6 May 2021

You can download this explainer as a PDF here.

Throughout the end of 2020 and all of 2021, vaccine passports have been widely discussed as a possible way to help lift restrictions imposed to tackle the Covid-19 pandemic. 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 “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, recent Covid test results, and antibody status. 

Are vaccine passports going to become a reality in the UK?

It looks almost certain that some form of ‘vaccine passport’ is to become a feature of international travel this year, and recently in the UK, conversations have begun over their use domestically. This means passports for use within the UK, for example, to access theatres, pubs, restaurants, or certain workplaces – such as care homes.

The UK government are currently consulting on the issue.  A call for evidence was open from 15 March 2021 to 29 March 2021 to gather information to help assess the impact that passports could have on relaxing Covid-19 safety measures, such as social distancing. Pilots of a vaccine passport scheme are set to begin in May 2021.

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.

  • The right to respect for private, family life, home, and correspondence (Article 8)

Here we cover issues including autonomy, wellbeing, and protecting private information.

  • The right to have freedom of thought, conscience, and religion (Article 9)

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

  • The right not to be discriminated against (Article 14)

Here we cover issues such as the potential for employees to be discriminated against for not having the vaccine due to personal or medical reasons.

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

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 and it includes a 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 127,000 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 in order to 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 and therefore might not be eligible for a vaccine passport. 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 in lieu of vaccine passports. This would serve as a proportionate alternative to vaccination passports within their duty to protect your right to life.

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, 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 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?

  • 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, and you have autonomy to make decisions about your own health if you have the mental capacity to do so.
  • 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, alternative measures are 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.
  • The right to privacy as set out in the Act also stipulates that personal information should be kept securely and not shared without permission, except in certain circumstances – if the three stage test of lawful, legitimate and proportionate is met. Public bodies will need to consider this right if they ask people to disclose their vaccination status or any reasons why they have not had the vaccine.  The data that might be stored on a vaccine passport would be considered sensitive as it concerns private medical information. Special safeguards would need to be adopted to ensure that the right to privacy is upheld.

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. Increased testing could offer a proportionate action to allow people to continue to enjoy their rights under Article 8 if they do not have a vaccine passport.

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. The ability to manifest, act on, or exercise that belief or thought is non-absolute and can be restricted. Any restrictions to this right must meet all the 3 tests of lawful, legitimate, and proportionate. Legitimate reasons include public safety/order, health, and to protect the rights of others. The lawful and proportionality elements also need to be met to restrict the exercise of this right.

How might this right be relevant to vaccine passports:

  • Some people might not believe that the vaccine is the right thing for them and want to say no, and therefore may not be able to get a vaccine passport. There are currently no legal requirements to have a vaccine passport (the law may change on this). Where systems are put in place, the 3 stage test needs to be met, and proportionality will be especially important in ensuing alternative measures for people whose protected beliefs mean they have not had the vaccine, and consequently do not have a passport and any resulting issues with accessing spaces
  • It is your right under Article 9 of the Act to be able to have access to religious worship and services. It is difficult to see how public authorities could restrict your rights to religious worship in a lawful, legitimate, and proportionate way for not having a vaccine passport. A recent judicial review overturned the Scottish Government’s ban on public worship, as it was deemed disproportionate and infringed on rights protected by Article 9 of the Human Rights Act. In order to enable everyone access to religious worship and services, an improved test and trace system could act as a proportionate alternative option for those who do not have vaccine passports.
  • Some people may not want the vaccine (and any subsequent vaccine passport) for religious reasons. For example, some religious groups have raised concerns about where ingredients in the vaccine have come from. Saying no to the vaccine on religious grounds must also be respected; it is difficult to see how the 3 tests to restrict this right, and force a vaccine, would be met.

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.

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 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 medical, health or protected belief 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.
  • Ensuring people are provided with the support they need to be able to access the vaccine and 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. It could also mean that alternatives to a smartphone app are looked at – such as a paper passport, as not everyone has or wants a smartphone.
  • Whilst people may not be directly discriminated against based on their protected characteristics, there are groups of people where the vaccine take-up is lower – including migrants, those from minority ethnic backgrounds and poorer socio-economic groups. If vaccine passports are to help ease lockdown measures, this could essentially mean that these groups of people are denied access to essential services and employment. Again, reasonable adjustments should be made by public authorities to ensure that no one is discriminated against for not being able to access a vaccine passport.
  • 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?

It is unclear how vaccine passports may be established at this stage. The vaccination programme in the UK is continuing and runs parallel with the UK Government’s roadmap to remove the lockdown and social contact restrictions (it is important to remember that there are also plans in place from the devolved governments in Northern Ireland, Scotland and Wales). The UK Government has said that the number of people who have had their vaccine is one of the things they are thinking about when they decide to remove some of the restrictions.

In the last few weeks there has been increasing discussion about the possible introduction of vaccine passports or vaccine certificates or changes to the law requiring staff in some sectors, including public bodies, to have the vaccine. These are complex issues which may impact human rights, the extent of the impact is difficult to know until there are more details. For more information on the Covid-19 vaccine and human rights please check out our other guides below.

Where can I find more information?

BIHR Resources:

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

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

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

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