The blurred distinction between public and private

Tuesday February 9, 2010

The distinction, if any, between a private and a public space is about to be tested in a Canadian court, reports Martin Cullip, and the outcome will be interesting

One regularly disputed aspect of the UK smoking ban is the classification of pubs and private members’ clubs as public places. Historically, pubs were the home of an enterprising person who opened his doors to visitors for monetary reward from those who wished to enjoy relaxation in his private space. Even in modern times, licencees have every right to refuse entry to customers for any reason which takes their fancy; it’s their place, their rules.

In the case of private members’ clubs, the premises can be considered even more private as they are a micro-democracy, owned by the members and run with a policy decided by them, which specifically dictates that only those approved by the membership are allowed in. Or such was the state of affairs before government decided that any venue where people gathered is a public, and not privately-owned, place.

This has led to an absurdity in the legislation whereby a group of people are prohibited by law from setting up, for example, a smoking club, on their own privately-owned premises, which is only accessible to those who wish to enjoy the same legal product as they do.

The law has decided that they should be denied such a freedom. But what is the difference between that and a home owner holding regular evenings of tobacco debauchery in his house to entertain like-minded, free-thinking adults who are willing to contribute to the cost, or even to pay a premium for their host’s generosity?

Interesting

It’s an interesting question which is about to be tested in a Canadian court by someone who steadfastly refuses to accept that his private members’ club should be classed as public, and therefore accessible and able to be dictated to, by the government.

What’s more, he has attracted the support of highly respected lawyer, and former member of the Canadian Bar Association, Martin W Mason.

“This is not a smoking case,” says Mason. “That’s one of the dilemmas here, because smoking is evil. We have all been taught that, and it’s hard to see beyond that.

“But there are larger issues here. And one is whether we have the right to erect boundaries to which the state shouldn’t cross.

“What is the definition of a public place?” asks Mason. “The distinction between private and public, in my opinion, was not addressed properly by (the Ontario Court of Appeals).

“As it reads in the appeals court decision, I think an argument could be made that your home is now a public place.”

Although obviously not binding on this side of the Atlantic, one can only hope that Mason is able to legally restore the previously held assumption that a private members’ club is, indeed, private and not public, as a reminder to those in the UK who, as recent news reports suggest, seek to legislate against behaviour that they, personally, have deemed unacceptable in our own homes.