Robert Armstrong: This Government’s tobacco ban risks an Irish border showdown

Robert Armstrong is Director of the Institute for Free Trade, and Advisor for Special Initiatives at the New Lines Institute for Strategy and Policy.

The Government’s plans for the UK to become the first country in the world to introduce a so-called “generational smoking ban” are becoming increasingly untenable.

The media has done a perfectly good job explaining just how ridiculous it is that one day a 43-year-old will be banned from smoking while a 44-year-old could smoke to his lungs’ content. Others have rightly questioned whether it would actually be effective.

But neither of these arguments has been enough to stop the bill crawling its way through parliament, which has voted for it twice. Behind the scenes, the bill is coming under serious legal scrutiny – to which it is not robust.

Many countries have tried a generational ban. New Zealand couldn’t implement it ban when faced with the fiscal cost, enforcement concerns, the black market, legal challenges, and evidence that the whole thing wouldn’t meaningfully reduce smoking.  Malaysia also tried it, but struck out the plans after its Attorney General advised the plans were unconstitutional since they created “two sets of laws for two different groups of citizens based on age”.

As far as I can tell, the only places on earth to have implemented one is as a bylaw in a group of 17 towns in Massachusetts. Ireland also tried a “smoke free generation” policy just like the generational ban – which was abandoned since it broke EU law.

All these problems will crop up for the UK. Perhaps the final nail in the coffin, however, will be the Northern Irish border. Under the Windsor Framework, which governs post-Brexit trade and regulation, Northern Ireland remains aligned with certain EU laws – including the EU Tobacco Products Directive.

That directive is clear: member states (and in this case, Northern Ireland) cannot ban outright tobacco products that meet EU standards. It was on these grounds that Ireland dropped its plans for generational ban.

The upshot, at a time when Sir Keir Starmer appears to be trying to ‘reset’ UK-EU trade (whatever that means is not particularly clear to me), is that the Government is attempting a policy that quite straightforwardly break its agreement.

If they do barrel ahead with this policy, it would surely not apply in Northern Ireland, creating another intolerable divide along the Irish Sea. One imagines in the near future a 33-year-old might be banned from buying cigarettes at his local in Londonderry but could drive ten minutes into the Republic and do so legally. The law would generate confusion, resentment, and most dangerously, opportunity for those already profiting from the island’s thriving illicit tobacco trade.

Ireland is already a destination for tobacco smuggling thanks to their own sky-high tobacco taxes. One in five packs of cigarettes in Ireland is smuggled; they’re an “illegal tobacco heaven”.

They are lucky to have not yet gone the same way as Australia, where the tobacco smuggling industry is so profitable that criminals are willing to commit arson and even kill to protect their market share; those same smuggling gangs pave the way for people smugglers and increase crime of every kind in Australian cities. There is a real likelihood that even an attempted ban along this border will be calamitous for the region.

This leaves aside the political point: what message does this attempt send? That Westminster is happy to legislate for England, Scotland, and Wales; but indifferent to whether those same laws can function in Northern Ireland. After all the promises of “taking back control,” we now face a scenario where an EU directive could override British law on British soil.

It’s difficult to think of a clearer illustration of how Brexit’s compromise arrangements have fractured the idea of one United Kingdom under one law. Northern Ireland is left behind, shackled to a regulatory regime no one there voted for.

Britain is not wrong to want to reduce smoking. But if our health policy comes at the cost of legal coherence, economic sanity, and political stability – especially in the most constitutionally fragile part of the country – then there would have to be really good evidence that this will work spectacularly well. And there isn’t.

The sad fact is that after years of high rhetoric about the sanctity of the Belfast Agreement, the Government now risks undermining Northern Ireland’s legal and economic alignment with the rest of the Union. A cynic would be justified in wondering, seeing the province overlooked like this time and again, just how much of the noise during the Brexit process, ostensibly to protect Northern Ireland’s interests, was actually about pressuring the then-government into a full customs union.

At any rate, the government today is determined to ignore this problem – until it explodes.