Written evidence from the Bingham Centre for the Rule of Law (CVC 881)
Public Administration and Constitutional Affairs Committee
Covid 19 Vaccine Certification inquiry
About the Bingham Centre
Summary
a) What are the intended domains of use for vaccine certificates (e.g. international travel; non-essential domestic services; essential domestic services; employment)?
b) Has the Government provided Parliament with sufficient scientific, economic and other evidence to enable proper scrutiny of the effectiveness of vaccine certification in each of these domains?
c) Considering the available evidence, has the Government made out its case for the need to introduce vaccine certificates in each domain?
d) How will individuals’ rights and freedoms under the European Convention on Human Rights (“ECHR”) be protected, and is the introduction of vaccine certificates a necessary and proportionate interference with those rights and freedoms?
e) What are the potential discriminatory impacts of the certification scheme and how will these be addressed?
f) How will vaccine certificates work in practice?
g) How will data protection and privacy concerns be addressed?
h) How far does proposed legislation protect against mission creep?
The need for a comprehensive legislative framework
Questions for Parliament to consider in the scrutiny of proposals for vaccine certificates
a) What is the intended domain of use? Is the Government intending to introduce vaccine certificates in relation to education; employment (including non-public facing roles); health and social care settings; essential domestic services (e.g. travel); non-essential services (e.g. social events); and/or international travel? The Government’s consultation on the COVID-Status Certification Review makes little attempt to separate these uses, but very different considerations will apply as to the desirability, legality and practicality of vaccine certificates depending on the domain of use. Lilian Edwards has noted that, in relation to international travel, there is already a practice of “passports linked to biometrics and digital databases”.[26] In addition, the Government has already introduced an international travel regime that involves travellers to England providing a negative Covid test, completing a passenger locator form, quarantining, and taking multiple Covid tests after arriving in the UK.[27] In contrast, using vaccine certificates to exclude individuals from essential domestic services would be novel, and could “severely infringe fundamental rights, exacerbate inequality and create justifiable social unrest and confusion.”[28]
b) Has the Government provided Parliament with sufficient scientific, economic and other evidence to enable proper scrutiny of the effectiveness of vaccine certification in each of these domains? A report published by the House of Commons Science and Technology Committee earlier this year found that, when responding to the pandemic, the Government has not been sufficiently transparent in publishing the advice and evidence upon which its decisions have been based, and explaining how and why policy positions have been reached.[29] In order to scrutinise the Government’s proposals, Parliament will need to be provided with the evidence and advice underpinning the Government’s position, including the relevant scientific evidence, the cost of administering the scheme, and any technology that may be used to create digital certificates.
c) Considering the available evidence, has the Government made out its case for the need to introduce vaccine certificates in each domain? In other words, what are the problems that the Government wishes to solve, and are vaccine certificates a useful part of that solution? We note that there is currently no clear scientific evidence showing the effect of vaccination on the transmission of SARS-CoV-2. A recent editorial in The Lancet states that preliminary reports suggest the Moderna and Pfizer-BioNTech vaccines could reduce SARS-CoV-2 transmission, but “until these data have been peer-reviewed and their validity confirmed, uncertainty will remain around the epidemiological utility of relying on vaccine certificates”.[30] In addition, any benefits of introducing vaccine certificates domestically are likely to greatly diminish should population-level herd immunity be achieved.[31] What is the Government’s predicted time frame for achieving herd immunity via vaccination, what is the likely timeframe for the introduction of vaccine certificates and, in light of the answers to these questions, is there any role for a domestic vaccine certification scheme?
d) How will individuals’ rights and freedoms under the ECHR be protected, and is the introduction of vaccine certificates a necessary and proportionate interference with those rights and freedoms? Parliament must consider how far the Government’s proposals will interfere with individuals’ rights and freedoms under the ECHR, in particular the right to a private life (Article 8), freedom of assembly (Article 11), the right to practice one’s religion (Article 9), and the enjoyment of the rights and freedoms in the ECHR without discrimination (Article 14). Restrictions can only be placed on Articles 8, 9 and 11 in order to meet a limited number of legitimate aims, including where the restriction is in the interests of public safety, or is for the purpose of protecting health or the rights and freedoms of others. Parliament must be satisfied that the proposed vaccine certification scheme serves a legitimate aim, and that any restrictions on the rights and freedoms protected by the ECHR are necessary and proportionate. A restriction will only be proportionate if the interference goes no further than is necessary to address the legitimate aim in question. When assessing the proportionality of vaccine certification, Parliament should consider alternative solutions to the problems the Government seeks to address, although we note that vaccine certification may help avoid the severe restrictions on rights and freedoms caused by lockdowns.[32]
e) What are the potential discriminatory impacts of the scheme and how will these be addressed? As discussed above, vaccine hesitancy appears to be greater among certain groups, and there is unequal access to technology, digital literacy, and forms of identity documents. In addition, many individuals are unable to be vaccinated due to medical conditions, such as allergies,[33] and as of 13 April 2021, no vaccines had been approved for use in those under-18.[34] Parliament should ensure that any discriminatory impacts of a proposed vaccine certification scheme have been identified and properly addressed. The Government must conduct an Equality Impact Assessment, and ensure that this Assessment is made available to Parliament when it scrutinises the Government’s proposals.
f) How will vaccine certificates work in practice? The Government has been vague on the practicalities surrounding vaccine certificates. It is our current understanding that any introduction of vaccine certificates is likely to involve both digital and non-digital options, and that the NHS app is perhaps the most likely platform for digital certification. We also understand that the Government is planning to make any vaccine certification scheme available both “to vaccinated people and to unvaccinated people who have been tested”.[35] Yet many questions remain. How will proving test status work in practice, when tests are limited, expensive and time-sensitive? Are lateral flow tests a sufficiently reliable indication of Covid-status? How will the scheme treat people who have only had the first dose of the vaccine? What type of personal data will be collected and stored, and for how long? How will the Government protect against fraud? What technology would be used to create a digital route to demonstrating Covid-status, and would this be developed with private sector partners? The Institute for Government notes that creating a digital certificate via an app would be a “major technological challenge”, and has called upon the Government to be clear about “how difficult developing a Covid passport app will be, whether it has the requisite capability and what timeframe is realistic”.[36]
g) How will data protection and privacy concerns be addressed? As we noted above, the Government’s proposal raises a number of privacy concerns, especially in relation to digital certificates. Parliament must ensure that the processing of personal data via any vaccine certification scheme will be compliant with privacy and data protection law under Article 8 ECHR and the GDPR, including ensuring that the minimal amount of data necessary is stored, and that there are adequate protections around data sharing and deletion.[37] The Government must conduct a Data Protection Impact Assessment, and ensure that this Assessment is made available to Parliament when it scrutinises the Government’s proposals.
h) How far does proposed legislation protect against mission creep? The Rule of Law requires powers introduced in response to emergency situations to be limited in duration, circumstance and scope.[38] The Ada Lovelace Institute has raised concerns that digital vaccine certificates may normalise “health status surveillance by creating long-term infrastructure in response to a time-bounded crisis”, and that the digital identity scheme used for vaccine certificates may be used for “different or expanded purposes” in the future.[39] Parliament should strive to prevent this happening by ensuring that any legislation introducing vaccine certificates is narrow in scope and strictly time limited, with a sunset clause.
April 2021
[1] Research Fellow in Rule of Law Monitoring of Coronavirus Legislation, Bingham Centre for the Rule of Law, British Institute of International and Comparative Law. Email: k.lines@binghamcentre.biicl.org
[2] Research Fellow in Public Health Emergencies and the Rule of Law, Bingham Centre for the Rule of Law, British Institute of International and Comparative Law; Co-Investigator on the Arts and Humanities Research Council project ‘The Role of Good Governance and the Rule of Law in Building Public Trust in Data-Driven Responses to Public Health Emergencies’ (grant AH/V015214/1). Email: r.scott@biicl.org
[3] UK Parliament, Michael Gove, COVID-19 Update, Statement UIN HCWS947 (29 April 2021) <https://questions-statements.parliament.uk/written-statements/detail/2021-04-29/hcws947>
[4] Hansard Society, ‘Coronavirus Statutory Instruments Dashboard’
<https://www.hansardsociety.org.uk/publications/data/coronavirus-statutory-instruments-dashboard>
[5] Meg Russell, Ruth Fox, Ronan Cormacain, Joe Tomlinson, ‘The marginalisation of the House of Commons under Covid has been shocking; a year on, parliament’s role must urgently be restored’ (21 April 2021) <https://constitution-unit.com/2021/04/21/covid-and-parliament-one-year-on/>
[6] For example, it was only in June 2020 that regulations governing lockdown in England were first laid before Parliament in advance of their coming into force, when the original lockdown regulations were being amended for the fourth time – see the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 4) Regulations 2020 (SI 2020/588).
[7] There are a very small number of parent Acts that allow for amendments to be made, for example the Civil Contingencies Act 2004 s.27(3) and Census Act 1920 s.1(2).
[8] This point was made by the Constitution Committee in’ Delegated Legislation and Parliament: A response to the Strathclyde Review (2015-2016, HL 116), at paragraph 25.
[9] Ruth Fox and Joel Blackwell, The Devil is in the Detail: Parliament and Delegated Legislation (Hansard Society, 2014), p. 28.
[10] Constitution Committee, Draft Scotland Act 1998 (Modification of Schedules 4 and 5 and Transfer of Functions to the Scottish Ministers etc.) Order 2015 (2014-2015, HL 119), para 15.
[11] Constitution Committee, Policing and Crime Bill Report (2008-09, HL 128), paras 11-15. For more detail see Jack Simson Caird, Robert Hazell and Dawn Oliver, ‘The Constitutional Standards of the House of Lords Select Committee on the Constitution Third Edition’ The Constitution Unit (UCL, November 2017)
[12] Nuffield Council on Bioethics, ‘COVID-19 antibody testing and ‘immunity certification’ (18 June 2020) <https://www.nuffieldbioethics.org/news/new-briefing-covid-19-antibody-testing-and-immunity-certification>
[13] ONS, ‘Coronavirus and vaccination rates in people aged 70 years and over by socio-demographic characteristic, England: 8 December 2020 to 11 March 2021’ (29 March 2021) <https://www.ons.gov.uk/peoplepopulationandcommunity/healthandsocialcare/healthinequalities/bulletins/coronavirusandvaccinationratesinpeopleaged70yearsandoverbysociodemographiccharacteristicengland/8december2020to11march2021#ethnic-group>
[14] ibid.
[15] CDC, ‘Information about COVID-19 Vaccines for People with Allergies’ (25 March 2021) <https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/specific-groups/allergies.html>; WHO, ‘The Oxford/AstrZeneca COVID-19 vaccine: what you need to know’ (11 February 2021, updated 17 March 2021) <https://www.who.int/news-room/feature-stories/detail/the-oxford-astrazeneca-covid-19-vaccine-what-you-need-to-know>
[16] Joint Committee on Vaccination and Immunisation, ‘JCVI final statement on phase 2 of the COVID-19 vaccination programme: 13 April 2021’ (13 April 2021) <https://www.gov.uk/government/publications/priority-groups-for-phase-2-of-the-coronavirus-covid-19-vaccination-programme-advice-from-the-jcvi/jcvi-final-statement-on-phase-2-of-the-covid-19-vaccination-programme-13-april-2021>
[17] Stephen Reicher and John Drury, ‘How to lose friends and alienate people? On the problems of vaccine passports’ (BMJ Opinion, 1 April 2021) <https://blogs.bmj.com/bmj/2021/04/01/how-to-lose-friends-and-alienate-people-on-the-problems-of-vaccine-passports/>
[18] Tom Sasse and Rosa Hodgkin, ‘Covid passports: Key questions for the government’ (Institute for Government, 13 April 2021) <https://www.instituteforgovernment.org.uk/publications/covid-passports>
[19] Ada Lovelace Institute, ‘What place should COVID-19 vaccine passports have in society?’ (17 February 2021), page 6 <https://www.adalovelaceinstitute.org/summary/covid-19-vaccine-passports/>
[20] Kate Ng, ‘Plans for ‘Covid passports’ in pubs and restaurants to be struck off menu, report says’ The Independent (29 April 2021) <https://www.independent.co.uk/news/uk/home-news/coronavirus-passports-pubs-restaurants-events-b1839263.html>
[21] Sasse and Hodgkin, p. 9
[22] ‘Covid passports: Certification is 'one option', vaccines minister says’ BBC News (6 April 2021) <https://www.bbc.co.uk/news/uk-56645208>
[23] Guy Faulconbridge, ‘Swipe my phone: UK to use health service app as vaccine passport’ Reuters (28 April 2021) <https://www.reuters.com/world/uk/uk-plans-use-health-service-app-vaccine-proof-travel-2021-04-28/>; Simon Calder, ‘England’s “vaccine passport” for holidays abroad will use the NHS app’ The Independent (28 April 2021) <https://www.independent.co.uk/travel/news-and-advice/holiday-vaccine-passport-nhs-app-b1838700.html>; Zoe Kleinman, ‘Confusion over use of NHS App as Covid passport’ BBC News (29 April 2021) <https://www.bbc.com/news/technology-56928620>
[24] Sasse and Hodgkin, p. 9
[25] ‘Coronavirus: Swann “uncomfortable” with vaccine certificates for hospitality’ BBC News (4 March 2021) <https://www.bbc.co.uk/news/uk-northern-ireland-56277669>
[26] Lilian Edwards, ‘Part 1: The Great Vaccination Passports Debate: “ID Cards on Steroids” or the Rational Way Forward?’ BIICL Blog (1 April 2021) <https://www.biicl.org/blog/22/part-1-the-great-vaccination-passports-debate-id-cards-on-steroids-or-the-rational-way-forward>; See also Irene Pietropaoli, ‘Part 2: Getting Digital Health Passports Right? Legal, Ethical and Equality Considerations’ BIICL Blog (1 April 2021) <https://www.biicl.org/blog/23/part-2-getting-digital-health-passports-right-legal-ethical-and-equality-considerations>
[27] The Health Protection (Coronavirus, International Travel) (England) Regulations 2020
[28] Edwards, ‘Part 1: The Great Vaccination Passports Debate: “ID Cards on Steroids” or the Rational Way Forward?’
[29] House of Commons Science and Technology Committee, ‘The UK response to covid-19: use of scientific advice’ (2019-2021, HC 136).
[30] ‘Vaccine certificates: does the end justify the means?’ The Lancet Microbe Vol 2, Issue 4 (1 April, 2021) <https://www.thelancet.com/journals/lanmic/article/PIIS2666-5247(21)00067-7/fulltext#>
[31] Ada Lovelace Institute, ‘What place should COVID-19 vaccine passports have in society?’, page 6
[32] Adam Wagner recently discussed this matter in ‘Are vaccine passports a threat to human rights?’ New Statesman (7 April 2021) <https://www.newstatesman.com/politics/uk/2021/04/are-vaccine-passports-threat-human-rights>
[33] CDC, ‘Information about COVID-19 Vaccines for People with Allergies’ (25 March 2021) <https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations/specific-groups/allergies.html>; WHO, ‘The Oxford/AstrZeneca COVID-19 vaccine: what you need to know’ (11 February 2021, updated 17 March 2021) <https://www.who.int/news-room/feature-stories/detail/the-oxford-astrazeneca-covid-19-vaccine-what-you-need-to-know>
[34] Joint Committee on Vaccination and Immunisation, ‘JCVI final statement on phase 2 of the COVID-19 vaccination programme: 13 April 2021’ (13 April 2021) < https://www.gov.uk/government/publications/priority-groups-for-phase-2-of-the-coronavirus-covid-19-vaccination-programme-advice-from-the-jcvi/jcvi-final-statement-on-phase-2-of-the-covid-19-vaccination-programme-13-april-2021>
[35] UK Government, ‘COVID-Status Certification Review - Call for evidence’ (29 March 2021) <https://www.gov.uk/government/consultations/covid-status-certification-review-call-for-evidence/covid-status-certification-review-call-for-evidence>
[36] Sasse and Hodgkin, ‘Covid passports’
[37] See Nyasha Weinberg’s discussion in relation to contract tracing apps: ‘Parliament must legislate on the government’s plans for contact tracing apps’ UK Constitutional Law Blog (4 May 2020) < https://ukconstitutionallaw.org/2020/05/04/nyasha-weinberg-parliament-must-legislate-on-the-governments-plans-for-contact-tracing-apps/>
[38] Venice Commission, The Rule of Law Checklist (Council of Europe, 2016), Benchmark A6 <https://www.venice.coe.int/images/SITE%20IMAGES/Publications/Rule_of_Law_Check_List.pdf>
[39] Ada Lovelace Institute, ‘What place should COVID-19 vaccine passports have in society?’, page 7.