By Tobias Thienel

Sorry for the extreme delay: I missed this one, perhaps because of the less than catchy title. It’s the judgment of the English High Court in R (G) v Nottinghamshire Healthcare NHS Trust [2008] EWHC 1096 (Admin) of 20 May this year. Mind you, as headings go, this one would seem to come in at the lower end of most people’s scale of surprise. The conclusion that there is no human right to smoke would seem patently obvious. But do bear with me; there has been no suggestion in this English case that a right to smoke has ever been laid down in any instrument of English or international law; it hasn’t. That much really is obvious. Instead, the argument proceeds from Article 8 ECHR, the right to respect for a person’s private life (and also their family life, home and correspondence, none of which matters here), which is ‘not susceptible to exhaustive definition’ (Pretty v United Kingdom, para 61). More to the point, the right to respect for one’s private life has been held to protect, inter alia, a person’s physical and moral integrity (see ibid and Bensaid v United Kingdom, paras 46-47). It may not be entirely implausible that to ban smoking is to interfere with a smoker’s physical and psychological integrity, if the ban prevents them from smoking at all. Justification of the interference might be another matter, but Article 8 would have then been engaged, if nothing more. In the case of G itself, the ban on smoking was complete. The claimants were detained mental patients in a secure unit, and were not allowed to go outside to smoke. They were and are still allowed to smoke in one room in their facility, but that permission is to expire on 1 July. From then on, the unit will be entirely smoke-free, and the claimants will be prevented from smoking at all. They will, in other words, be forced to quit. I understand that this can be an unpleasant experience. And still, the High Court (Pill LJ and Silber J) dismissed the claim, holding that Article 8 was not engaged. I cannot bring myself to disagree. The Court considered that the interference with a smoker’s personal integrity was not sufficiently severe to engage Article 8, and also that the concept of privacy would differ depending on whether a person enjoyed his or her private life at home, or in detention (paras 101 and 102 of G). Both these points seem plausible: ‘The Convention is concerned with rights and freedoms which are of real importance in a modern democracy governed by the rule of law. It does not, as is sometimes mistakenly thought, offer relief from "The heart-ache and the thousand natural shocks That flesh is heir to"’ (Brown v Stott [2003] 1 AC 681, 703, Lord Bingham of Cornhill; Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24, [2005] 1 WLR 1495, para 31, Lord Steyn). Article 8 therefore cannot provide protection from every desire, craving or addiction. The crucial point here is one that the High Court makes in commendably clear terms. Counsel for the claimants had argued that Article 8 reflected John Stuart Mill’s concept of liberty. Mill, of course, had written On Liberty in 1859, in which he said (as cited by counsel, and reproduced by the Court at para 50):

The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign

The High Court rejected the submission that Mill’s words now describe the scope of Article 8 (para 100). That article does not protect a person’s freedom to do as he or she pleases, subject only to the rights and interests of others (which would be covered by paragraph 2 of Article 8). The article has a threshold test, and does not step in every time the State orders someone around, to then require that such State action be lawful and proportionate. No other human right under the Convention goes this far, either. [For our German readers, this means that the general freedom of action – allgemeine Handlungsfreiheit – guaranteed, with precisely those consequences, in Article 2(1) of the Basic Law finds no equivalent in the ECHR.] To be sure, this is not a new point. The judgment of the High Court nonetheless stands out by making a true point – regrettable though it may be – in very clear terms. It shows that the European Convention protects, as its full title says, ‘human rights and fundamental freedoms’, but not liberty as such. In other words, I’m not sure if John Stuart Mill would be perfectly happy with today’s Britain (or with today’s Europe), but he certainly wouldn’t see his concept of liberty judicially enforced (under the ECHR). But then again, I’m not sure he’d want to.