By Merry Neal
“The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant… Over his own body and mind, the individual is sovereign.”
The above principle laid down by John Stuart Mill is a cornerstone of liberal political and jurisprudential thought. Mill argued that, provided you cause no harm to others, you should be free to do what you like with your own body and life. This is what the right to personal autonomy and self-determination means; and it is a right which is being steadily, and quietly, eroded. If liberty, as Mill said, consists in the freedom to do everything which injures no one else, then we are already not free – and if the current trend of legislating on public health and morals continues the residual liberty we do enjoy will be diminished.
It is easy to respect freedom when it is exercised in a way that the “general public” approve of: such as with freedom of speech, or of assembly. Yet when that freedom is exercised in a manner which alarms some sections of the public, the “Nanny State” feels able to exercise its influence in limiting that freedom.
The main areas in which it can be argued that the law has gone too far in this manner is in the law relating to smoking, sex and alcohol (so all the fun stuff, some might say). The aim behind these laws of social control is clear: to improve us. One day, perhaps we could all be non-smoking, non-drinking automatons who only eat healthy food and indulge in vanilla sex: a perfect world to some, but a boring one to others. Is it the job of the law to police our lives and morals in this way?
The Welsh government recently announced it is considering introducing a minimum price for alcohol and banning e-cigarettes, as e-cigarettes encourage a “smoking culture”. Quite apart from the fact that it is no mean feat to give up smoking and that e-cigarettes assist many in succeeding in the arduous quitting process, this is a clear intrusion into individuals’ lives when their actions are causing no direct harm to others. Factor into this the fact that 23% of the Welsh are smokers, and you can see that the Government are intruding into the lifestyle choices of almost a quarter of the country – but of course, it’s for their own good. The ban of the smoking of “real” cigarettes was required to protect others from passive smoke, but banning e-cigarettes has no such justification. And why stop there? Obesity and stress-related illnesses put huge strain on the NHS, so why not intrude into big business and regulate the stress levels of its employees? Or set a legal BMI limit?
Health and safety law has bled so far beyond its original purpose to protect industrial workers that it now acts to unduly constrain public life: children have been banned from playing football in the playground, and taxi drivers have been forced to cancel their annual outing for vulnerable children because each cab would require a costly risk assessment.
What about sex? You’re free to indulge in whatever sexual activities you wish provided you are a consenting adult, right? It’s your body, your kink, your life. Wrong. Hardcore BDSM your thing? Well make sure you don’t give your lover permission to whip you until, say, they break the skin, because you aren’t allowed to give them that permission. The law says it’s wrong – and your lover may be deemed a criminal (R v Brown  1 AC 212). Unless, of course, you’re a married heterosexual couple, then it might be ok (R v Wilson  2 Cr. App. R 241). In 2012, the prosecution of Michael Peacock under the Obscene Publications Act 1959 hit the news, after the Crown sought to argue that gay pornography Mr Peacock sold was capable of “depraving and corrupting” those who watched the DVDs – although, presumably, those purchasing the DVDs didn’t think so or were perfectly happy to be so corrupted. Luckily, the jury disagreed and Mr Peacock walked free. Similarly in what became known as “the Porn Trial”, Simon Walsh was prosecuted for possessing extreme pornographic images – such as of “fisting” – on his private email account. Again, the jury refused to convict. Myles Jackman, the defence lawyer for both Mr Walsh and Mr Peacock told me that in Mr Walsh’s case, “the state was intruding even further into the bedroom as the defendant was charged and prosecuted for having photos of consensual activities he had performed in his own home”. The state intruded into the bedroom again in R v Lock last year, prosecuting a man who had whipped a woman with a rope during a pre-arranged “hook up”. The pair had agreed a safe word and, again, the jury refused to convict – proving that even if the State believes it has a place in the bedroom, Joe Public might not agree.
And yet in many situations the law will refuse to intrude where certain actions clearly do cause harm to others, in recognition that these are matters of morality and not legality. You are free to cheat on your spouse or lie to them as much as you wish: society might not condone your actions but it recognises that they are actions within the sphere of your own control, which you are free to make. Even the use of the law as an agent of social improvement would not intrude this far into autonomy.
I would not seek to argue for a moment that the law shouldn’t intrude into activities, sexual or otherwise, which cause clear harm to others – the possession of child pornography, or the smoking of real cigarettes in a confined public space – but there must come a point when the law sits back and allows consenting adults to do what they wish with their own lives and bodies where their actions cause no harm to others; even if those actions make you feel a bit squeamish.
In an era of overt regulation and a terrifying level of surveillance, where people’s lives are recorded and monitored through their electronic communications, the growth of “moral legislating” is a worrying one. Due to a social contract which, in reality, no individual has any choice in signing up to (unless you want to go and live in a cave and try the hermit lifestyle), our lives and destinies are formed and controlled by rules, regulations, morality, society, and law. But law should be the last resort, reserved for ills or harms which damage society to such an extent that society as a whole believes that any individual committing that harm should be deemed a criminal.
The law has lost its way. Big Brother is not only watching you: he is criminalising you.