Vaccines: passports to normality?

Covid Vaccine

After a year of mostly terrible news, the rapid roll-out of the coronavirus vaccination programme in the UK has at last brought some positive headlines.

Assuming that challenges with supply or new virus mutations do not derail the programme, it is likely that the entire UK adult population will have been offered a vaccination later in 2021. This brings with it the tantalising prospect of reopening the economy, and our lives returning to something approaching normality.

Despite the success of the vaccine roll-out, we know that covid-19 is not going to disappear immediately. None of the current vaccines offer 100% protection, and not everyone wants or is able to be vaccinated. So how can we reopen the economy and restore international travel without risking another wave of infections? One possible ‘solution’ is the introduction of so-called vaccine passports. A vaccine passport is a document, probably in electronic form, that provides official confirmation that the individual has had a recent and up-to-date vaccination against covid-19.

For individuals, particularly those who have received the vaccine already, there are clear and obvious benefits to a system of vaccine passports. But they do raise some very difficult legal and ethical challenges. Will businesses be guilty of discrimination if they refuse to serve customers without a vaccine passport? Can employers insist on their employees having a vaccine, and sack them if they don’t? What if an individual refuses the vaccine on religious grounds? Or because of an underlying health condition? And what about the risks of inaccurate data or data breaches?

At this stage, all this is theoretical. Not everyone has had the opportunity to be vaccinated and the current restrictions mean most businesses that may wish to rely on vaccine passports are closed. But governments across the world, including in the UK, are known to be looking at such measures. Separately, a number of private companies are working on technological solutions to allow individuals to ‘prove’ that they have been vaccinated. Once available, this technology is likely to prove very popular among people desperate to return to their former lives, particularly if businesses decide to restrict services only to those who can demonstrate that they have been vaccinated. There have already been media reports of travel companies insisting that customers are vaccinated prior to travelling, while Charlie Mullins of Pimlico Plumbers has written about his aim to make the vaccinate mandatory for new starters.

Businesses will need to think very carefully before requiring their customers to provide ‘proof’ that they have received a covid vaccine, particularly in the absence of any officially sanctioned vaccine passport, certification or other document. They will need to be sure that the data they are collecting is accurate, reliable and safe from manipulation. The types of manual vaccination appointment cards given by the NHS don’t provide sufficient reassurance, as they are not intended to be a definitive record and are clearly open to being copied or misused. Realistically, the importance of a vaccine passport, or lack of one, is likely to require some form of government involvement.

Assuming these practical challenges can be overcome, a business wishing to utilise vaccine passports will still need to comply with data protection law. This means having a valid lawful basis for collecting and retaining data, and ensuring that any data is used proportionately and only where necessary for a clearly defined purpose. Information about health merits special protection under data protection law, and so its use is tightly controlled. Businesses will need to justify their use of vaccine passports and clearly explain to individuals how information about them will be used.

If services are to be denied or employment restricted as a result of checking vaccine passports, then businesses will need to take into account equality and human rights legislation. Depending on the specific context, a blanket policy requiring individuals to show a vaccine passport may be disproportionate and therefore discriminatory. At the very least, businesses should put in place systems to allow individuals to explain why they may not be able to provide proof of vaccination and to challenge any inaccuracies in the data. There is a risk that some individuals will be effectively ‘blacklisted’ because of their failure to provide proof of vaccination, shutting them out of areas of public life as society begins to reopen.

Despite all of these issues, our collective desperation for a return to normality is likely to mean that we’ll see some sort of vaccine passport scheme in the near future. The challenge for government is to ensure that the scheme is accurate, available and secure. It will then be up to businesses to decide in what circumstances it is fair and lawful to insist on a vaccine passport.

Jon Belcher

Jon Belcher is a specialist data protection and information governance lawyer at Excello Law.

Jon Belcher is a specialist data protection and information governance lawyer at Excello Law.