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Is it legal to use coronavirus passports in the UK?


The vaccination programme has been very successful, with over 30 million adults receiving their first inoculations and over 4 million, their second. Until the last few months, the UK government said that requiring coronavirus passports in order to access certain services and foreign travel was discriminatory and therefore would not be adopted.  This view now seems to have changed, and Boris Johnson will announce the interim findings of an investigation into this possibility on Monday 5 April 2021. But was the government right to have these initial concerns?

The main objections to the idea of a coronavirus passport are:

It is discriminatory

The argument is that requiring passports is indirectly discriminatory towards the following people: on the grounds of age, as young people are less likely to have been vaccinated; on the grounds of maternity and sex, as those who are pregnant may have been advised not to take the vaccine or may be reluctant to do so because of pregnancy; and on the grounds of disability, as some disabled people cannot have the vaccine for one reason or another. Indirect discrimination can of course be justified, and it cannot be questioned that the use of vaccine passports would have the legitimate aim of protecting public health.  However, whether such a move is proportionate may not be so straightforward. There may be less discriminatory means that could be used, for example mandatory rapid antigen testing and it would be reasonable to expect those in certain groups to be issued with vaccination exemption certificates, to ensure that they are not unfairly denied access. Moreover, there is doubt about whether the vaccine stops transmission of the disease, and as such one could argue that vaccination passports do not or may not achieve the aim of protecting public health.

The data protection issues are too great

Information about whether a person has had the vaccine is sensitive or special category personal data and therefore requires extra protection.  We expect that a robust system would require records of vaccination passports to be retained once seen.  However, without guarantees about how this information is to be stored securely, it may be that the data protection risks are overwhelming, particularly for smaller organisations.  The possible penalties are large, up to 20 million euros or 4% of annual turnover, whichever is larger.

It is an abuse of human rights and personal liberty

Some MPs have talked at length about these problems focussing on the fact that the introduction of something akin to ID cards is, in their view, not to be endorsed by a liberal, democratic society that has adopted the European Convention on Human Rights (“ECHR”) and particularly Article 8 with the respect to be given to private and family life.  However, the ECHR does not contain absolute rights – it lays out rights which may be interfered with by a public authority if it is necessary to protect public safety. Therefore, we consider that this objection can be overcome.

Practical difficulties

Such difficulties include the fact that there needs to be international agreement on what form passports will take, as well as consistency of approach if they are to be reliable and trusted – would governments need to work together to identify and root out fake vaccination passports? Should there be some form of verification service to allow an organisation to check that the passport presented is genuine? In addition, will vaccination passports prove to be useful at all, given that it will probably not be until autumn or winter that a significant proportion of the public will have had both of the required jabs? These difficulties may prove insurmountable unless it is agreed what form passports will take, and with many governments in the rest of the world battling the arrival of a further wave of cases, there may be little appetite for a co-ordinated international approach before the key summer holiday season. This may mean that passports do not prove to be the “silver bullet” which we are all hoping for.

We will wait and see what Boris Johnson says on Monday.

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