You can download this explainer as a pdf here.

16 December 2021  

Throughout the end of 2020 and all of 2021, vaccine passports were widely discussed as a possible way to help lift restrictions which were imposed to tackle the Covid-19 pandemic, such as the closure of hospitality and leisure businesses. They have the potential to impact every person in the UK. Some people see vaccine passports as essential to ending Covid-19 restrictions. Others are worried about what this means for their privacy and their liberty. There is no doubt that the issue of vaccine passports raises key human rights issues. At BIHR our expertise revolves around the Human Rights Act and this is therefore the focus of this explainer.

What is a vaccine passport?

There is no set definition of a vaccine passport. Broadly speaking, a vaccine passport is a document, card, or application (app) on a smartphone proving that someone has protection from Covid-19. Vaccine passports have also been described by senior British politicians and academics as Covid passes, “immunity certificates”, “Covid status certificates”, and “immunity passports”, amongst other names.

As well as proving that someone has received a course of Covid-19 vaccinations, there may be other information attached to the vaccine passport such as the brand of vaccine administered, dates of administration, booster vaccines, recent Covid test results, and antibody status.

Do we have vaccine passports in the UK?

Following a UK government consultation which assessed how vaccine passports could aid the relaxation of Covid-19 safety measures, pilot schemes of vaccine passports launched in May 2021. In the summer of 2021, the NHS COVID Pass (England) was launched. The Covid Pass is an app available in England on certain devices – such as smartphones, similar apps are available in Scotland (NHS Scotland Covid Status app), Wales (NHS Covid Pass), and Northern Ireland (Covid Cert NI). The apps were launched to allow people to share their vaccination status. From July 2021, showing a valid Covid Pass may have become a condition of entry to some venues and events, such as nightclubs and concerts. You may have a different type of Covid Pass, such as a letter or printed certificate, which are also available from the NHS.

As well as using a Covid Pass in the UK, when you travel abroad you may have to show it or similar documents to prove you have been vaccinated or are exempt from having vaccinations or have recently tested negative for Covid-19.

In the rest of this Explainer we use the general term “vaccine passport” this could include the current NHS Pass or other similar certification processes for proving Covid-19 vaccination status.

Which human rights are involved?

The Human Rights Act sets out 16 rights that every person in the UK has, and the legal duties on public bodies to uphold these rights.

 

The Human Rights Act puts a legal duty on public bodies across the UK to respect, protect and fulfil human rights in everything they do, every day. Examples of public bodies include the NHS, local authorities, courts, and public education authorities. This duty on public bodies is about upholding the human rights of people the bodies serve, and the staff working within them.

The Human Rights Act also serves as ‘Foundation Law’ across the UK, meaning that secondary legislation must be applied in a way which is compatible with human rights, as far as possible. government must consider the Human Rights Act in all policy-making. Further to this, any implementation of policy or legislation must be Human Rights Act compliant. This means when other laws are being made, such as rules around vaccine passports, they must be compatible with human rights.

It is important to note that some of our legally protected rights are absolute, which means they can never be limited or restricted by the government. Others are non-absolute, meaning they can be limited or restricted in certain very specific circumstances to protect us or others from harm. You can read more about our Human Rights Act and how it works here.

The introduction of vaccine passports may affect how people enjoy their rights as set out in the Human Rights Act. This explainer highlights:

Here we cover issues including the duty to protect life and failures to protect life.

Here we cover issues including autonomy, wellbeing and “vaccine passports”.

Here we cover issues including the right to hold and act on strongly held beliefs.

Here we cover issues including groups of people being treated differently.

If you’d like to know more about the rights issues related to the vaccine, you can read our short guide here.

NOTE: This guide contains information, it does not constitute legal advice, and should not be used as such. The information contained here is about human rights law in the UK as of 16 December 2021; the law may have changed since then.

The Right to Life (Article 2 HRA)

Public authorities have a duty to take reasonable steps to protect your life under the Human Rights Act. The right to life means staff working in government and public bodies (we sometimes refer to them as public officials) cannot deliberately take your life. This includes a legal duty on governments and public bodies to take proactive, reasonable steps to protect life. It is important to remember that taking steps to protect life, does not mean protecting life at all costs, our other rights in the Human Rights Act are important and protected by law too. You can read more about the right to life here.

How might the right to life be relevant to decisions on vaccines passports?

  • Vaccine passports could be seen as a reasonable and proactive step to protect people from a real and immediate risk.Since March 2020, over 165,000 people in the UK have lost their lives to Covid-19.
  • Vaccine passports could incentivise vaccination. The government and many public bodies, including the NHS and local authorities, are encouraging all adults to get the vaccine to help curb infection rates and help to protect the right to life of others.
  • Public officials have a legal duty to take proportionate (or least restrictive) steps to protect your life and the lives of others. Some people may want to opt out of having a vaccine passport or refuse the vaccine. In this scenario, a public official still has a legal duty to protect your right to life and must seek to implement other measures to protect this right.
  • If an individual does not have/want a vaccine passport, public officials may choose to offer increased Covid-19 testing to ensure that public safety is not compromised. This would serve as a proportionate alternative to vaccination within their duty to protect your right to life.

The 3 tests for restricting a non-absolute human right:

 

It is important to remember all 3 of these tests must be met for a public body to restrict a non-absolute right, such as those highlighted in the below explainer:

 

1.    Is it lawful? There must be a law that allows the restriction being proposed by the government or staff member in a public body or service. There is no general law in the UK that requires people to have the Covid vaccine (vaccinations are not mandatory for members of the public). The situation is different for some workers in health and care settings where the employer may have a legal duty to exclude staff who are unvaccinated, you can read more on this in the BIHR Covid-19 vaccine and human rights: A short guide for staff working in public bodies. The UK government has now changed the Health and Social Care Act so that some staff who work with vulnerable people in a face-to-face role need to be vaccinated to protect the people they work with and support. This could be about the right to life in the Human Rights Act (Article 2, above), or the health and safety legislation. The following 2 tests still need to be met.

 

2.    Is there is legitimate reason for the restriction of the human right(s)? These reasons are written down in the human rights themselves. They are usually for national security, public health, safety or order or to protect the person or wider community. Action, which restricts a person’s non-absolute human right, to protect an individual or a group of people from a public health threat, such as a pandemic, falls within this test. However, the next test also needs to be followed.

 

3.    Is the restriction proportionate? This is very important, and in practice this is where lots of proposed restrictions to human rights are challenged and different actions or decisions are agreed. Proportionality means identifying the various options available and choosing the one which is least restrictive to achieve the legitimate aim. This means the public body should understand all the available alternatives to the restriction they are proposing and making a clear, reasoned decision about which option they have chosen and why. This should include consideration of the person’s situation. It will be important to ensure that a restriction is not discriminatory; a restriction which may appear to be the least restrictive must also be non-discriminatory.

 

 

Right to Respect for Private and Family Life, Home and Correspondence (Article 8 HRA)

Covered by Article 8 of the Human Rights Act, this right protects our autonomy (to make decisions about ourselves), our participation in the community, our family life, our privacy and more. This right is far reaching and has four parts, this explainer focuses on the right to a private and family life. 

You can read about the Right to Respect for Private and Family Life, Home and Correspondence in more detail here.

Article 8 is a non-absolute human right and can be restricted in specific circumstances. If a public body plans to restrict the right to private and family life, they must do so in a lawful, legitimate, and proportionate way, this is explained below.

The right to private and family life includes:

  • Physical and mental wellbeing
  • Autonomy, meaning being able to make decisions about your life, including “unwise” decisions. This includes decisions about health and care including medical treatment and vaccinations.
  • Being able to develop and maintain relationships with people.
  • Being a part of a community if you choose to.
  • Having your private information kept private. This includes medical information.

How might this right be relevant to vaccine passports?

  • Physical and mental wellbeing: The Covid-19 vaccination programme has been successful in helping decrease rates of infection and protect vulnerable people from harm, as vaccinated individuals are less likely to become infected than unvaccinated individuals. Studies also show that there is a far lower risk of becoming seriously ill or dying from covid if you are vaccinated. As vaccines passports may encourage and incentivise vaccine take up, they could help to protect wellbeing.
  • Autonomy: You may be asked to be vaccinated and hold a vaccine passport to protect your right to life and to protect others. The right to a private and family life must be considered if this is the case because the vaccine is optional (the law does not require or mandate people to have the vaccine*), and you have autonomy to make decisions about your own health if you have the mental capacity to do so. *The situation for employment in some health and care roles is different, we explained the changes to the law on this above.
  • If vaccine passports are required to enter certain places, then not having one may limit our ability to participate in economic, social, leisure, and cultural activities – all of which create our private life, which is protected by the Act. Any restriction of the right to private and family life by public officials, or those carrying out public duties, must be carried out in a lawful, legitimate, and proportionate way. This may mean that if someone does not have a vaccine passport, public bodies should look at what alternative measures can be put into place for them, such as increased testing, to ensure that people can enjoy their rights in the same way as people that have vaccine passports can.
  • All public authorities, such as the NHS and the Police have legal duties under the Human Rights Act to respect and protect your private information. If a vaccine passport is requested by a public authority, for example if you were entering back into the UK after travelling abroad and a UK border force officer requested to see your Covid Pass, they have legal duties under the Human Rights Act to protect any personal information held within the vaccine passport under Article 8: The Right to Respect for Private and Family Life.

In all of the above situations, or any others that impact our right to respect for private and family life, public bodies may be able to restrict the right if they follow the 3-stage test of lawful, legitimate, and proportionate, as we explained above. Vaccine passports are intended to protect public health, which may be deemed to be a legitimate reason for restricting someone’s rights in Article 8. It is likely that in restricting the rights outlined in Article 8, public authorities will be acting legitimately, though dependant on what action was taken it may not be lawful or proportionate/least restrictive.

Right to Have Freedom of Thought, Conscience, and Religion (Article 9 HRA)

This right recognises that people can believe and think what they like, this is absolute and can never be restricted. Article 9 specifies a clear difference between belief and manifestation. The ability to manifest, act on, or exercise a belief or thought is non-absolute. This means that the way in which we act on our beliefs can be restricted if the 3 tests of lawful, legitimate, and proportionate are met.

How might this right be relevant to vaccine passports:

  • Whilst people have the right to believe that the vaccine is not the right thing for them, in certain circumstances the manifestation of that belief may lawfully be restricted if the 3-stage test is met. An example of this might be staff in public bodies/public functions, such as health and care staff that do not want to be vaccinated and/or share their vaccination status. Recently, changes to the Health and Social Care Act 2008 set out that all staff working in CQC regulated care settings and NHS settings (from April 2022) that are in contact with vulnerable people must be vaccinated to do their roles. To read more about the Covid-19 vaccine, human rights, and staff working in public bodies, take a look at our guide here.
  • The Human Rights Act ensures that your human rights are protected. However, these protections are not ‘at all costs’, nobody may use their rights to infringe the rights of other people, as set out in Article 17 of the Act. For example, it could be argued that staff in health and care services who, on the basis of their freedom of beliefs, decide not have a Covid-19 vaccination, may pose a real and immediate risk to life of people relying on health and care services, many of whom are medically vulnerable. Such a risk to life could violate patient/service users Article 2 (Right to Life) and Article 3 (Free from Inhuman or Degrading Treatment) rights.

The Right to be Free from Discrimination (Article 14 HRA)

Article 14 protects our right not to be discriminated against in relation to any of the other human rights in the Act. This right means that we should all be able to enjoy our human rights in the same way, without discrimination. This right protects against discrimination on a range of grounds including the nine protected characteristics described in the Equality Act (England, Scotland, and Wales) and Section 75 of the Northern Ireland Act 1998, and other grounds for discrimination, e.g., socio-economic status or combined grounds, e.g., being a young, black, disabled woman.

It is important to consider that vaccine passports may not be available to groups of people in society who are unable to be vaccinated. Regardless of if you hold a vaccine passport against Covid-19 or not, you should not be discriminated against, however differential treatment of people may not be deemed to be discriminatory if it can be objectively and reasonably justified.

Ways in which this right may be relevant to vaccine passports:

  • The prioritisation of people, e.g., those clinically vulnerable to Covid-19, to receive the vaccine, and access to an NHS Covid Pass (or any subsequent vaccine passport), is differential treatment that can be objectively and reasonably justified. Denying the prioritisation of groups that can demonstrate clear vulnerability, may not be objectively and reasonably justified.
  • Denying the vaccine and/or vaccine passports to particular groups of people, without objective and reasonable justification could amount to discrimination. Additionally, if for clinical reasons, a person hasn’t had the vaccine, any requirements to have a vaccine passports (and access to places, services, etc.) may lead to discrimination against certain groups. Public bodies would need to decide if this discrimination could be objectively and reasonably justified.
  • Ensuring people are provided with the support they need to be able to access the vaccine and NHS Covid Passes (or any subsequent vaccine passports). This could include ensuring information about the vaccine is accessible so people can make an informed decision and having reasonable adjustments in place for people when the vaccine is being administered.
  • If you do not have access to a device that can use the Covid Pass app, you should be given access to a different Covid Pass such as a letter or printed certificate (see details at the bottom of this explainer). This would be deemed as a being a reasonable adjustment. You can find more information on how to obtain a Covid Pass above.
  • It is important to remember that public authorities, or those carrying out a public function are never allowed to deny your human rights outlined in the Human Rights Act based on lack of resources. This includes staff shortages, not enough money in a local authority budget etc.

What happens next?

At the time of publication (16 Dec 2021), Covid-19 has not gone away and there is still a range of guidance and rules in place across the UK to help keep us all safe (and this may be different between different nations in the UK). This is an ever-changing landscape, and often advice and guidance change quickly to reflect infection numbers and risk. The vaccination programme in the UK is continuing, and being expanded upon with the introduction of booster jabs for all people over the age of 18, and some people aged over 16. The vaccination programme runs parallel with the UK Government’s guidance and safety advice. It is important to remember that there is also guidance in place from the devolved governments in Northern Ireland, Scotland and Wales.

Where can I find more information?

BIHR Vaccine Hub

https://www.bihr.org.uk/covid-19-vaccine-and-human-rights

BIHR Explainers:

The Covid-19 Vaccine and Human Rights: A short guide for staff working in public bodies

Easy Read Guide to Coronavirus (Covid-19) Vaccine and Human Rights

The Covid-19 Vaccine and Human Rights: A Short Guide

Blog: 4 Important Cases about the Covid-19 Vaccine

Blog: What does the ECtHR ruling on compulsory vaccination mean in the UK?

Other resources:

UK Government Easy Read Guide on Covid-19 Vaccination

UK Government Vaccine Guide for Adults

NHS inform Scotland Coronavirus (Covid-19): Advice for key workers

Public Health Wales Resources of Health and Social Care Professionals

NHS guidance to support Covid-19 Vaccine uptake in frontline staff

ACAS: getting the coronavirus vaccine for work

UK Government Easy Read Vaccination Guide

Mencap Easy Read Vaccination Information

UK Government Vaccine Guide for Adults (not easy read)

BBC News explainer on covid passports 

You can find information about supporting people to make vaccine decisions below:

The Down’s Syndrome Association’s Quick Guide ‘Supporting me to make a decision’

Learning Disability England (LDE) guide to the booster jab (easy read)

Public Health Guidance/Covid Pass:

England

You can find general guidance on the current restrictions and rules in place around Covid-19 in England here. You can find out more about the NHS Covid Pass here.

Scotland

You can find general guidance on the current restrictions and rules in place around Covid-19 in Scotland here. You can find out more about the NHS Scotland Covid Status here.

Wales

You can find general guidance on the current restrictions and rules in place around Covid-19 in Wales here. You can find out more about the NHS Covid Pass here.

Northern Ireland

You can find general guidance on the current restrictions and rules in place around Covid-19 in Northern Ireland here. You can find out more about the StopCOVID NI app here.

Return to our vaccines hub for more resources by clicking on the button below.