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Jul
02
2010

The Cream Buns Act

Mrs Thatcher had a minister, Neil Hamilton, responsible for deregulation. Under Labour a similar agenda was pursued by the Better Regulation Task Force. That morphed into the Better Regulation Commission and then into the Better Regulation Advisory Council and, finally, into a whole Department of State in the form of BERR – the Department for Business, Enterprise and Regulatory Reform. All these initiatives shared the premise that the ever-growing burden of risk-averse regulation under which the country was labouring not only led to inefficiency and curbed entrepreneurial initiative; it was a threat to civil liberties.

Now a new initiative – “Your Freedom”. The new coalition government aspires to restore civil liberties. It wishes to hear from us: “Which current laws would you like to remove or change because they restrict your civil liberties?”

Here is the proposal that I have submitted – without a cat in Hell’s chance of it being acted upon. (A further difficulty is that I submitted it twice and both times their software took liberties that rendered the submission rather strange. The site does not have a help section and does not allow editing or retraction; another Government IT triumph!)

The Cream Buns Act: one law to sweep away many

Eating too many cream buns is bad for you. There ought to be a law against it?

No!

Why? Because it is an activity that harms only you. Such a law would infringe your civil liberties.

The Cream Buns Act would remove all existing laws and regulations that proscribe behaviour that risks only the health or safety of mentally competent adult risk takers.

All existing, and prospective, legislation and regulation should be subject to the Cream Buns Test: if the behaviour subject to control or restraint is potentially harmful only to the person it is proposed to control or restrain, it should be repealed or withdrawn.

Two nominations for early repeal: the seat belt law and the set of laws criminalizing the sale or use of drugs. They merit priority not only because they pass the Cream Buns Test but, more importantly, because they have criminalized millions and can be shown to have had highly significant adverse consequences. The drug laws have created vast, violent criminal enterprises, and the seat belt laws have made roads more dangerous for pedestrians and cyclists.

References

Drugs:

Seat belts:

The Your Freedom website asks – why is your idea important?

(In the second version on the Your Freedom website this section is excluded – http://yourfreedom.hmg.gov.uk/restoring-civil-liberties/the-cream-buns-act-1/idea-view)

The Cream Buns Act would enshrine in legislation an important principle setting out the limits of the authority of the state.

John Stuart Mill thought it was an important principle.  My proposal is highly derivative. Here, in 1859, is his version:

“In the conduct of human beings towards one another, it is necessary that general rules should for the most part be observed, in order that people may know what they have to expect; but in each person’s own concerns, his individual spontaneity is entitled to free exercise. Considerations to aid his judgment, exhortations to strengthen his will, may be offered to him, even obtruded on him, by others; but he, himself, is the final judge. All errors which he is likely to commit against advice and warning, are far outweighed by the evil of allowing others to constrain him to what they deem his good.”

(On Liberty, J S Mill, Chapter 4: Of the limits to the authority of society over the individual.)

12 comments

1 ping

  1. Andy Reynolds says:

    As a senior civil servant once said to me “You’re right, but that’s all you are”. It’s going to be hard to get the man on the Clapham Omnibus to bother to question the folklore of things like seat belts. But without a groundswell of popular support, we’ll get nowhere. (And we shouldn’t complain too much about that, because it’s the same principle that keeps the magic bicycle hat off the UK statute books).
    I think risk dysfunction is one of the most serious collective cognitive deficits afflicting western societies. It’s stunting the intellectual and physical development of whole generations. Mill would have been proud of the Cream Bun Test, but I think it belongs in something higher than a law – it needs to be a core principle of human rights charters.

  2. Felix Kloman says:

    John: I’m with you on decriminalizing drugs, but I do wonder about seat belts. Of course, I recognize that, with the “safety” of seat belts, almost the entire driving public immediately started driving faster, probably nullifying the effect of belts.

    But what about helmets for motorcycle drivers? I don’t notice any reports on greater speeds and more erratic driving patterns? The problem, on this side of the Pond, is that when some of them, inevitably, smash themselves – without helmets – they become effectively on the State payroll for their medical expenses and long-term care. Perhaps we should simply say that without a helmet and without a seat belt (in a car), you are simply on your own: no public assistance whatsoever!

    Another comment: around 1900, with “only” 3 billion pus people on this planet, perhaps the John Stuart Mill approach made some sense. But with 6.5 billion now, going to 9.5, does there come a time where, for our own self-protection, some of these regulations may be warranted?
    Felix

    *************************************************
    Felix
    Seat belts. “Of course, I recognize that, with the “safety” of seat belts, almost the entire driving public immediately started driving faster, probably nullifying the effect of belts.” I agree, but the effect is rather more subtle than this implies. In The Efficacy of Seat Belt Legislation I calculate that in Britain the result could be explained by one fatal mistake or lapse of concentration every 250 million kilometres of driving. In the same article I quote a Swedish study that estimates that for every fatal accident there have been 400 million driver decisions made and 50,000 mistakes. So you don’t expect a change in behaviour that you can see with the naked eye.
    Motorcycle helmets. The largest “natural experiment” testing your concern about helmets was conducted in the latter half of the 1970s when 28 US states repealed their helmet laws. In my study Public safety legislation and the risk compensation hypothesis: the example of motorcycle helmet legislation I concluded “the effect, if any, of helmet legislation on motorcycling fatalities is perverse.”
    Medical expenses. Precisely the same argument could be applied to the costs of medical treatment for people who become obese through eating too many cream buns.
    Population growth. I am unclear why you think an increase in the world’s population justifies more laws and regulations to protect me from myself.
    JA

  3. Kim says:

    One of the best ways to make the roads safer would be to pass a law that every car should be fitted with a large spike in the middle of the steering wheel! This would make all drivers take a great deal more care when driving.

  4. Chris Owen says:

    An act I would support.

    In terms on motorcycle helmets, I would like to see statistics on the externalities helmeted and un-helemeted motorcyclists have. Pedestrians do die and get injured from being hit by motorcycles. I would take a guess that un-helemeted riders kill or injure less people. They might ride faster and helmets definitely are restrictive in terms of head movement and they do shave off some field of view. I once road my motorcycle down into a private car park without a helmet. The feeling of increased awareness and freedom to move felt significant. Helmets are not insignificant in weight.

    Dear John,

    I wonder if you’ve thought about some of the big changes in road safety that really could have a positive effect. Car dashboard cameras and GPS devices which record everything the driver and other drivers do. These are available now and are only going to get cheaper. It’s long been advocated by some people that insurance companies will do a better job than the police at road safety. This technology will give them the evidence. Bad drivers will be terrified that they are being filmed by good drivers.

    Thanks – Chris

  5. Duende says:

    “around 1900, with “only” 3 billion pus people on this planet, perhaps the John Stuart Mill approach made some sense. But with 6.5 billion now, going to 9.5, does there come a time where, for our own self-protection, some of these regulations may be warranted?”

    Opposite way round surely, Felix.With such overpopulation, all the more reason to let us have fun reducing our own numbers!

  6. Steve Jones says:

    Happy enough with the principles of personal responsibility, but none of this is quite that simple. In many cases exercising these personal liberties introduces social costs for the rest of us to bear. (There are also some physical ones – an unbelted rear seat passenger is a potential danger to a front seat passenger).

    Libertarianism is fine, but not with the rest of us expected to pick up the bills. Where people voluntarily place themselves at considerably higher risk of causing the rest of us greater social costs (e.g. medical or care costs), then this should be recognised in behavioural costs. It seems to me appropriate that all drivers of vehicles should be made responsible for the medical and social costs of dealing with their injuries. Of course insurance would be available for this, and I’m quite sure that insurance companies would wish to take into account risk factors (like being unbelted). I might even propose extending this to those who require emergency medical attention for excessive drinking. Clearly a line has to be drawn somewhere – some activities, like sport, are clearly socially beneficial, and it goes rather too far to intrude on people’s dietary intake, but if Libertarian philosophy means anything, then it surely also means picking up more of the direct costs. Of course there will still have to be a safety net of sorts for those that don’t, or can’t, pay for the costs of their own excessive behaviour but that’s hardly a new thing.

    The evidence from the US is also that the unbelted are more likely to be involved in accidents than those who wear belts, and vastly more likely to be killed. Now this might well be mostly reflective on the perception of risks of seat belt wearers versus non seat belt wearers (very likely the former are more risk averse or have a heightened sense of risk), but it hardly supports the case that those wearing seat belts are immediately going out to nullify the benefits by taking more risks.

    On the subject of road safety, I see that in the latest statistics in the UK road fatalities dropped by 12% (to 2,222 in 2009) and this pretty well included all the more vulnerable groups (although motorcyclists, as usual, did less well). Nevertheless, it continues a welcome trend over the past few years.

    That’s against very similar levels of miles driven, so something is happening. A 12% drop simply can’t be explained by a technology change and it rather points to welcome behavioural changes. Again that hardly supports the notion that in our cars, with their many active and passive safety features, that we are all driving more recklessly. With the increase in surveillance of traffic cameras and other measures to change driver behaviour, then I rather doubt it. I’d certainly agree that driver behaviour plays a huge role – that’s the only way that the vastly different road fatality rates can be explained between developed European countries at otherwise very similar levels of technological and economic development. It’s that safety culture that matters – that’s more about social attitudes and culture than suddenly inducing rash behaviour by making people wear safety belts.

  7. Andy Reynolds says:

    Steve, I’m not sure you see the connection between:

    “Libertarianism is fine, but not with the rest of us expected to pick up the bills”

    and

    “Of course insurance would be available for this”

    The point about motor insurance (in particular) is that it is a mandatory scheme for relieving individual drivers of the greater part of the societal cost of their errors and omissions. Without it, drivers would face the full consequences of their actions; adjustments in premiums really just reflect competition for the business of low-risk clients, not cost recovery from individuals.

    So the vast majority of us compliant citizens are already picking up the bills of an activity that kills or seriously injures 26,000 people a year in the UK. Few of us question the principle for that activity, so why for others?

    But please, let’s not have our whole lives run by insurance companies. They are in a position to see only the the cost of risk-taking, not the benefit.

  8. Ben Rogers says:

    Hi

    I am pretty sympathetic to the cream buns principle but think it needs qualifying or at least careful stating (and in fact you and Mill state it very carefully). I accept the argument put forward by Sunstein and Thayler in their book Nudge which says that while government should not proscribe conduct that hurts no one except for the agent, it is legitimate to set choices up so as to nudge us to take the prudent, sensible or healthier choice. (They call this libertarian paternalism). Cream buns are a perfect example of this. While government should not ban people eating cream buns it can legitimately run campaigns alerting people to the perils of eating too many, oblige retailers to carry health warnings, introduce a modest cream bun tax and perhaps even oblige retailers to offer healthier options alongside them. The justification for this is that we have strong psychological biases that dispose us to act in ways we are later likely to regret or would regret on reflection. However I agree that if we are set on a course that only harms ourselves (like eating 100 cream buns a day) then we should be allowed to pursue it.

    The cream buns principle runs into other difficulties as well. Finding a satisfactory way of identifying harm to others is notoriously difficult. Most of us accept that some sort of conduct while not physically hurtful to others is so offensive to them and their social standing as to merit being banned. The cream buns principle however can’t tell us where to draw the line. On a strict construal of it, it would probably forbid the outlawing of ‘incitement to racial hatred’. I think you can easily go too far in limiting free speech in the name of ‘respect’ but I think you can justify outlawing some particularly offensive forms of speech and behaviour.

  9. Duncan Stott says:

    1. Why do you say it is “more important” that banning the unhealthy/unsafe behaviour has had highly significant adverse consequences? Surely the Cream Bun argument is that the behaviour should be legal regardless of how big or small the adverse consequences for the individual are.
    ******************************************************************
    “The drug laws have created vast, violent criminal enterprises, and the seat belt laws have made roads more dangerous for pedestrians and cyclists.” The adverse consequences of these laws are borne by innocent third parties.
    JA
    ******************************************************************
    2. Calling it the Cream Buns Act is just being stupid. It should obviously called the Lemon Drizzle Cake Act.

  10. DunKhan says:

    I have issues with the seatbelt proposal. It can be summed up in two questions – “would anyone benefit?” and “would anyone suffer?”.

    I think it quite clear that the answer for the first one would be “no” and for the latter it would be “yes”. Driving without a seatbelt is hardly any more or less pleasurable than driving with one, the activity of putting on a seatbelt is not difficult or painful.

    Passengers without seatbelts however can be a risk to other people in the car and can injure others if they are thrown around by the impact. “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.” (Mills) is a caveat to the quote you gave and I think it applies here.

    So, to be frank, I think the legalisation of driving without a seatbelt issue is just ideology and nothing more. No-one benefits, people suffer, so why bother? Pragmatically, nothing tangibly positive comes out of it – it’s just pure ideology and when ideology conquers pragmatism you’re in dangerous territory.

  11. Andy Reynolds says:

    DunKhan, you need to widen your analysis to include people other than car occupants. In Adams’s books you will see who suffers from the imposition of seat belt laws – cyclists and pedestrians to whom the burden of risk consequence is transferred. It is far from obvious that there is an overall safety benefit.
    If we accept the notion that drivers are humans who adjust behaviour to maintain a tolerable level of perceived risk to themselves, then we should arrange that as far as practicable drivers, not others, bear the consequences of their behaviour. This seems to me to be entirely pragmatic, whereas seat belt laws are dogmatic: they prevail because dogma takes less effort to accept than pragma.
    To the extent that ideology enters the equation, it is in principles of liberty as espoused by Mill, and there’s nothing wrong with that imo.

  12. Tom May says:

    Hi John,

    One argument against your proposal is that personal risk taking has a cost on the state. In the case of cream buns the cost of obesity to the NHS is considerable. Does this mean that under the Cream Buns Act you can, for example, eat as many cream buns as you like but the state will not then pay to mediate any negative results? So if I eat lots of cream buns and develop diabetes would/should I have to pay for the required treatment?

    Cream buns are very topical, at present health checks is a big health programme: http://www.nhs.uk/Planners/NHSHealthCheck/Pages/NHSHealthCheck.aspx

    (I did your risk module at UCL over a decade ago now and still refer to it at work)
    Tom.
    ****************************************************************
    Hi Tom
    “So if I eat lots of cream buns and develop diabetes would/should I have to pay for the required treatment?” The NHS says no. Would you have a tribunal to judge how many cream buns (or Big Macs) disqualifies you from free treatment? Under the present political consensus the NHS cares for the unlucky but also for the weak and foolish. Would you have it otherwise? JA

  1. Two for the freedom bill: seatbelts and drugs? says:

    [...] author of “Risk”, explains on his blog: The Cream Buns Act would remove all existing laws and regulations that proscribe behaviour that [...]

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