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7 April 2021

Are vaccine passports a threat to human rights?

Concerns about privacy and discrimination are valid, but what if the choice is between Covid certificates or more lockdowns?

By Adam Wagner

Do “Covid status passports” infringe human rights? I must admit I have flipped and flopped on this one. I will set out the competing arguments and see where we get to.

Before doing so, we need to talk about definitions. In its new roadmap review, the government talks not about vaccine passports but “Covid-status certification”. The “Covid-status” bit is fair enough. This isn’t just about vaccination, it’s certifying how likely a person is to have Covid-19 and whether they have a “reduced risk of transmission”. It would be unfair to only focus on vaccination because you can also demonstrate a reduced risk by having a recent test or antibodies.

The “certification” part is more of a euphemism. The government is not only proposing a handy way to show you have a reduced risk of transmission. Certification will be used as a passport to certain social activities – though expressly not to “essential public services”, public transport and “essential shops”. It is taken as a given that the system will include international travel, even though the World Health Organisation is currently against this. The even more controversial use is for entry to theatres, nightclubs, mass events and “hospitality”. Ministers have danced around the question but it sounds like restaurants and pubs are being considered.

The strongest case for Covid passports is that they are a potential way to break the cycle of lockdowns. Lockdowns have had a truly severe impact on our liberties – from rights to family life, to protest, to manifest religious beliefs, to justice – not to mention the lasting damage to the economy. If you believe that lockdowns are never justified then you will, I imagine, not accept an argument that we have to choose between lockdowns or policies which can mitigate lockdowns. Fair enough, but this government, and practically every other government worldwide, disagrees with you and is likely to continue to do so. So the reality is that any practical way of avoiding or limiting lockdowns must be seriously considered, even if it brings its own civil liberties issues.

The thing about lockdowns is they are disproportionate. A mallet used to crack a nut. The logic of lockdowns is that Covid-19 and its variants are highly infectious, deadly viruses which easily spread through (mostly indoors) social activities. Since it can spread when someone isn’t showing signs of infection, everyone is treated as potentially infectious and must be forced to limit social activity. That logic may have made sense a year ago, when testing was unreliable, vaccines were unavailable and few had antibodies. But now many people pose a lower risk of infection and potentially of transmission. In a society which is still at significant risk from the virus, particularly from variants, it would be wrong to impose lockdowns if there are relatively safe ways of maintaining indoor social gatherings for tens of millions of people. In that sense, Covid passports may enable, rather than limit, social life.

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[See also: There’s an app for that: What Britain can learn from Israel’s vaccine passports]

This brings us to the arguments against. I think there are two key ones. First, we will create a “two tier” society. This point loses some salience if, as seems to be the plan, Covid passports come into force once all adults have been offered vaccines. And a recent negative test or antibodies would be an alternative. But that still leaves people who for some physical or mental health reason cannot be vaccinated. The government accepts there is potential for discrimination and any policy would need to be carefully calibrated – potentially through exemptions as there are for face coverings.

A second argument, made forcefully by the campaign group Liberty, is privacy. Covid passports would be digital identity cards by the back door, giving public authorities such as the police access to biometric and healthcare data. This “thin end of the wedge” point is an important one, particularly given that public authorities have not always been responsible guardians of our data. And it is also reasonable to highlight the risk that such measures will outlast the threat of the virus itself, as has been the case with other emergency powers.

Where does this leave us? In a tricky moral position, where both options may involve relinquishing freedoms to some extent.

I worry that those arguing against Covid passports from a human rights perspective sometimes present too narrow a view of human rights. A year ago I wrote in the New Statesman  that the Covid-19 emergency was one which was anticipated by the writers of foundational human rights treaties. They had lived through the Spanish Flu, which killed tens of millions. They built in a right to life, to health and other social rights, which would sometimes need balancing against other rights such as to privacy – so long as any interference was proportionate. Maybe human rights campaigners seem so united in their opposition to Covid passports because our own Human Rights Act does not incorporate the socio-economic rights which are a keystone of other human rights instruments. We have perhaps found it difficult to grapple with the balances needed to fight a deadly pandemic, and fall back on arguments from older fights such as the “war on terror”.

There are good arguments against Covid passports. My concern is that we are not necessarily making them with a full appreciation of the horrors of further lockdowns, or the fact that Covid, a virus which has killed over 100,000 in the UK alone, is not going to disappear by 21 June as if it were politely following the government’s roadmap.

Covid passports must not be uncritically accepted, and parliament must stand up to any attempt to side-line it yet again with the passing of any laws. This must not be an excuse to avoid fixing other important interventions such as the test and trace system. But, from a human rights perspective, there are respectable arguments for and against. As always, the answer lies in balance and proportionality.

Adam Wagner is a barrister at Doughty Street Chambers and a visiting professor at Goldsmiths University. You can watch or listen to his recent podcast on this subject here.