Is it your ‘human right’ to access theatres and nightclubs if you’ve not been jabbed?

27 November 2021, 20:47 | Updated: 27 November 2021, 20:53

Do you have a ‘human right’ to go to theatres and nightclubs if you’ve not been vaccinated?
Do you have a ‘human right’ to go to theatres and nightclubs if you’ve not been vaccinated? Picture: LBC
Daniel Barnett

By Daniel Barnett

Do you have a ‘human right’ to go to theatres and nightclubs if you’ve not been vaccinated?

I’ve just come back from five days in Cambridge, in Massachusetts, USA. On my first night, I went to a restaurant called ‘Cambridge Common’; I had to show proof of double vaccination at the door in order to eat in. And I’d had to show proof of vaccination, and a negative LTF, to be allowed to fly. It made me feel safe. But many British citizens (indeed, citizens throughout the world) find the concept of being vaccinated distressing.

Do you have a ‘human right’ to go to nightclubs, theatres, restaurants etc, if you haven’t been vaccinated? Linked to that, do you have a ‘human right’ to insist on privacy about your health records, including your vaccination status?

The short answer is: ‘no’.

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 '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.

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The interference with the concept of a 'private life' also requires the interference to be 'proportionate'. However, all States are given quite a wide discretion to decide where they're going to place the balance between public interest and private rights. In the context of international travel, I don't think anyone has ever suggested that requiring evidence of yellow fever or polio inoculation before you can enter a country is contrary to human rights. I would be astonished if courts held that a ‘human right’ exists to go to the restaurant or nightclub of your choice, whenever you want.

The hospitality industry has always been able to refuse entry on many grounds (as long as it’s not, for example, race or sexual orientation). If they choose, or the government requires them, to exclude those who cannot prove vaccination status, it’s no more an infringement on your ‘human rights’ than refusing you entry because you can’t prove you’re 18, or because the door attendant thinks you’re under the influence of drugs.

That’s not to say a government can force you to get vaccinated (as Austria is contemplating). That does raise real human rights issues. Back in 1853, the Vaccination Act required all children to be vaccinated against smallpox, and fined any non-complying parents £1. That law was introduced long before there was any legal concept of ‘human rights’, and has long since been repealed. And it is currently enshrined in statute that you cannot be vaccinated against your will; sections 45B and 45C of the Public Health (Control of Disease) Act 1984 expressly forbid the government from introducing compulsory vaccination.

But just as the government can say I can’t drive if I choose not to take a driving test, it’s also entitled to say I can’t go the cinema if I don’t have a Covid vaccination. That’s not the same as compelling vaccination and criminalising the failure to vaccinate. It’s merely recognising that people who choose not to comply with public health measures (whether learning to drive safely, or having a vaccine) cannot always expect to engage in activities which increase risk to the health & safety of others.