Response to government consultation on “vaccine passports”

The UK government has opened a review on “COVID-Status Certification” also-known-as “vaccine passports”.

This is my response (based on help provided from Big Brother Watch).

Dear Minister,

I wish to add my voice to the large and growing number of people in the UK who wish to express our extreme scepticism to the concept of so-called “vaccine passports”. Specifically, I am writing in response to your call for evidence on COVID-status certification.

I have a number of concerns related to profound issues regarding civil liberties, human rights and equality. I firmly believe that the government should legislate to prohibit private companies from using COVID-status certification as a requirement for customers or staff.

At the outset I would like to express extreme concern at the validity of this consultation. Four days after this call for evidence was opened, the Culture Secretary was reported to be planning the use of COVID-status certificates for large stadium events this summer. I am further highly disturbed that the Prime Minister, the Chancellor of the Duchy of Lancaster, the Minister for COVID-19 Vaccine Deployment among others may have misled parliament and the public by not only issuing assurances that there was no intention to use vaccine passports at all, but by later planning their use just days after opening a review to consider whether their use would be lawful, ethical or effective.

In response to the specific consultation questions.

Question 1 : Which of the following best describes the capacity in which you are responding to this call for evidence?

I am a: g) an individual

Question 2 : In your view, what are the key considerations, including opportunities and risks, associated with a potential COVID-status certification scheme? We would welcome specific reference to:

a) clinical / medical considerations

It is well understood from the science that vaccination status is an invalid basis on which to declare an individual as at low risk of transmission. There is currently no conclusive, peer-reviewed evidence on the effect of the COVID vaccines on transmission of the virus, and very little on vaccines and COVID transmission relating to the older age groups.

The insufficiency of evidence on the impact of COVID vaccines on transmission of the virus is one of the reasons that the WHO specifically advises against vaccine requirements as a condition of international travel.

Further, the Royal Statistical Society COVID-19 Taskforce on 5th March 2021 has stated that the tests that would likely be used to define applicability for a “vaccine passport” could potentially lead to a significant number of false positives thereby significantly impacting on people’s rights.

As an alternative during this period of exiting lockdown, I believe the emphasis should be on strong medical support for those who are infected, rather than treating the whole nation as potentially infectious. This means encouraging and supporting people to isolate and take a reliable test either following the onset of COVID symptoms or exposure to an individual who has tested positive via a reliable test, and improving the NHS Test and Trace system.

b) legal, (ethical and equalities) considerations

The effect of COVID-status certification would be to socially and economically exclude people without a COVID vaccine or recent test result and deny them basic freedoms. In doing so, some of the most marginalised in society would suffer either direct or indirect discrimination.

Article 14 of the European Convention on Human Rights and the Equality Act 2010 protect individuals from unlawful discrimination. Under equality law, it is unlawful to discriminate against people with ‘protected characteristics’, many of which are engaged by COVID-status certificate proposals, including age, disability, pregnancy and religion or belief.

If the Government allows society to be segregated according to vaccination status:

Young people would be discriminated against, since there will be lower and slower vaccine uptake as young people are both generally at a low risk of serious illness from the virus and last in line to be offered a vaccination. There has already been a catastrophic impact to the employment chances of young people during the pandemic and “vaccine passports” have the potential to make this significantly worse.

Disabled people could be discriminated against as some medical conditions prevent individuals from being able to receive a vaccination.

Pregnant women would be discriminated against, as covid vaccines are not routinely advised for them and whilst clinical trials are ongoing, women may be cautious about vaccines whilst pregnant, breastfeeding or trying to conceive.

Some people with religious or other beliefs may be discriminated against, if those beliefs deter them from receiving a vaccine.

Discrimination, inequality and unfairness would be caused not only by medical eligibility for vaccination but by accessibility of vaccinations. Research indicates that people from ethnic minority groups, people with lower levels of education and lower incomes are the most ‘hesitant’ or unlikely to receive COVID vaccines (Fancourt, Paul & Steptoe 2020). Further, many of the estimated 1 million undocumented migrants in the UK are fearful of accessing health services due to punitive data sharing as part of hostile environment policies and may be more apprehensive still if COVID-status certificates become an everyday requirement. We cannot simply erase histories and experiences of discrimination and hostility that have created distrust. In fact, vaccine segregation would only deepen discrimination and alienate people even more. This would be disastrous for trust in public health authorities when trust has never been needed more.

Finally, there are billions of citizens of the world who simply will not have access to COVID vaccines for several years to come. As we emerge from the pandemic, disproportionate vaccine requirements should not unfairly impede the rights and freedom of movement of individuals from lower-income countries.

The alternative to vaccination evidence, which is a recent test result, also carries legal and ethical problems. Firstly, under even the most extreme UK law, required medical testing is only possible if an individual is known to be potentially infectious (Coronavirus Act 2020). Further, pre-existing public health law only allows a medical examination to be ordered by a magistrate if a person is believed to be infected or contaminated (Health and Social Care Act 2008). However, COVID-status certificates would effectively make medical testing mandatory for all, treating all citizens — and particularly those with protected characteristics who are unable to receive a vaccination — as potentially infectious. The onerous burden of healthy people having to undergo frequent medical testing in order to enjoy basic rights could also lead to a loss of earnings and, if/when tests are no longer free, could incur financial penalties.

c) operational / delivery considerations

The cost to the public purse of mass testing and the development of a mass COVID-status certification infrastructure is likely to be astronomical, despite the lack of benefits and severe risks. Given the government’s disastrous handling of Test and Trace and the associated massive budget spend for very little return it seems prudent not to risk the same thing happening again.

d) considerations relating to the operation of venues that could use a potential COVID-status certification scheme

COVID-status certification would be burdensome for venues which would not only be liable to legal challenges from customers and staff, but have to undertake to verify a genuine COVID-status and deny entry to individuals without one. In most public environments such as supermarkets, shopping centres, entertainment venues and restaurants etc. there are no access control mechanisms meaning venues would have to create checkpoints for customers and staff to enter and install security staff to enforce requirements. This would not only lead to increased costs for venues but the likelihood of conflict and altercations and increasingly oppressive environment for citizens.

e) considerations relating to the responsibilities or actions of employers under a potential COVID-status certification scheme.

The legal issues outlined above apply to employers, who cannot unlawfully discriminate against current or potential employees. Even if an employer believes they are able to lawfully offer a general service (e.g. a cruise) to exclusively vaccinated individuals, it would be wrong and potentially unlawful to demand that current or prospective staff undergo medical treatment (e.g. vaccination) or medical testing (e.g. LFT) as a condition of employment. These issues merit serious consideration.

f) ethical considerations

See (b)

g) equalities considerations

See (b)

h) privacy considerations

COVID-status certificates present an unprecedented privacy intrusion. Never before have individuals needed to demonstrate their health status or indeed any medical information to enjoy day to day freedoms. The requirement to use an app or, for individuals without a smartphone, a QR code relating to sensitive medical data engages Article 8 privacy rights, GDPR and the Data Protection Act 2018. This privacy intrusion would be widespread and, in my view, challengeable.

The UK has a proud history of opposition to ID cards. We are not a papers-carrying country. COVID-status certificates would turn us into a two-tier, checkpoint society where we each have to show an app or certificate simply in order to enjoy public life. This would be a serious break from our long-guarded democratic traditions, respect of privacy, and would most disadvantage marginalised people. The combination of apps with sensitive health data and the subversion of everyday businesses and events into checkpoints could constitute the biggest expansion of surveillance ever seen in the UK.

It has been suggested that exemptions could be created to allow certain unvaccinated people with protected characteristics into spaces governed by COVID-status certificates and/or where only vaccinated people are permitted. As outlined above, I believe there would be serious legal and ethical issues with such controls — but there would be serious privacy issues too. Others may deduce that the exempt or unvaccinated individual has health problems, is pregnant, or has a certain belief system. This is not only an invasion of privacy but could lead to disadvantageous treatment, particularly in an employment context.

Bodily autonomy is an important aspect of the right to privacy. Compulsory vaccination, as an involuntary medical treatment, amounts to an interference with the right to a private life (Solomakhin v Ukraine).

I believe individuals have the right to make their own choices about their own bodies. UK laws generally respect medical consent and mandatory vaccines are prohibited under the Public Health Act. However, COVID-status certificates would clearly cause people to feel coerced into receiving vaccines to avoid the onerous alternative of constant medical tests or, worse, reduced freedoms. They would have a similar effect to mandatory vaccine policies, which are typically imposed by exclusion or penalties for those who decline vaccines. The penalty of reduced liberties for otherwise healthy individuals who decline a certain medical treatment or test would mark a grave change in our public health system and rights record as a whole.

In conclusion that mass popular opinion, in conjunction with a number of thinktank reports about to be published recommending against “vaccine passports” should make the government reconsider this entire course of action before it becomes another expensive litigious situation introducing even more uncertainty to the public as we begin to move out of the pandemic.

Yours sincerely

David Durant