Daniel Barnett's guide to coronavirus vaccine passports - are they legal?

26 February 2021, 15:39 | Updated: 1 March 2021, 07:25

Daniel Barnett's guide to coronavirus vaccine passports - are they legal?
Daniel Barnett's guide to coronavirus vaccine passports - are they legal? Picture: LBC/PA
Daniel Barnett

By Daniel Barnett

Many organisations - from governments around the world to pubs and cinemas - are thinking about introducing vaccine passports, prohibiting entry to people who can't demonstrate they've been vaccinated against Covid-19.

Although there remains uncertainty about the extent, the growing consensus of medical opinion is that the vaccine impedes transmissibility of the virus.

Prime Minister Boris Johnson has said that vaccine passports raise “deep and complex issues”, and has announced a review about the feasibility and ethics of introducing vaccine passports, which is being led by Michael Gove and hopes to report by mid-June.

It's important to remember there's a difference between introducing domestic passports in the UK, which is covered by laws which Parliament can set, and vaccine passports for international travel, where we're going to be very much at the mercy of other countries setting their own policies about who they will let in, and airlines setting policies on who they will allow onto their planes.

What is a coronavirus passport?

Nobody really knows yet what a coronavirus passport will look like. At the moment, if you are vaccinated, you're given a card as proof and asked not to post copies of it onto social media to limit the chance for fraud.

But any eventual vaccination passport is likely to take the form, not of a piece of paper, but a digital document which allows you to prove your health status, such as the results of antigen and antibody tests or digital vaccination records.

It's most likely to take the form of an app on your phone, but also possibly a QR code or some form of wearable item, such as an electronic fob or bracelet.

If the passport is stored locally, on your phone or on a piece of wearable equipment, it means that there is less of a need for a central database containing your health data, which in turn reduces the privacy and data protection implications.

The Arguments ‘For’ and ‘Against’

The arguments in favour of vaccination passports are that they allow a swift return to ‘normal’ life without compromising on public health interests.

They allow organisations to open, perhaps without rigorous adherence to social distancing, and allow gatherings in larger groups to take place without causing another peak and thereby risking the NHS.

It's also said that vaccination passports are temporary: once herd immunity is reached, we won't need them any more.

The arguments against vaccination passports are both theoretical and practical. The practical argument is that vaccination does not prevent transmissibility, so you can still infect others even if you're unlikely to fall seriously ill yourself.

The theoretical argument against introduction of the vaccine is that it amounts to indirect vaccine compulsion and creates a second-class citizenry: although nobody will compel you to have the vaccine, if you don't, you can't enjoy the same rights and freedoms that the person living next door to you has.

There's also the overseas travel issue. Vaccination passports mean that countries without the high vaccination levels we have in the UK will be more willing to open their borders to UK travellers.

This is nothing new: many countries have required evidence of yellow fever vaccination or polio immunity for decades as a condition of entry, and requiring evidence of coronavirus immunity is just an extension of existing practices.

The International Air Transport Association (IATA) and United Nations’ International Civil Aviation Organization (ICAO) have also said they back the idea of vaccination passports.

Discrimination

In theory, parliament could pass new primary legislation creating two types of citizens' rights; one for people who can demonstrate immunity, and one for those who can't - but I think that's unlikely, at least for the moment.

So let's look at the current laws on discrimination, and see whether they provide any protection for people who don't want to be treated differently because they've refused to have the coronavirus vaccine. The basic argument is that vaccine passports discriminate against those who haven't had a vaccination, or can't establish immunity, because they ban them from access to services.

The Equality Act 2010 sets out the legal rules banning particular types of discrimination, offering comprehensive protection against discrimination on the grounds of age, disability, race, religion or belief, sex & sexual orientation, gender reassignment, marriage & civil partnership, and pregnancy & maternity.

It applies both in the context of the workplace, and also to those offering goods and services - which includes pubs, gyms, cinemas and restaurants.

It's immediately clear from that list that immunity from coronavirus is not a protected characteristic, so it doesn't fall directly under the Equality Act. But there's a form of discrimination called 'indirect discrimination' which is also banned by the Equality Act, and that occurs when:

(1) a business or service provider denies access to somebody because of a rule they've brought in- such as a customer has to have a vaccination passport

(2) that the rule impacts disproportionately on people with a protected characteristic, such as age, or pregnancy, or race; and,

(3) that there's no good business reason to justify the otherwise discriminatory rule.

There are some groups which are particularly affected by a rule that someone has to have a vaccine to enter a pub, or a restaurant, or a cinema.

For a short while, medical opinion advised against pregnant women having the vaccine, although that has now changed and my understanding of medical opinion is that pregnant women will normally be advised to have the vaccine.

But possibly because of the change of position, or simply due to understandable caution, many pregnant women may postpone the vaccination.

If so, then a requirement to show a vaccination passport impacts disproportionately against pregnant women. A much lower percentage of pregnant women will be able to get a coronavirus passport than non-pregnant women, or indeed men, because of vaccine hesitancy.

Likewise, until the vaccine is rolled out to the whole population, younger people are going to be less likely to get the vaccine, so unless they demonstrate immunity through a positive antibody test, such a requirement discriminates indirectly against younger people because of their age.

Third, some people may have a disability - which is a protected characteristic - which means they should not have the vaccine. The American Centre for Disease Control and the NHS are, at present, advising that those with autoimmune conditions can have the vaccine. But inevitably some medical professionals may take a different view, and further studies may yield different data.

Fourth, and finally, there is evidence only now beginning to emerge that there is a much lower takeup of the vaccine within the BAME community, and that for a variety of reasons, people of colour are less likely to be vaccinated and hence less likely to be in possession of a coronavirus passport than white individuals. More evidence will doubtless emerge on this, but it does seem that there is a credible argument that a requirement to have a vaccine passport indirectly discriminates against minority ethnic and racial groups.

So all in all, that's three groups who can claim indirect discrimination: pregnant women, younger people, and members of the BAME community, and those with specific disabilities who may also be able to, although that's less clear. Some also argue that those with strong anti-vaccination beliefs should qualify for protection under the protected characteristic of 'religion & belief', but for reasons I'm not going to go into on this video, I do not agree with that.

So, let us assume that a black person tries to go into a restaurant, is refused because he doesn't have a Covid passport, and wants to bring an indirect racial discrimination claim. He ticks the first two boxes for an indirect discrimination claim. Can the restaurant argue that its insistence on a vaccination passport is justified, which would be a defence to a claim?

I don't think so; it’s not straightforward, but I think the restaurant, or the cinema, or the pub, would struggle to establish justification.

There are two limbs to a justification defence. The first is that the restaurant has a legitimate aim which it is pursuing. That bit is obvious - of course it does. It's trying to impede transmission of the Covid virus amongst its staff and clients, and act in a socially responsible way to help prevent excessive illness and avoid overwhelm of the NHS.

But it's the second bit that I think the restaurant, or the pub, or the cinema, will struggle with. The second part of the justification defence is that the method of achieving that aim - i.e. show a vaccination passport or you can't come in - has to be proportionate, i.e. that there's no better way of achieving that aim without discriminating against pregnant women, against younger people, or against people of colour.

And I don't think a vaccination passport meets that test, for two reasons.

First, it's clear that having had the virus, or having had the vaccine, does not stop you passing it on to others. Yes, it reduces transmissibility, but it doesn't prevent transmission - particularly with the passage of time. So although impeding transmission is a legitimate aim, it's not clear that a vaccination passport is a particularly effective way of achieving it, which feeds into the overall question of proportionality.

Second, there are other ways of testing that somebody is not infectious, primarily using rapid antigen tests at the point of entry. They're not ideal - they don't have a 100% accuracy rate - but neither does vaccination have a 100% success rate. They're cheap if you buy in bulk, they're plainly safe for pregnant women, and they don't have the impact on younger people, BAME individuals or those with certain disabilities that a requirement for a vaccination passport has.

Although the issue of justification is more nuanced than I've been able to describe in this article, and although it's going to need a court to make the final decision, I think that a requirement by restaurants, pubs, cinemas etc to show a coronavirus passport at the point of entry is just about on the wrong side of the proportionality tipping point, and will be regarded as discriminatory, and therefore unlawful, by courts.

Human Rights

Article 8 of the European Convention on Human Rights requires the state - which includes the UK - to respect someone's private life. In the UK, we have the Human Rights Act 1998, which requires courts to factor in this right when interpreting the law is.

The concept of private life includes the protection of personal information concerning one’s health, such as biometric data. But nobody has an absolute right to privacy; public authorities can justify interference with this right under specific conditions, including “the economic wellbeing of the country” or “the protection of health”.

Any interference with the concept of a 'private life' requires that interference to be 'necessary'. In the context of vaccination passports, that box is likely to be ticked because of the urgent need to address the unprecedented economic consequences of the pandemic, and the unprecedented health consequences - which includes the mental health consequences of not being released from lockdown.

However, the interference with the concept of a 'private life' also requires the interference to be 'proportionate', and here, those arguing that vaccination passports are lawful are going to face similar difficulties to those trying to justify discrimination.

In the context of international travel, I don't think anyone would sensibly suggest that requiring evidence of yellow fever, or polio, innoculation before you can enter a country is contrary to human rights.

Overall, I suspect human rights will not be the issue that determines vaccine passports - its far more likely to be either discrimination or data protection law.

Data Protection

The Data Protection Act 2018 brings the European General Data Protection Regulation (GDPR) into force in the UK, and it remains in force post-Brexit.

Health data, such as vaccination records or the results of Covid 19 antibody tests, have a special, reinforced level of protection under Article 9 of the GDPR. It requires our laws to provide adequate measures to safeguard the rights and individuals even when the State, the UK, is pursuing public health interests.

It requires the UK to ensure that the data is properly stored and not misused by any public or private sector providers to whom, for example, app contracts might be given.

It also includes requirements for whomever stores such data to do so fairly, accurately, and confidentially.

But none of this makes vaccination passports unlawful per se; it just makes it unlawful for the government - or whomever it tenders responsibility out to - to do a rubbish job with vaccination passports or not have adequate systems in place to prevent data breaches.

Freedom of movement

Is there any way of attacking vaccination passports on the basis they impede freedom of movement?

The Universal Declaration of Human Rights states "Everyone has the right to freedom of movement and residence within the borders of each state." The problem is, the UDHR is not a legal treaty and it's not legally binding.

Freedom of assembly, which is similar, is protected under Article 11 of the European Convention on Human Rights. Again, that's not directly enforceable, but it does have to be taken into account in interpreting the law.

It states that: "everyone has the right to freedom of peaceful assembly’, which would include peaceful assembly in pubs, cinemas etc.

But that right can be restricted under a number of exceptions, one of which is the protection of health. So the European Convention is unlikely to be of much help.

Conclusion

As the law stands, I think the introduction of vaccination passports to preclude access to pubs, restaurants, cinemas, concerts and gyms is likely to be indirectly discriminatory against certain groups and, as a result, unlawful - although there are plenty of credible arguments and opinions the other way.

The cold, hard reality, though, is that if service providers start precluding access to those without vaccination passports, there's nothing in practice you can do apart from issue a claim in the county court; and that will take months or years to reach a conclusion.

What's also not clear is what the future holds. There is absolutely no doubt, even if I'm right and vaccination passports are unlawful, that parliament can introduce new legislation which takes vaccination passports outside the scope of the Equality Act.

I think that's unlikely, and it's even more unlikely before vaccines have been rolled-out to the whole population, but who knows? And as long as suitable protections are in place to ensure the security of data, vaccination passports are unlikely to breach data protection law.

Different questions apply for international travel, because UK law cannot affect what other countries have as their entry requirements.