Covid Passport: The future of the economy, a breach of our legal rights or Fools Gold?

7th April 2021 Commercial Litigation

Ian Brown the frontman of legendary Manchester band the Stone Roses was the first singer to pull out of a major festival when he refused to accept ‘proof of vaccination’ as a condition of entry to the Neighbourhood Weekender in Warrington.

Brown tweeted:

“My Saturday night headline show at NHBD Weekender Festival will now not happen! I refuse to accept vaccination proof as condition of entry.Refunds are available! X “

Proof of vaccination or a Covid Passport?

The Covid status certification, as the Government is at pains to name it, is the use of testing or vaccination data to confirm individuals have a lower risk of transmitting Covid 19.

It is unclear if such a ‘passport’ would be in the form of a mobile phone application or a paper document. On the basis that the NHS Test and Trace system has been available using an application for mobile phones it feels as though a similar app would be the format used.

The Government has stated that the certification would “be available both to vaccinated people and to unvaccinated people who have been tested.

There has already been a formal consultation about the so-called Covid Passport. The Government’s ‘Covid status certification’ consultation closed on 29 March 2021. There will be many who await the results with anticipation not least the airline industry.

There are international examples of a similar system. For example a system does already exist in Israel. The ‘green pass’ is issued to individuals who have received two doses of the vaccine or are recovering from infection.

The Prime Minister Boris Johnson has confirmed that Covid Passports will not be required to be shown when shops and pub gardens re-open on 12 April and not in step 3 when indoor hospitality opens.

The Prime Minister has indicated that the passport may be required for international travel.

At the Downing Street press conference on 5 April 2021, the PM provided what he described as a three-way reassurance that the passport will cover the following:

1.     Immunity - recording whether an individual had the virus in last 6 months

2.     Vaccination status

3.     Testing - NHS free lateral flow test

The PM has accepted that there are complicated ethical and practical issues.

What are the legal issues?

The starting point is a practical point that an individual may not want to admit that he / she has been infected with Covid or had a vaccine and therefore if the passport was to show that person x was infected in November 2020 then, for example, stewards at football matches or concerts would be aware of individual x’s infection/health status. The individual may even know the steward and wish to maintain privacy. Under the European Convention on Human Rights, individuals have the right to a respect for their private life. This encompasses health information. 

Of course, an individual’s privacy rights may be restricted for the protection of health and in the interests of public safety but such restrictions must be proportionate. Would the imposition of a passport actually protect health and is it proportionate?

Equally, the State would, obviously, be allowed to regulate whether people can watch their favourite football team or hear their favourite band playing live.  Consider then a person’s rights to freedom of expression, right to freedom of association, prohibition from discrimination.  All rights that are permissibly qualified in an emergency.  But at what cost?

There are also data protection issues.

Personal data is defined by the UK GDPR as information relating to an identified or identifiable natural person. If person x is carrying the ‘passport’ in whatever format then it follows that the information is personal data.

In data law, medical information is afforded a higher degree of protection and is regarded as special category personal data. As discussed above, there may be individuals who would like to attend a Stone Roses concert, or indeed the Stone Roses themselves (!), who may not wish to share their special category health data with third parties.

Legal issues aside, there is widespread agreement that we should get this virus under control and return to normality (whatever that means in a post-Covid world).  Clearly, the practical measures required to do so involve difficult considerations regarding our rights and freedoms.

It remains to be seen how the Government will introduce its Covid passport later in the year.

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Dominic Walker is a Solicitor located in Manchesterin our Media Law department

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