Roger Kiska (Christian Legal Centre) asks whether the government’s exploration of mandatory vaccination or vaccination passports can be justified.
Of all tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive. C.S. Lewis
The government recently closed a two-week consultation seeking evidence on Covid-Status certification. Our response can be viewed here. The Government has also announced a review into introducing a Covid vaccine certification system or vaccine passports. That call for evidence is open until 3 May 2021. Of note, is that the European Commission has also taken steps towards developing an EU-wide vaccine passport.
Additionally, the government has signalled that it wishes to make vaccines compulsory for care home workers. Moreover, UK Vaccines Minister Nadhim Zahawi has also hinted at the possibility of churches requiring a vaccine passport from the public. The Court of Protection has also put its proverbial two cents into the mix, overruling the wishes of a Cornwall man who did not want his elderly and incapacitated mother to receive the vaccination. In its deliberations the court ruled that it had to step into the woman’s shoes and decide what she would have wanted and what was in her best interests.
This article addresses some of the issues involved in mandatory vaccines or vaccine passports. The purpose of this article is not to take an opinion about the value of Covid vaccinations or to try and dissuade those who wish to be vaccinated from doing so. To be clear, the scope of this article relates only to the question of government overreach with regard to vaccines for Covid-19.
The Legal State of Play
Currently, section 45E of the Public Health (Control of Disease) Act 1984 prohibits the mandatory use of vaccines. Section 45E reads: “(1) Regulations under section 45B or 45C may not include provision requiring a person to undergo medical treatment. (2) “Medical treatment” includes vaccination and other prophylactic treatment.” Sections 45B and 45C, as referenced in Section 45E, deal with the power to make regulations in relation to international travel and domestically.
The move here domestically would be completely out of step with modern practice. In 1853 vaccines were made compulsory for all newborn infants but this was discontinued in 1971. Since then, no other UK government has contemplated such a significant move.
The Jurisprudence
There is no doubt that the government has a legitimate interest in preventing the spread of disease and that an element of vaccinations is not only protecting those who have taken it, but also protecting third parties. However, in law, having a legitimate aim in mind does not give the government carte blanche to act, particularly where doing so has such a significant impact on personal freedoms. The legal standard then is whether the action taken by the government to infringe on certain personal rights is narrowly tailored and proportionate to the legitimate aim being sought and whether it is necessary in a democratic society.
The Solomakhin case was the first to clearly establish the finding in European law, transposed into UK law through the Human Rights Act 1998, that: “[c]ompulsory vaccination – as an involuntary medical treatment – amounts to an interference with the right to respect for one’s private life, which includes a person’s physical and psychological integrity, as guaranteed by Article 8(1).” Article 8 of the Convention deals with private life, as well as personal and family autonomy. The proportionality test, the European Court of Human Rights concluded, must take into account the specific vaccine and its suitability to the individual in question.
Elsewhere the Court found that: “…free choice and self-determination were themselves fundamental constituents of life and that, absent any indication of the need to protect third parties, the State must abstain from interfering with the individual freedom of choice in the sphere of health care, for such interference can only lessen and not enhance the value of life.”
Concerns About Safety and Vaccination
The case can be made that, at the time of writing, scepticism about the safety or efficacy of existing Covid vaccines is understandable. Leaving aside the more conspiratorial concerns some people have, we can note a number of reasonable anxieties about the vaccines:
- Vaccines for Covid-19 have been fast-tracked for approval and rolled out faster than any comparable vaccine. Some people are concerned if longer-term effects of vaccinations could be missed through such tests.
- Vaccine producers have been given legal indemnity from being sued where patients suffer complications from the vaccine. Some people may be concerned that corners may be cut.
- The AstraZeneca vaccine has faced criticism from major politicians around the world and in the press, including links to blood clots. When even some rare cases appear to be linked with deaths, it is reasonable for people to have concerns.
- Tools like the Yellow Card scheme and VAERS (in the US) allow people to report possible side effects of vaccinations. Although this information is often unverified, it is understandable that people are concerned by reports of 970 deaths linked to vaccines.
- Current UK guidance says that those who are pregnant should not routinely have this vaccine. UK guidance previously recommended that breastfeeding women were also not to be vaccinated. Both of these policies may be more due to precaution than any evidence that the vaccines could lead to complications; but again, it is reasonable for women in this position to be hesitant about vaccination.
- Some people, including Christians, have ethical concerns about the manufacturing and testing of the vaccines that are currently available.
Many Christians will not judge these concerns to be significant enough to avoid being vaccinated. But some will. In a world where explicit, informed consent is needed to send promotional emails or store basic cookies on a person’s computer, it is incongruent to compel people to receive relatively novel medical treatment. What happened to ‘my body, my right?’
To underline the point, it is possible that none of the views above are correct or wise. But are they cogent? Are they genuinely and seriously held?
Not only would it be disproportionate to make Covid vaccination mandatory, or at least to create a scheme where those who do not take it suffer detriments such as lessened freedoms, it would be wholly irrational. Where one possible side effect of the Covid vaccination could be death, it would strain credulity to suggest that anyone but the individual themselves should be the sole arbiter of whether to take the vaccine or not. Many will judge the risk of Covid itself is greater than the vaccinations but for some, who perhaps have already recovered from Covid, the risks will outweigh the benefits.
Talk of Covid passports may strong-arm some wavering people into being vaccinated. But it also may harden opposition to vaccination among the more sceptical. Some will ask “if these vaccines are so good, why would they force them on people rather than trusting them to decide?”
Grounds of Religious Belief and Conscience
Any scheme which would unduly punish an individual, either by pecuniary means or by removing freedoms or entitlements would also have a negative impact on religious freedom.
While Christians have divergent views on the issue of their faith and vaccines, the fact remains that there are Christians who refuse to get vaccinated because of their faith. Therefore, vaccination schemes which are essentially mandatory (whether strictly speaking or substantively so) can engage the protections guaranteed to believers under the Human Rights Act 1998. Like with the issue of physical integrity and private life (Article 8), a proportionality test is required to balance the competing rights.
Furthermore, religious freedom is as much an individual right as it is a collective right. Therefore, Christian beliefs against vaccines do not have to be a mandatory faith tenet of a person’s religion to engage the Human Rights Act 1998. All that is necessary is for that person to hold the belief seriously and cogently.
Pro-life beliefs, whether based on religious grounds or separate from them, are protected by Article 9 of the Convention. The taking of a vaccine which was developed with the use of fetal cells, the harvesting of which necessitated (even if in the distant past) the destruction of human life, is a serious issue of conscience for many people who identify as pro-life. The dissenting opinions of Judges Vuĉinić and De Gaetano in the Eweida and Others case, argued that instances of conscientious objection are not so much a matter of freedom of religion as they are of freedom of conscience. Freedom of conscience is mentioned in Article 9.1, but is not subject to any of the limitations in Article 9.2, meaning that once a genuine and serious case of conscientious objection is established, the state is obliged to respect it both positively and negatively. Whether or not this position would withstand further judicial scrutiny the imposition of a vaccination certification scheme would clearly cause a crisis of conscience for many and undoubtedly lead to much litigation.
Burden on Churches and Ministries
A further issue relating to vaccine passports or mandatory vaccination is that it creates a burden on freedom of worship and Christian education. Facility based mandates or individual restrictions facing those who do not have vaccination certification would do violence to the rights of churches, church organisations such as schools, and to individual believers. Any such schemes raise serious constitutional and human rights questions which require both proportionality and rationality. Recently, a Scottish court struck down Covid lockdown regulations which disproportionately impacted churches. The case of Philip v Scottish Ministers [2021] CSOH 32, supported by Christian Concern, challenged both the constitutionality and proportionality of the Scottish restrictions as they specifically related to churches. What that case highlights is that paternalism, where laws are imposed on the supposition that they are in the best interests of the common good, but which cannot be evidenced as being necessary in a democratic society and narrowly tailored to safeguard essential freedoms, do not pass legal muster.
Churches may not be willing to implement Covid passport schemes. Matthew Roberts, Minister of Trinity Church York, has satirically explained the problem of creating two classes of Christians: the vaccinated and the un-vaccinated.
The Royal College of GPs also sees a plethora of other difficulties in implementing vaccine passports. For one, closing a number of essential services to those without a vaccine certificate could be deemed discriminatory in practice. They list hospitals, GP surgeries, and supermarkets as examples. They note police stations and courts as other possible examples. Moreover, the scheme would put a disproportionate burden on those in the population who are not tech savvy and would have difficulty following the proper procedures involved. It would also lead to even more paperwork for doctors who are already overstrained by the pandemic. Lastly, the Royal College argues that the holding of sensitive medical data could also cause legal issues. The latter point has already been addressed by the European Court of Human Rights, albeit not in the context of Covid. The Court in that instance determined that holding sensitive medical data without the express consent of the individual involved amounts to a violation of the Convention. Arguably, a scheme which takes away fundamental freedoms for those who do not consent to participate in it cannot be said to be voluntary.
Conclusion
When deliberating on the question of vaccine passports, the government would do well to remember the controversy surrounding national identity cards shortly after World War 2, which were finally removed in 1952 because of the tension they created between ordinary citizens and government agents. The last attempt to reintroduce national identification cards under the Blair government also failed with the repeal of the Identity Cards Act 2006. One of the glories of the United Kingdom, and the reason so many have fled their own countries to the safe shores of Britain, is freedom from government coercion. Forced vaccinations or the mandating of vaccination passports would do violence to this freedom which cannot be justified on proportionality or rationality grounds. The price is too high and there are too many legitimate concerns about the vaccines to make any such government action feasible.
