In the age of Covid-19, it seems that we cannot escape the conversation around vaccinations. Many feel that vaccines have offered a light at the end of the Covid tunnel, optimistically looking forward to a future where we have achieved herd immunity in the UK, and life can get back to ‘normal’. Though vaccines provide cost effective protection against infectious diseases, they are not mandatory in the UK, and rely on people voluntarily taking them to achieve herd immunity. Overall, vaccine take up rates in the UK are high, with more than 35 million people to date having received at least one dose of a coronavirus vaccine.

However, there is thought to be more than 5 million ‘anti-vax’ followers in the UK who are more reluctant, in some cases against having vaccinations altogether.

What do these numbers mean for human rights?

In the UK, we have the right to make our own choices regarding vaccination. The right to choose what is best for ourselves is protected in law, through the European Convention on Human Rights, brought down into domestic law through our UK Human Rights Act. The concept of autonomy, i.e. self-governance, is woven through both pieces of legislation, and covered explicitly in Article 8, under the right to private life.

Whilst the government may implement policies which encourage and promote vaccines, it remains our choice – not one made by the state. We have the right to autonomy, meaning self governance, which is protected by the Human Rights Act. However, it is important to explain here that our right to autonomy, is not absolute. In other words, in certain, limited circumstances, the state could intervene with our right to make our own decisions but to do this the state would have to meet a very strict 3 stage test. Firstly, any restriction of our autonomy must be lawful (there must be a law which allows the state to take this action), it must be for a legitimate aim (these are explained within each right but include the protection of public safety and health), and it must be proportionate (the least restrictive option available). With this in mind, any limit on our right to autonomy under the Human Rights Act would have to meet all three of these tests.

Across Europe; France, Italy, Poland, Latvia, Bulgaria, and the Czech Republic have bought policies of mandatory vaccinations into their domestic laws. In the Czech Republic, if the policy of voluntary vaccination is not sufficient in achieving and maintaining herd immunity, national authorities can reasonably introduce a compulsory vaccination policy. This has narrowed the opportunity for parents to ‘opt out’ of having their child vaccinated unless they meet a very specific criterion.

Background on the ECtHR case:

Several families from the Czech Republic collectively bought their case (Vavřička and others v. The Czech Republic) to ECtHR after their children had been refused admission to state schools on the basis that they had not been fully vaccinated against nine communicable diseases. Other measures had also been taken against some parents, including fines for failure to comply with the rules.

The case revolved around two articles set out in the European Convention on Human Rights; article 8 – the right to respect for a private and family life, and article 9 – freedom of thought, conscience, and religion. The ECtHR considered if the Czech Republic’s position infringed on the rights contained within either article. The ECtHR ruled that article 9 was inadmissible in this case, as the court deemed that the right to freedom of thought did not extend to taking a “critical stance towards vaccination”. The ECtHR did rule that the Czech Republic policy falls within the scope of exceptions set out within article 8. The court invoked ‘public safety’ and ‘the protections of health and morals’ exceptions in article 8 in its ruling on 8 April 2021, reasoning that compulsory vaccination can be considered “necessary in a democratic society”. The ruling was decided by ECtHR’s Grand Chamber, preventing applicants from any further appeals.

To contextualise the impact that this ruling may have here at home, it is important to consider that ECtHR is a prominent jewel in our human rights crown. ECtHR, based in Strasbourg, is the final interpreter of the European Convention of Human Rights, its jurisdiction covering all 47 member states of the Council of Europe – including the UK. The outcome of this case is therefore important for all European countries – including the UK.

Whilst the events leading into this case happened pre-Covid (remember those days!), will this case act as a reference point for the on-going debate on the ethics of compulsory Covid-19 vaccinations? Maybe. Such an approach raises the question; do compulsory vaccinations violate human rights? Many critics of such policies believe that an enforced approach in order to protect the Right to Life, may come at a cost to other rights protected under the Human Rights Act. The Human Rights Act protects our autonomy, and this ruling, from my perspective, may not meet the required legal tests for the restriction of this right.

“Vaccination Duty” and Article 2 – The Right to Life

 The court noted that:

 “Vaccination protects both those who receive it and also those who cannot be vaccinated for medical reasons and are therefore reliant on herd immunity for protection against serious contagious diseases”.

This implies that when a state operates a vaccination programme, such as the roll out of the Covid-19 vaccine across the whole of the UK, they weigh up the best interests of those that want to be vaccinated, those that do not, and the people that become protected simply through a high vaccination rate. This concept was referred to throughout the case as “vaccination duty”. Viewed as a protective measure, vaccination duty could legally be applied compatibly with article 2 of the Human Rights Act - the Right to Life. The right to life is absolute – meaning that it can never be taken away but protecting the Right to Life should not be at all costs, in other words, it does not trump all other rights. Instead, the Right to Life puts a duty on the state to take reasonable steps to protect life where they are aware of a real and immediate risk.  Certainly, ensuring that society has achieved herd immunity by enforcing “vaccination duty” might protect our right to life, but our other rights still have to be respected and protected.

At BIHR we champion all of the rights contained within the Act. We help people who are exercising their own rights, and the public authorities making decisions that affect people’s rights, to understand that the Human Rights Act needs to be applied to all that they do and that they are legally required to do so. Whilst the concept of “vaccination duty” might be compatible with the Right to Life, it seems that article 2 has taken priority over articles 8 and 9. Whilst articles 8 and 9 are non-absolute rights and may be restricted in specific circumstances (in this case in the intrests of public health), I question whether the restriction is proportionate.

How does the ECtHR ruling impact Article 8 – The Right to Respect for Private and Family Life?

The ECtHR ruled that in the case of Vavřička and others v. The Czech Republic there had been no violation of article 8 of the European Convention on Human Rights (ECHR) – right to respect for a private and family life. The Court held that the policies and reprimands that the applicants complained about, were proportionate and legitimate actions taken by the Czech State through their vaccination duty. Article 8 HRA gives effect to article 8 of the ECHR and is one of the most dynamically interpreted and far-reaching rights in the act – protecting many things that we take for granted in our day-to-day life.

Compulsory medical treatment at first glance seems to work against protections set out in article 8. In some cases, compulsory treatment could be lawful, such as detention under the Mental Health Act if the aim is to protect the person being detained from harm, and it is the least restrictive option. The enforcement of “vaccination duty” was deemed by ECtHR to be within the scope of exception. This was partly due to there being so few alternative options to vaccinations, therefore have no measures that would have been deemed as both adequate protection against the risk of disease and a proportionate alternative. In addition, if the impact of compulsory treatment amounted to inhuman or degrading treatment it would not be lawful.

Here in the UK, article 8 of the Human Rights Act is non-absolute, meaning that public authorities can interfere with your right to respect for a private and family life if they can demonstrate that their action is lawful, legitimate, and proportionate. ECtHR invoked ‘public safety’ and ‘the protection of health and morals’ to legitimise the Czech Republic’s stance. Whilst the tests of lawful and legitimate could be met by public authorities under such exceptions, it is difficult to see how enforcing mandatory vaccinations could ever be deemed to be proportionate. Proportionate means that the ‘least restrictive’ way of achieving the aim was applied. In ECtHR case the aim was to protect children from communicable disease.

It is difficult, in my opinion to agree with the ECtHR that mandatory vaccines is indeed the least restrictive option. An alternative to mandatory vaccines may come in the form of increased testing, but again if this was to be made mandatory we would need to assess whether this was proportionate. Providing alternative protection against communicable diseases, such as increased provision of personal protective equipment (PPE) might be another proportionate alternative. Regardless of any proportionate measures that are taken by public authorities, they are required by law to respect, protect, and fulfil your right to respect for a private and family life.

Mandatory vaccinations a long way off, but human rights must be at the centre of the conversation

Considering our rights are enshrined in UK law, it is surprising that data gathered by an IPSOS poll shows that there is an outright majority of people in the UK that believe that the Covid-19 vaccine should be mandatory. If there is a public shift of opinion, and vaccine take up rates fall, the landmark ECtHR ruling could provide the UK governments with case law to help challenge vaccine hesitancy. As the Human Rights Act is a lens that all other legislation should be viewed through, our autonomy must be respected, protected, and always fulfilled by public authorities.

At present, the UK does not have any compulsory or mandatory vaccination policies. It is up to the individual (or their parent(s) or guardian(s) if it is a child being vaccinated) to choose. Someone’s best interests are considered where they do not have the mental capacity to decide, such as in the case of CR.

Whilst the UK government have made no plans (or at least publicly) to enforce such policies, it is important to consider that ECtHR ruling may provide some guidance on how any such policies develop in the future here at home, and that the Government should ensure full consideration of all our protections and hard fought for rights under the Human Rights Act.

Read BIHR's resources about vaccines