then replace it with something that looks suspiciously like the EAW.

The EU-Iceland-Norway agreement the Government is modelling its proposed extradition agreement on has been described by experts as the “EAW-lite”, and has all the same problems that have raised such widespread objections to the EAW.

Under the Government’s plan we would be technically outside of the ECJ, but our courts would still need to take into account its judgments – in practice continuing the same state of affairs as now and not fulfilling the expectations Boris Johnson raised when he promised to take us out of it.

This new EU-wide agreement would have the same foundation of “mutual trust and recognition” between the UK and EU member states which requires British judges to turn a blind eye to serious abuses and mistakes in the substandard and corrupt justice systems of the likes of Poland, Greece, Hungary and Romania.

This system leaves us all vulnerable. It has led to cases like that of Edmond Arapi, who was convicted of a murder in Italy that happened while he was at work in the UK; Andrew Symeou, who was held in a Greek hell-hole for ten months after an ill-fated holiday where police beat false accusations out of his friends, and Alexander Adamescu, whose case is the most infamous and egregious example of the failings of the EAW going through the UK courts right now.

Adamescu is sought by Romanian authorities to face charges of corruption in a business insolvency case. There is no evidence against Adamescu, but that doesn’t matter under the EAW – because British judges cannot look at the evidence, or lack of it, even if they wanted to.

Human rights campaigners have described the conviction in 2014 of Alexander’s father, Dan Adamescu, on the same charges in the same case as a “show trial” which violated the presumption of innocence – but that doesn’t matter under the EAW, because the foundation of “mutual trust and recognition” means British judges must have blind faith in the justice systems of other countries.

Even when evidence mounts that the case against Adamescu is a politically motivated stitch-up by an unreformed communistic state, British judges must look the other way, required to believe that EU member states always act with integrity and in accordance with the law. It would be laughable if the consequences of the UK continuing with an EAW-lite extradition system weren’t so serious.

The Government says it wants to introduce “further safeguards” into this “new” system, but the ones we really need – like asking judges to look at the evidence against the accused (a prima facie case), and not sending people to countries with corrupt justice systems and medieval prisons – are incompatible with its plan.

We need to do this thing properly, and drop the idea of an EU-wide extradition agreement.

What we need instead is a series of bilateral agreements which acknowledge the varying quality of justice systems in EU member states and introduce a diplomatic check in the process, as is already the case with extraditions to non-EU countries.

I set out exactly how this would work in my report The future of extradition from the UK: Protecting fundamental rights, recently published by Due Process. There’s a lot at stake here. The Romanian state has already killed Dan Adamescu, and has its sights set on his son.

Innocent people going on holiday to EU countries are at risk of having their lives turned upside down, like Symeou’s was. And even those who stay at home, minding their own business and never setting foot in a particular country, are at risk of accusations and convictions under the EAW, like Arapi.

Johnson won the election last year with a commitment to take us out of the clutches of the EU, and unless that includes abandoning the idea of a dangerous EAW-lite system, he will have failed.

Richard Fuller: Parliament should vote to put a time limit on migrant detention

29 Jun

Richard Fuller is MP for North East Bedfordshire.

Where does today’s Conservative parliamentary party stand on issues of individual liberty? This is a largely unanswered question – hidden behind the general dysfunction of the last Parliament and our current focus on tackling Covid-19 and the economics of “levelling up”.

An upcoming amendment to place a time limit for immigration detention will be an opportunity to gauge the Party’s willingness to respect the liberties of the most excluded in our society. Why is this important? Because one of the greatest assets of Global Britain is the integrity of our legal system and due process. Indefinite detention should not sully that reputation.

Under the last Labour government, Yarl’s Wood, an immigration detention centre in my constituency, imprisoned the children of undocumented migrants. David Cameron put a stop to that.

My exposure to the injustice faced by the women detained there and to the general futility of immigration detention led me to support calls for reform of the system. Bluntly, immigration detention is unjust, ineffective and costly.

Successive Conservative immigration ministers have chipped away at the shortcomings of the detention estate – limiting the detention of pregnant women, reducing the overall numbers detained and cracking down on abuse. Yet one signal change – a time limit on detention – has yet to be made.

Our immigration system depends on robust enforcement to enable those with no right to remain in the UK to be returned, but this can and should be achieved without the use of unlimited immigration detention.

The latest Home Office figures show that, just in the last year, over 6,000 people were detained for more than 28 days, and 475 for more than six months. Immigration detention can and does sometimes run into years.

The National Audit Office reported recently that, in 2019, 62 per cent of non-British citizens leaving immigration detention were not removed from the UK or voluntarily repatriated; but released into the community. This is because the Home Office detains in all manner of circumstances, including when people have a right to be in the UK – as we saw with the Windrush Generation – or where for various reasons, removal is not possible. Immigration detention is ineffective.

Set that astonishingly high failure rate against the costs of detention, and the waste of this system is laid bare. It costs over £34,000 per person per year to detain someone, almost £90 million in the last year.

Additionally, in the year ending March 2019 the Government paid over £8 million to migrants in compensation for unlawful immigration detention, and the huge costs of settling unlawful detention claims are not known. Immigration detention is costly.

Many of the women I have met have experienced torture, including sexual violence, and many have been trafficked. The Government has done much to combat trafficking and modern slavery, but our success is hollow if the most vulnerable victims of these horrific practices are themselves detained indefinitely. As Global Britain reasserts its place in the world, we should be conscious of those impediments to our role as a global leader promoting freedom under the law.

Conservative MPs have the opportunity to do that right now by supporting an amendment to the Immigration Bill for consideration at the Report Stage. The amendment introduces a 28-day time limit and early judicial oversight of continuing detention. It is a small step that will enhance our immigration enforcement by putting in place a rigorous system to ensure that the Immigration Service operates promptly and efficiently; and it will create an equitable system in keeping with our traditions of justice stretching back to the Magna Carta.