In the book, I make much use of the concept of ‘unintended consequences’ – the way that, in particular, rational-legal rules give rise to effects that were not only different to those intended but run directly counter to what was intended. My last post on the VW emissions scandal provided a current example.
But sometimes the situation is more complex, and I return here to the case of regulations around smoking, about which I have written in another post on this blog, and, with Jo Brewis, also written an academic paper (Brewis & Grey,2008). The latest development is that today a law has come in to force banning smoking in cars when a person less than 18 years old is present in the car. It’s by no means an objectionable law, in and of itself, because who would want to claim that smoking in a car with children is in any way a good thing?
What is interesting about this law, though, is that it is manifestly doomed to failure. Police representatives have already said that it is unenforceable, partly due to lack of resources but also because of detection problems. For example, electronic cigarettes are not included in the legislation so a police patrol would not easily be able to tell whether an offence was being committed, nor is it easy to know the age of passengers from a patrol car. Moreover, the legislation allows 17 year olds to smoke in cars if the passengers are 18, allows smoking in convertibles with the hood down, and allows smoking in caravans and motorhomes, even if children are present, so long as the vehicle are not at that point moving.
We might, then, assume that the intended consequence is to stop smoking in cars with children and that the unintended consequence is it not working. But in fact the situation is more complex. The long-term aim of anti-smoking activists is the eradication of all smoking, but they approach this goal stealthily because smoking is such a strongly culturally embedded practice. From that perspective, the failure of this latest legislation will be desirable, because when it fails it will justify a new law banning all smoking in all vehicles in all circumstances.
Social science research is sometimes criticised for lacking the predictive power of natural science, so here I will make a prediction. Within, say, five years (and I would expect less rather than more) a total smoking ban in cars will be in force. And as soon as it is, or even, possibly, before there will be lobbying for a ban on smoking in houses where children are present. Once again few will object, because no one could really mount a case that it would be good to allow it. So a law will follow, which will of course be even more unenforceable than that against smoking in cars with children. From which will ‘logically’ follow that all smoking by anyone in any house will be banned.
By that point, the situation as regards public spaces (e.g. bars) and private spaces (e.g. homes) will be identical: smoking in both is banned. So what happens then? Well, look at what is happening around the regulations on public spaces. At first, it was just indoors. Now, it is increasingly in parks and on beaches which are public spaces but outdoors, including outside pub doorways. The rationale for this is not that others might inhale the fumes, but that those (especially children) seeing it might think that smoking was ‘normal’. So, once there is a ban on smoking inside homes, it will get extended to smoking outside home, for example in gardens. In other words, as each new rule ‘fails’, that failure provides the rationale for a new rule. It is in this sense that failure is an intended consequence of regulation since it paves the way for successfully extending regulation.
With smoking now very much a minority activity in the UK and many other countries, few will shed a tear about any of this (and it’s not my intention that anyone should: I just want to provide an interesting illustration of a particular phenomenon around unintended consequences). But it’s worth reflecting that with the campaign to reduce smoking now being acknowledged as the gold-standard of public health campaigns, the same tactics are being applied to another deeply culturally embedded practice (as smoking was a generation ago), namely alcohol consumption.
As with smoking, the initial restrictions have been around advertising. Then (rather like the 1970s campaign that smokers should choose cigarettes with filters and leave long stubs) there has been the definition of safe drinking limits, which turn out to have been ‘plucked out of air’. Now, as happened with smoking, some campaigners say that there is no safe limit for alcohol, and although that is not mainstream in the way that it is for smoking it is accepted to be true for pregnant women. Meanwhile, just as there used to be a differentiation of ‘light’ or ‘social’ smokers from the hardcore we have a similar differentiation of social and ‘binge’ drinkers, with a binge drinker being someone drinking more than 3 pints of beer. The key move in anti-smoking discourse was to establish the notion of passive or secondary smoking, and the same shift has been mooted by former UK Chief Medical Officer Sir Liam Donaldson, who is also responsible for the Orwellian declaration of aiming for the complete denormalization of smoking.
So here’s another prediction – as smoking fades away, restrictions on alcohol will increase along with restrictions on sugar and ever more demonization of obesity. Each restriction will give rise to failures which far from being unintended will have been designed to fail, in order to justify further restrictions. But the law of unintended consequences will still hold, and indeed it is already very clear that this is so. Because the more that unhealthy practices, such as smoking, drinking and over-eating are reduced, the more we see the degradations of dementia, of old age blighted by complex and intractable multiple illnesses, of obscure cancers that were rarely known before.
Moreover, since taxes on smoking are, massively, a net contributor to the NHS (and the same is true for alcohol) the less we smoke the more difficult it will be to fund the healthcare for the longer lives we will indubitably – for, of course, the anti-smoking campaigners are quite right to point to its dangers – be living. But that, too, is not really an example of an unintended consequence since, as Jo Brewis and I argued in our article, the real motivation of the anti-smoking movement is not public health, but the imposition of a morality about smoking that long precedes, and proceeds quite independently of, any scientific or medical rationality. They simply reproduce, in modern language, King James I's (1604) Counterblaste to Tobacco:
Have you not reason then to bee ashamed, and to forbeare this filthie noveltie, so basely grounded, so foolishly received and so grossely mistaken in the right use thereof? In your abuse thereof sinning against God, harming your selves both in persons and goods, and raking also thereby the markes and notes of vanitie upon you: by the custome thereof making your selves to be wondered at by all forraine civil Nations, and by all strangers that come among you, to be scorned and contemned. A custome lothsome to the eye, hatefull to the Nose, harmefull to the braine, dangerous to the Lungs, and in the blacke stinking fume thereof, neerest resembling the horrible Stigian smoke of the pit that is bottomelesse.