07 May COVID Passports and Human Rights: a Proportionality Litmus-Test
[Vivek Bhatt is a Senior Research Officer at the University of Essex and a member of the Essex Human Rights Centre. The project ‘Ensuring Respect for Human Rights in Locked-down Care Homes’ is funded by the AHRC as part of its UKRI COVID-19 Rapid Response funding scheme. Grant number: AH/V012770/1.]
Photo: Sarah Tew, CNET
In February 2021, the UK Government announced four programmes of work to consider how the UK will handle COVID-19 once a majority of adults have been offered a vaccine. One area of work relates to ‘COVID-status certifications’ (or ‘COVID passports’), which would use testing and vaccination data to regulate access to high-density events and venues such as nightclubs, pubs, or theatres. In March 2021, the Government issued a call for evidence regarding the legal, ethical, and operational aspects of the potential use of COVID-status certificates (CSCs). The call for evidence accelerated the ongoing debate about CSCs, with ‘jabs for jobs’ and ‘papers for pints’ becoming the slogans in campaigns against their use. In a debate in Westminster Hall, Members of Parliament warned that CSCs would create a ‘two-tier society’ in which those who cannot test or get vaccinated, or choose not to, are barred from work, housing, and public services. Others warned that the need to present a ‘vaccine passport’ to enter a pub would be incompatible with our ‘free society.’
CSCs clearly raise a number of important human rights questions. Unfortunately, much of the discussion so far has been marred by confusion. The use of the term “vaccine passports,” for example, has done much to derail debate. Critics have rightly observed that vaccine passports would be unavailable to whole segments of society who have not yet been offered vaccines, or whose condition (such as pregnancy) preclude vaccination. Such an arrangement would indeed raise very serious concerns about discrimination. But these criticisms miss the mark. The crucial point is that CSCs are not vaccine passports. A vaccine passport, by definition, would be available only to those who have been vaccinated. But the CSC proposal under review in the UK explicitly envisions a variety of pathways to achieving a ‘low risk’ certification. Vaccination might indeed be unavailable to pregnant women, but other pathways (such as COVID-testing) would be. So the oft-repeated objections about the impact on expectant or nursing mothers have proven to be something of a distraction.
Debate in civil society has also often been framed around the question of whether to introduce CSCs. The debate at Westminster Hall, for example, was prompted by an online petition that argued against “rollout” of such instruments. But this is to overlook the fact that certification of COVID risk status is already in use in various settings in the UK. Visitation guidelines for care homes is one good example. In England and Wales, each care home resident can now assign a ‘designated carer’, such as an immediate family member. This designated person can enter a care home to visit a resident, with some physical contact allowed. Crucially, however, a designated carer is able to enter a care home only upon providing evidence of a recent negative COVID-19 test. Another form of certification is available to foreign travellers arriving in England, who can end their mandatory quarantine after five days if they pay for a COVID-19 test and receive a negative result. So the policy question on the table is not really about whether to introduce CSCs. The question is about how to regulate their use to ensure compliance with human rights standards.
The Proposed Litmus Test
A paper written by researchers at the Essex Autonomy Project has recently been submitted in response to the UK Government’s call for evidence. The paper argues that, while the public consultation regarding CSCs is much-welcomed, there is an urgent need for a more systematic and focused human rights analysis of the various potential uses of CSCs. The widespread use of CSCs could worsen the inequality of opportunity faced by members of already disadvantaged groups including socially marginalised people and members of certain ethnic minorities, in which vaccine and testing uptake is particularly low. But the specific human rights implications of CSCs vary significantly depending on the setting in which they are used and the ways in which they are deployed.
The Autonomy Project paper calls for structured analysis of the implications of CSCs for rights protected under the European Convention on Human Rights (ECHR). It argues that where the use of CSCs engages one of the qualified rights enumerated in the Convention, such as the right to a private and family life, policymakers should consider whether that use is in accordance with the law, pursues a legitimate aim, and is necessary in the interests of society. The paper uses the example of care home visits to illustrate this litmus test at work, demonstrating how the compatibility of CSCs with human rights standards can vary depending on the particulars of their use.
Case Study: Care Home Visits
Consider a scenario in which CSCs are required for indoor visits to a care home. Those without a CSC are not barred from visiting altogether, but their visits are limited to outdoor visits with physical distancing. Such a policy has clear implications for the right to a private and family life (ECHR Article 8), which entails the right to form and maintain familial and social relationships. This right will be engaged by the use of CSCs insofar as they prevent certain individuals from visiting residents or limit the interaction between visitor and resident.
How would such a policy fare against the litmus test set out above? The first arm of the test – the measure’s basis in law – is easily satisfied. The UK Government’s guidance on care home visits has been issued in accordance with the Coronavirus Act 2020, a statute that is appropriately accessible and foreseeable as to its application (Reverend Dr William J U Philip and Others for Judicial Review of the Closure of Places of Worship in Scotland  CSOH 32 at 98). The ‘legitimate aim’ arm of the test is certainly also satisfied; the protection of public health, particularly the health of some of the most vulnerable members of our society, is indisputably a legitimate aim. Indeed, according to the UN Committee on Economic, Social and Cultural Rights, states must ensure that public health campaigns are aimed at the most vulnerable members of society. Implementing measures to protect care home residents from COVID-19 infection is a part of this duty.
In determining whether a rights-restrictive measure is necessary in the interests of society, UK courts apply a four-part proportionality test (Bank Mellat v Her Majesty’s Treasury  UKSC 39 at 74). This test considers whether (i) the objective pursued by the restrictive measure is sufficiently important to justify the limitation of a fundamental right, (ii) the measure is rationally connected to its objective, (iii) the measure is the least rights-restrictive means of achieving the objective, and (iv) the measure strikes a fair balance between the individual’s rights and the interests of society.
As noted above, the protection of care home residents’ health is undoubtedly an objective sufficiently important to justify some restriction on human rights. What about the other three arms of the proportionality test? In order to show that the use of CSCs is rationally connected to its objective of protecting care home residents, the Government must be able to demonstrate that the vaccines and tests currently available in the UK provide reliable evidence that a person presents a low risk of transmitting COVID-19 to others. In other words, the Government must be able to demonstrate how the measure is likely to achieve its objective. The Government must also be able to demonstrate that the use of CSCs is the least rights-restrictive means of protecting the health of care home residents. In order to do so, it must demonstrate that it has considered alternative measures and established that they are not likely to achieve the objective pursued.
In order to satisfy the fourth part of the proportionality test, the Government must be able to demonstrate that the requirement of CSCs to visit care homes strikes a fair balance between the individual’s rights and the interests of society. In most instances, it will. The use of verified testing and vaccination data will allow care home residents to reunite with their family and friends after a year of restrictions on visits. This will promote the enjoyment of Article 8 rights as well as the right to mental and physical health. Long periods of isolation during lockdown saw rapid deterioration of the cognitive and communicative skills of care home residents living with dementia. The use of CSCs to regulate indoor visits – with outdoor visits allowed for those without CSCs – will prevent the harmful isolation of many care home residents, striking a fairer balance between the need to protect public health and the right to a private and family life.
However, not all deployments of CSCs in care home visits would pass the litmus test. A crucial feature of the scenario considered above concerned the availability of an alternative for those without a CSC. Consider a variation under which a care home required CSCs for all visits. In the face of such a policy, those who are unwilling or unable to test or get vaccinated would bear the burden of the use of CSCs, being deprived of their Article 8 rights. Such a policy would not pass the proportionality litmus test.
We do not argue that every use of CSCs will amount to an unlawful interference with ECHR rights. Rather, as the example of care homes shows, there is a need for careful human rights analysis of all possible uses of CSCs. The relevant human rights considerations will vary considerably according to the specific context in which CSCs are used. For example, requiring all care home workers to present a CSC in order to enter the workplace might protect public health, but it will interfere with the workers’ rights to refuse medical treatment and to privacy of their medical data. Rights-balancing acts such as these are particularly challenging in the context of crises such as the COVID-19 pandemic. But respect for relevant human rights frameworks must be at the core of the UK’s COVID-19 recovery, and we call for engagement between government, lawyers, and human rights scholars throughout this process.