CAJ writes to NI Executive on vaccine passportsNovember 16, 2021
CAJ has written an open letter to NI Executive Ministers in response to the proposed introduction of a mandatory Covid-19 passport scheme in Northern Ireland. The letter is reproduced in full below:
Re. Vaccine Passports
Given the Health Minister’s request to the NI Executive to consider making the production of a vaccine passport compulsory in certain social situations, I think it is important to write to you putting our view of the human rights position on this matter.
The first, crucial point is that international human rights law and standards do not equate to the libertarian demand for unfettered personal freedom irrespective of the effect on others. By law having to wear a seatbelt, for example, is not contrary to human rights, any more than is being obliged to wear an anti-covid mask on public transport to protect others. The second point is that we are still suffering a pandemic that has killed thousands of people and clearly requires exceptional measures to protect health.
Six months ago, after discussions with the Department of Health, CAJ published an analysis of vaccine or immunity passports in relation to the Human Rights Act which, as you know, brings the European Convention on Human Rights (ECHR) into effect in domestic law. That analysis is available here and is attached as a PDF for convenience.
The basic point is as follows: human rights are not a black or white matter. If an act, law, or regulation restricts human rights that does not necessarily mean it is wrong, only that its enaction must be justified in the terms laid down in human rights law. Any restriction must be in accordance with the law, for a legitimate aim, and necessary in a democratic society (which also means it must be proportionate to the aim pursued). That is the human rights test.
In this case, our analysis finds that a vaccine passport app would amount to an interference with the right to a private life, thus engaging Article 8 of the ECHR. The interference is (a) with the rights of those who could avail of a vaccine app, requiring the production of proof of identity combined with health status to access aspects of social life, and (b) with those who could not or would not qualify for a vaccine certificate, whose access to social life would be restricted.
Since Article 8 is engaged, Article 14 (anti-discrimination) will also be engaged if there is differential treatment on protected non-discrimination grounds. In the case of a vaccination passport, differential treatment is its fundamental purpose. It is designed to allow access to various services, freedoms or aspects of a social life for those who have such a passport and to deny that access to those who do not.
If people cannot access an app because of disability, medical conditions or genetic features there is clear interference with their right not to be discriminated against. The measure may also discriminate on the grounds of ethnicity and economic status, given the unequal take up of vaccinations, though, conversely it could encourage take-up.
So, there is some limited restriction of human rights, but is it justified? If proper regulations are passed by Stormont, then it will be according to law. The next question is, what is the legitimate aim of the infringement? It may be the protection of health, both the health of those in the social situation and by encouraging vaccine take-up or, less persuasively, it could be promoting the interests of economic well-being. However, that purpose cannot just be proclaimed – it has to be evidenced.
Any evidence produced, whether about the protection of health or the promotion of economic well-being, must be sufficient to demonstrate that the infringement of rights is both necessary and proportionate. “Necessary” means not that the measure is “useful” or “desirable” but that there is “a pressing social need” to adopt it. “Proportionality” measures the severity of the restriction to rights against the legitimate aim being pursued, not in the abstract but on the basis of evidence showing that restriction of rights will have an important social benefit.
The severity of the restriction of rights by a vaccine passport will depend on the social situations in which it is used. Restricting access to a night club is clearly a less severe infringement of rights than requiring production of a passport to access public transport, for example.
The application of human rights law and standards is always a balancing exercise. You cannot simply claim that the engagement of human rights ends the argument in your favour. Instead, it opens up the discussion to rational debate and gives a framework for coming to a decision. That is the human rights test described above.
We urge all Ministers to use the human rights test in the discussions to come.
Please direct media enquiries to Robyn Scott, Communications & Equality Coalition Coordinator on firstname.lastname@example.org or 075 1994 1203.