Law

Professor John Coggon, University of Bristol Law School (Centre for Health, Law, and Society)

Public health agendas require social coordination. Law is thus of fundamental importance. It secures the legitimacy and scope of institutional measures aimed at assuring the public’s health, and provides rules and regulations that themselves might protect and promote health. At public health law’s core is the necessarily contestable philosopher’s question, ‘what makes health public?’, as well as the public health activist’s question, ‘how can health be made public?’ With reference to child obesity, this essay explains how law may both serve, and be a constraint upon, public health activities. It also outlines the role of reasons, rules and principles as ‘evidence’ in the development of the social machinery required to promote and protect health.

Public health law and understanding child obesity

Public health law focuses on the manifestation, implementation and development of formally instituted rules, standards and practices in the overall social, political and regulatory environments. It is a broad field of study and practice, encompassing legislation and case law, as well as ‘softer’ modes of governance such as local authorities’ regulations and policies. It seeks to establish authoritative bases for health protection and promotion activities (eg empowering agencies to institute health policies), and any limits to potential public health agendas (eg allowing non-health rights such as religious freedoms to supersede health concerns). It also explains how, for example, private law measures may or may not be used to advance health. It is within legal constraints that health may be made public, and through legal or legally-supported measures that health interventions may be advanced.

In understanding child obesity, public health lawyers would explore and debate how existing legal structures frame the challenge, and ask what more the law – as it exists and as it may develop – might do to improve health. Children hold a special place in law, with welfare-focused state interventions in their lives justified in a way that is not true for adults. Nevertheless, there is no complete acceptance of paternalistic interventions.

Public health lawyers would be interested in epidemiological perspectives on potentially effective anti-obesity measures. The weight of evidence available from such perspectives tells us that child obesity invites a complex systems approach, implying the need for broad-ranging legal mechanisms to support and effect change. However, lawyers also look at further ‘evidence’, in terms of support from more diffuse – and potentially incommensurate – schemes of reasoning, leading to radical disagreement in practice.

Lawyers such as Lawrence Gostin accept and combine evidence from social epidemiology and philosophical theories of justice, using these to support the development of legal frameworks to advance population health. However, libertarian legal theorists such as Richard Epstein work from political and economic principles that reject such an approach, defending the ‘old public health’ and arguing that legal interferences with individual autonomy are unjustified and ineffective. In public health law, arguments are based not simply (or even primarily) on scientific reasoning. What is effective from a public health law perspective will be contingent on how and by whom a measure is to be put into practice.

Law can place general obligations on governmental actors to consider health in all policies. Consider the Well-being of Future Generations (Wales) Act 2015, which requires public bodies to set wellbeing objectives and do what is reasonable to achieve them. These objectives are set by reference to seven wellbeing goals, one of which is a ‘society in which people’s physical and mental wellbeing is maximised and in which choices and behaviours that benefit future health are understood’. In examining the implications for obesity, lawyers would debate the scope of this statutory duty, how it is implemented, and methods of monitoring how it is exercised and how it achieves accountability.

Such general health-focused obligations (where they exist) cannot supplant the need for directed legal measures. This means that lawyers would also look to areas where more specific legal authority is needed to achieve public health aims. These include the sources of public health agencies’ powers and duties, arguments based on human rights obligations, or the legal basis of measures such as the sugar tax. In each instance, law is a necessary tool for public health, and thus we need to understand how it has been established, and how it is applied or enforced.

We might also consider more disparate means of health promotion, identifying different legal levers that might be pulled. These could include private law mechanisms that protect consumers, family law provisions that make child welfare the paramount concern, or limitations on commercial freedoms to advertise unhealthy foods. Individual legal rights and obligations can contribute to a healthier regulatory – and ultimately social – environment.

Law and governance for the public’s health

When considering a transformative agenda – such as reducing child obesity – public health lawyers look to legal rules and principles and examine how relevant actors and institutions may legitimately promote health. As indicated previously, lawyers do not speak with one voice: interpretation, application and monitoring are constrained by differences of opinion on the strength of reasons that support the legitimacy and practicability of legal and regulatory foundations for different powers and measures. Furthermore, different institutions respond differently to different sorts of reasons.

In the courts, ‘evidence’ from public health law will be bound up in understandings of legal procedures, rules and principles. Advocates advance their reasoning through arguments about the best interpretation of laws and regulations, the application of precedent and reasoning by analogy. The courts do consider scientific evidence, but alongside and by reference to values, principles and rules that are not born of science. In the context of political bodies that implement and create public health laws and regulations, further modes of ‘evidence’ will be needed. For bodies such as local authorities, ‘evidence’ will include the legal basis of their powers: what may they do and under what constraints? Could a public authority, for example, deny junk food outlets a right to operate near schools? ‘Evidence’ here will not be determined just by the wording of the legal power, or scientific evidence: political and other practical reasoning will also be crucial. With parliament, related but distinct points arise. In legislating to reduce children’s consumption of obesogenic products, public health agendas will be restricted by political commitments, parliamentary time and public discourses and priorities.

Conclusion

Laws are part of the social environment. They support and limit public health agendas. Evidence within public health law is context dependent, and rests on reasoning and value judgments that are quite distinct from – potentially anathema to – evidence-based policy. Public health may be a science, but it is also an art. It rests on philosophical and social commitments that cannot be understood purely through scientific methods. Law brings theoretical and practical understandings of the interplays and contests between legal, political and other modes of reasoning, and of the distinct powers and competences of different institutions. In creating laws and regulations, political and legal reasoning are vital. In implementation, we must understand legal duties, as well as legal and political methods of accountability and enforcement. Without legal understanding, there cannot be a full appreciation of the strength and viability of approaches to improving the public’s health.

Previous Next