Following is the requested feedback template on the UK Government COVID Vaccination Certification proposed law.
It was created by Big Brother Watch which is a well respected organisation with a team of professional staff that focus on the rights in the fields of state surveillance, policing technologies, big data, artificial intelligence and free expression online.
Dear Cabinet Office,
In summary, my view is that the Government should not support domestic COVID-status certification and, owing to profound civil liberties, rights and equality concerns, should legislate to prohibit private companies from using COVID-status certification as a requirement for customers and staff alike. I believe this is vital for the Government to uphold its duty to protect human rights and prevent discrimination.
I also wish to state at the outset of my response that I am concerned about the validity of this review. Four days after this call for evidence was opened, the Culture Secretary was reported to be planning the use of COVID-status certificates for large stadium events this summer. I am deeply concerned by the prospect that the Prime Minister, the Chancellor of the Duchy of Lancaster, the Minister for COVID-19 Vaccine Deployment among others may have misled parliament and the public by not only issuing assurances that there was no intention to use vaccine passports at all, but by later planning their use just days after opening a review to consider whether their use would be lawful, ethical or effective.
Which of the following best describes the capacity in which you are responding to this call for evidence?
I am a:
In your view, what are the key considerations, including opportunities and risks, associated with a potential COVID-status certification scheme? We would welcome specific reference to:
a) clinical / medical considerations
The professed purpose of a COVID-status certificate is to create environments where the risk of transmitting coronavirus is negligible by requiring evidence of a vaccination or test result as a condition of entry.
Firstly, I believe the Government’s priority ought to be protecting those most vulnerable to the virus – which has now happened. The Government reported that 93% of over 75s have received a vaccination and vaccine uptake for younger people at comparatively lower risk continues to be remarkably high. The vaccine deployment success among those most vulnerable to coronavirus means hospitalisations and excess deaths are certain to fall, and onerous controls on society are not justifiable.
Secondly, vaccination status is an invalid basis on which to declare an individual as at low risk of transmission. There is currently no conclusive, peer-reviewed evidence on the effect of the COVID vaccines on transmission of the virus, and very little on vaccines and COVID transmission relating to the older age groups.
The insufficiency of evidence on the impact of COVID vaccines on transmission of the virus is one of the reasons that the WHO advises against vaccine requirements as a condition of international travel. However, if the vaccines do significantly reduce transmission, infection rates and thus deaths will reduce even faster, rendering onerous controls such as COVID-status certificates even less necessary and even more disproportionate.
Whilst evidence on the impact of COVID vaccines on transmissibility of the virus is insufficient, mass testing would be the assumed condition of entry via COVID-status certificates. The proposed method would be to use rapid Lateral Flow Tests (LFTs). Firstly, coerced medical testing of healthy people without any symptoms of coronavirus, especially when the vulnerable population has been vaccinated and the overall impact of coronavirus is vastly reduced, is incredibly difficult to medically justify. Secondly, LFTs are only a useful indicator of infections when the true infection rate in the general population is high. As set out in the Royal Statistical Society COVID-19 Taskforce on 5th March 2021: “while the usual concern with LFTs is false negatives, when infection-prevalence is low there is also a risk that the majority of ‘positive’ tests could be false positives.” This means individuals (and by proxy their friends, family, colleagues, and anyone else they have come into contact with) could be wrongly denied their rights, falsely denied paid-for products, services or events, and needless panic could be caused which would be harmful both to the reopening of the economy and to individuals’ rights.
As an alternative during this period of exiting lockdown, I believe the emphasis should be on strong medical support for those who are infected, rather than treating the whole nation as potentially infectious. This means encouraging and supporting people to isolate and take a reliable test either following the onset of COVID symptoms or exposure to an individual who has tested positive via a reliable test and improving the NHS Test and Trace system.
b) legal, (ethical and equalities) considerations
The effect of COVID-status certification would be to socially and economically exclude people without a COVID vaccine or recent test result and deny them basic freedoms. In doing so, some of the most marginalised in society would suffer either direct or indirect discrimination.
Article 14 of the European Convention on Human Rights and the Equality Act 2010 protect individuals from unlawful discrimination. Under equality law, it is unlawful to discriminate against people with ‘protected characteristics’, many of which are engaged by COVID-status certificate proposals, including age, disability, pregnancy and religion or belief.
If the Government allows society to be segregated according to vaccination status:
Young people would be discriminated against, since there will be lower and slower vaccine uptake as young people are both generally at a low risk of serious illness from the virus and last in line to be offered a vaccination. Children are not eligible for vaccines as trials are ongoing. Further, if vaccines are required annually/periodically, young people could be discriminated against on a corresponding cycle as they will always be last in line to receive vaccines.
Disabled people could be discriminated against as some medical conditions prevent individuals from being able to receive a vaccination.
Pregnant women would be discriminated against, as covid vaccines are not routinely advised for them and whilst clinical trials are ongoing, women may be cautious about vaccines whilst pregnant, breastfeeding or trying to conceive.
Some people with religious or other beliefs may be discriminated against, if those beliefs deter them from receiving a vaccine.
Discrimination, inequality and unfairness would be caused not only by medical eligibility for vaccination but by accessibility of vaccinations. Research indicates that people from ethnic minority groups, people with lower levels of education and lower incomes are the most ‘hesitant’ or unlikely to receive COVID vaccines (Fancourt, Paul & Steptoe 2020). Further, many of the estimated 1 million undocumented migrants in the UK are fearful of accessing health services due to punitive data sharing as part of hostile environment policies and may be more apprehensive still if COVID-status certificates become an everyday requirement. We cannot simply erase histories and experiences of discrimination and hostility that have created distrust. In fact, vaccine segregation would only deepen discrimination and alienate people even more. This would be disastrous for trust in public health authorities when trust has never been needed more.
Finally, there are billions of citizens of the world who simply will not have access to COVID vaccines for several years to come. As we emerge from the pandemic, disproportionate vaccine requirements should not unfairly impede the rights and freedom of movement of individuals from lower-income countries.
The alternative to vaccination evidence, which is a recent test result, also carries legal and ethical problems. Firstly, under even the most extreme UK law, required medical testing is only possible if an individual is known to be potentially infectious (Coronavirus Act 2020). Further, pre-existing public health law only allows a medical examination to be ordered by a magistrate if a person is believed to be infected or contaminated (Health and Social Care Act 2008). However, COVID-status certificates would effectively make medical testing mandatory for all, treating all citizens – and particularly those with protected characteristics who are unable to receive a vaccination – as potentially infectious. The onerous burden of healthy people having to undergo frequent medical testing in order to enjoy basic rights could also lead to a loss of earnings and, if/when tests are no longer free, could incur financial penalties.
c) operational / delivery considerations
The cost to the public purse of mass testing and the development of a mass COVID-status certification infrastructure is likely to be astronomical, despite the lack of benefits and severe risks.
d) considerations relating to the operation of venues that could use a potential COVID-status certification scheme
COVID-status certification would be burdensome for venues which would not only be liable to legal challenges from customers and staff, but have to undertake to verify a genuine COVID-status and deny entry to individuals without one. In most public environments such as supermarkets, shopping centres, entertainment venues and restaurants etc. there are no access control mechanisms meaning venues would have to create checkpoints for customers and staff to enter and install security staff to enforce requirements. This would not only lead to increased costs for venues but the likelihood of conflict and altercations and increasingly oppressive environment for citizens.
e) considerations relating to the responsibilities or actions of employers under a potential COVID-status certification scheme.
The legal issues outlined above apply to employers, who cannot unlawfully discriminate against current or potential employees. Even if an employer believes they are able to lawfully offer a general service (e.g. a cruise) to exclusively vaccinated individuals, it would be wrong and potentially unlawful to demand that current or prospective staff undergo medical treatment (e.g. vaccination) or medical testing (e.g. LFT) as a condition of employment. These issues merit serious consideration.
f) ethical considerations
g) equalities considerations
h) privacy considerations
COVID-status certificates present an unprecedented privacy intrusion. Never before have individuals needed to demonstrate their health status or indeed any medical information to enjoy day to day freedoms. The requirement to use an app or, for individuals without a smart phone, a QR code relating to sensitive medical data engages Article 8 privacy rights, GDPR and the Data Protection Act 2018. This privacy intrusion would be widespread and, in my view, challengeable.
The UK has a proud history of opposition to ID cards. We are not a papers-carrying country. COVID-status certificates would turn us into a two-tier, checkpoint society where we each have to show an app or certificate simply in order to enjoy public life. This would be a serious break from our long-guarded democratic traditions, respect of privacy, and would most disadvantage marginalised people. The combination of apps with sensitive health data and the subversion of everyday businesses and events into checkpoints could constitute the biggest expansion of surveillance ever seen in the UK.
Further, many health data apps are accessed via biometric facial recognition. The requirement to use facial recognition engages GDPR/DPA rights and individuals should have a right to refuse. Further, facial recognition algorithms suffer from inaccuracy and have particular issues accurately recognising women and people of colour (NIST). Such apps would be likely to compound discrimination issues and may wrongly obstruct individuals from enjoying their rights and freedoms.
It has been suggested that exemptions could be created to allow certain unvaccinated people with protected characteristics into spaces governed by COVID-status certificates and/or where only vaccinated people are permitted. As outlined above, I believe there would be serious legal and ethical issues with such controls – but there would be serious privacy issues too. Others may deduce that the exempt or unvaccinated individual has health problems, is pregnant, or has a certain belief system. This is not only an invasion of privacy but could lead to disadvantageous treatment, particularly in an employment context.
Bodily autonomy is an important aspect of the right to privacy. Compulsory vaccination, as an involuntary medical treatment, amounts to an interference with the right to a private life (Solomakhin v Ukraine).
I believe individuals have the right to make their own choices about their own bodies. UK laws generally respect medical consent and mandatory vaccines are prohibited under the Public Health Act. However, COVID-status certificates would clearly cause people to feel coerced into receiving vaccines to avoid the onerous alternative of constant medical tests or, worse, reduced freedoms. They would have a similar effect to mandatory vaccine policies, which are typically imposed by exclusion or penalties for those who decline vaccines. The penalty of reduced liberties for otherwise healthy individuals who decline a certain medical treatment or test would mark a grave change in our public health system and rights record as a whole.
Are there any other comments you would like to make to inform the COVID-status certification review?