Defending the freedom of businesses means curtailing the freedom of individuals
When we published our interview with Lord Sumption a couple of weeks ago, we thought it was the former Supreme Court Justice’s open discussion of breaking the law that would attract most attention. Nearly 250,000 YouTube views later, it’s clear that in fact it was his comments accepting the inevitability of domestic vaccine passports that most surprised and shocked his fans. Scroll down the nearly 6,000 comments and you’ll witness nothing short of a feeling of betrayal from those who had felt he was fighting for liberty and had given in on a crucial point.
Today it was Boris Johnson’s turn to shrug his shoulders at the concept that pubs might demand proof of vaccination before allowing customers entry. Number Ten later clarified that a negative test result should also suffice, but the Covid Research Group of MPs is already upset. Steve Baker describes it as a “ghastly trap.”
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The reason I wasn’t especially surprised by Lord Sumption’s — or Boris Johnson’s —acceptance is that it isn’t really a betrayal of libertarian values at all: in fact they are calling on the traditional libertarian principle of the freedom of businesses to act as they please. As the Prime Minister put it, it should be “up to individual publicans”, and in Sumption’s example, he did not see how a theatre could be forbidden from demanding reassurances that its customers wanted to feel safe.
In a sign of how topsy-turvy our politics have become, I heard the same argument being made by the pro-censorship side in two public debates I took part in in the past month on the subject of free speech. In both an Intelligence2 debate and a debate at my old school, the people arguing that it was right to ban Donald Trump from social media reached for the same libertarian argument: Twitter and Facebook are private enterprises, and must be allowed to choose their own entry criteria. So progressives wishing to “deplatform” people whose views they dislike are making a libertarian argument to do so.
If to be ‘libertarian’ is to mean being concerned for liberty rather than simply an ideological objection to state interference of any kind, the philosophy urgently needs an update. Because these days, the threats to freedom are just as likely to come from a business as from a government — indeed governments need to restrain over-powerful businesses precisely in order to protect the freedoms of the people that use their services.
Clearly, in the case of vast international platforms like Twitter or Facebook, it is easier to make the argument that they should be treated as public utilities and regulated as such. The astonishing disappearance of Donald Trump from our public consciousness since the election — welcome as it may be to many — is a chilling sign of just how effective that form of censorship can be. His team may talk about creating his own network but he’s hardly going to amass hundreds of millions of followers any time soon.
In the case of an airline, similarly, you might say that realistically customers don’t have genuine choice and so a ban on unvaccinated people such as pregnant women would be discriminatory.
But what of the humble pub? There are tens of thousands to choose from — surely Boris Johnson could allow vaccine passports to be a decision for the individual publican and keep his libertarian credentials intact?
I would argue not. Public houses, as their name implies, are not simply an optional service where customers can choose to go elsewhere. They are required to allow you in — they are even legally required to offer you free drinking water on request. They are in many cases the centre of a community and the only option available — a crucial part of the public infrastructure of our country.
To allow people to be banned on the basis of health status would be a major step — and observe how the arguments that allow it are libertarian in nature. A state truly devoted to protecting liberty and preserving minority access to public goods, instead of intuitively taking the side of business, would not wave this measure through so casually.