Vaccine Certification: A Threat to Human Rights?
The latest controversy surrounding Covid-19 UK regulations involves the potential implementation of vaccine certification, as stated by Prime Minister Boris Johnson on 25th March 2021: “[T]here is going to be a role for certification”. [1] Due to consistent contradictions made by Government Ministers as regards vaccine certification since March 2020, this statement neither resonates confidence nor instils it in British viewers. Nevertheless, if such certification were to be introduced, it was reported in February 2021 that it would likely be incorporated “into the existing general NHS app” (notably different from the NHS Track & Trace app).[2] The argument behind such course of action is this: If an individual does not pose a threat to society there exists no ethical basis upon which to contain them. The provision of human rights has always been a test of proportionality, as one person’s right to freedom of movement must be balanced against another’s. Consequently, multiple causes for concern arise in the premature implementation of vaccine certification within the UK.
Firstly, there exists the medical uncertainty surrounding the effectiveness of the vaccine. The latest announcement from the World Health Organisation addressing vaccine certification was made on 2 December 2020, when a “call for nominations of experts” was made “to contribute to the Smart Vaccination Certificate technical specifications and standards”.[3] Following this observation, WHO further advised member states against introducing “requirements of proof of vaccination or immunity” before this research was published due to the risks posed to society by such premature regulations.[4] Consequently, this report acknowledges the unreasonableness of the imminent introduction of such measures.
Despite repeated calls for ‘challenge studies’ (high-impact medical trials for Covid-19) and almost 40,000 volunteers willing to take part in such trials, there is yet to take place a study to determine how much the vaccination reduces the risk of transmission.[5] Without such conclusive evidence, premature use of vaccine certification may risk an increase in the transmission of Covid-19 contributing towards another global outbreak.
Of further importance are the potential privacy and data protection risks posed by the implementation of vaccine certification. Over the previous year British society has arguably become increasingly accepting of a wide range of personal data being recorded and made readily accessible through the NHS Track & Trace app. Such public acceptance of new data privacy standards has proven to be a necessity towards tackling the spread of the virus. However, the need for proportionality must nevertheless be considered when further invading people’s privacy.
As has been recognised by UK Information Commissioner Elizabeth Denham CBE, handling such “special category of data … requires control” and increased consideration of potential violations of people’s privacy rights.[6] The serious consequences that could potentially arise following failure to protect such sensitive information must be taken into consideration when introducing such an app. Therefore, an increased level of Parliamentary scrutiny must be afforded any Government decision to implement vaccine certification than is currently being permitted under the 1984 Act.
Continuing on, there exist concerns regarding possible violations of individuals’ right to freedom of movement. Whilst seeking to protect one group’s rights, this must not disproportionately discriminate against another’s. As acknowledged by PM Boris Johnson, vaccination certification holds the potential to discriminate against people who, despite having been offered the vaccine, either cannot (for medical purposes) or choose not to take it. The right to refuse vaccination, however debatable a decision, is a respected Civil Liberty within the UK. However, the urgent need to obtain herd immunity through vaccination must be considered to prevent the continued increase of our already inflated death count. Nevertheless, it remains the case that if vaccination certification was introduced into this environment without adequate scrutiny, a disproportionate violation of one sector’s right to liberty could easily take place.
Katrina Plamondon, Assistant Professor at UBC Okanagan and Expert in Health Equity, effectively summarised the potential equity discrimination that may occur between countries following the introduction of vaccine certification.[8] As effectively stated by Plamondon, “we have a current situation where the world’s wealthiest countries … have access to the vast majority of a scarce resource”, that is the vaccine.[9]Consequently, the use of vaccination certification to open up the indulgence of leisure travel arguably allows the wealthy to “circumnavigate the most difficult consequences of the pandemic”.[10] Opening up cross-border travel for leisure purposes could discriminate against; (a) individuals residing in countries which cannot afford the vaccine; and, (b) individuals residing in countries that do not provide for free healthcare, and themselves cannot afford the vaccine.
As aforementioned, the NHS Track & Trace app presents a suitable example of this Government’s attempt to make readily accessible private information on the entire population in order to control the virus. However, this attempt has been widely referred to in hindsight as the “Covid-19 test and trace scandal”, marked by extortionate cost, limited effectiveness and overwhelming potential ECHR Article 2 (right to life) violations. [11]In light of this ‘scandal’ and lasting public outcry, it seems questionable whether this Government would be able to meet the required investigatory standards for vaccine certification necessary to avoid the above breaches.
The PM has accepted the “moral complexities, [and] ethical problems” which do arise if the requirement for vaccine certification were enforced for daily activities within the UK.[12] However, whilst specifically stating some of the issues inherent in introducing vaccination certification within the UK, Johnson avoided mentioning any potential cases of discrimination that may arise in cross-border travel for leisure purposes. The Government’s review of COVID-19 certification, scheduled to be released either the 5th or 12th of April 2021, shall hopefully address these further issues, including:
(i) When would be a suitable time to introduce such technology to avoid disproportionate discrimination against minorities?
(ii) How do we prevent the risk of such invasive measures for the monitoring of people from becoming an accepted norm, further jeopardising our privacy rights?
(iii) And, for how long would this temporary measure remain in place in an attempt to exit UK lockdown?
Consequently, Denham was recorded stating to MPs that any proposal for the implementation by Government of vaccination passports would be approached by considering whether it is necessary, functional, proportionate and transparent. The Royal Society has further contributed to the investigation into an effective and proportionate introduction of vaccine passports by publishing its report entitled Twelve criteria for the development and use of COVID-19 vaccine passports. This report has been labelled by legal experts such as Clare Sellars, counsel for Ropes & Gray LLP, as a “note of caution”, signalling that if these requirements are not met, breaches of individuals’ rights shall likely be compromised.
[1] Evening Standard (2021) PM: Covid passports may not be possible until ‘absolutely everybody’ offered jab. Interviewing PM Boris Johnson. Accessible at < https://www.youtube.com/watch?v=QR9Kpa0iy-Y> [Accessed: 22.03.2021] At 0:15min
[2] Hodgkin R & Haddon C. & Sasse T. (2021) Explainers: Vaccine Passports. Institute for Government. 24 March. Accessible at < https://www.instituteforgovernment.org.uk/explainers/vaccine-passports> [Accessed: 22.03.2021]; Kelion L. & Cellan-Jones R. (2021) ‘Covid-19: How would an NHS vaccine passport app work?’ BBC News. 24 February. Accessible at https://www.bbc.co.uk/news/technology-56198552 [Accessed: 22.03.2021]; Smyth C. (2021) ‘NHS app to be converted for vaccine passports’ The Times. 24 March. Accessible at https://www.thetimes.co.uk/article/nhs-app-to-be-converted-for-vaccine-passports-r0xx0mflp [Accessed: 22.03.2021]
[3] WHO Headquarters (HQ) (2020) World Health Organization open call for nomination of experts to contribute to the Smart Vaccination Certificate technical specifications and standards. 2 December. Accessible at < https://www.who.int/news-room/articles-detail/world-health-organization-open-call-for-nomination-of-experts-to-contribute-to-the-smart-vaccination-certificate-technical-specifications-and-standards-application-deadline-14-december-2020> [Accessed: 22.03.2021]; Jones E. (2021) International monitor: vaccine passports and COVID status apps. Covid-19 Technologies, Ada Lovelace Institute. 15 March. Accessible at < https://www.adalovelaceinstitute.org/project/international-monitor-vaccine-passports-covid-status-apps/> [Accessed: 22.03.2021]
[4] ibid.
[5] 1DaySooner (2021) We Advocate for people who want to participate in high-impact medical trials, including COVID-19 chellange trials. Accessible at < https://www.1daysooner.org> [Accessed: 22.03.2021]
[6] Wright M. (2021) ‘Vaccine passports could have human rights implications, watchdog warns’ The Telegraph. 26 January. Accessible at < https://www.telegraph.co.uk/news/2021/01/26/vaccine-passports-could-have-human-rights-implications-watchdog/> [Accessed: 22.03.2021]; Tingle R. (2021) ‘Vaccine passports could pose data privacy risks and create a ‘two-tier society’ based on who’s had the jab, watchdog chief warns MPs’ MailOnline. 27 January. Accessible at < https://www.dailymail.co.uk/news/article-9188929/Vaccine-passports-pose-data-privacy-risks-watchdog-warns.html> [Accessed: 22.03.2021
[8] CBC News (2021) The case against a COVID-19 vaccine passport. Interviewing Katrina Plomondon. Accessible at < https://www.youtube.com/watch?v=56mhWBG0lRc> [Accessed:22.03.2021]
[9] ibid. At 3:30min
[10] ibid. At 3:50min
[11] Czauderna J. & Jones B. & Kelly S. & Payne N. & Redgrave P. & Shepherd J. (2021) Covid-19 test and trace scandal—it’s not too late to change the story. thebmj.com. Accessible at < https://blogs.bmj.com/bmj/2021/03/19/covid-19-test-and-trace-scandal-its-not-too-late-to-change-the-story/> [Accessed: 22.03.2021]
[12] Evening Standard. PM: Covid passports. Boris Johnson
