Covid Passes and Non-Discrimination

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Today the British Parliament will decide on whether England will follow other parts of the UK – and many other states – in requiring the use of Covid passes (passports, certificates) to access certain public venues and services. Public debates surrounding the introduction of such passes frequently turn on their real or supposed discriminatory effects. It is black letter human rights law, of course, that even if such effects do exist they may still be justified, if the relevant measure pursues a legitimate aim (such as the protection of public health) and is proportionate to that aim. What’s particularly fascinating about the introduction of Covid passes is that they may serve public health aims in two different ways. First, by reducing transmission of the virus in risky situations or contexts. Second, by inducing individuals to get vaccinated through the imposition of inconvenience.

The proportionality of Covid pass regimes as judged against the first of these aims – often the one emphasized by politicians arguing in favour of such measures – is made more difficult to assess simply because there is little reliable evidence on whether Covid passes are in fact effective in reducing transmission. And whatever the effectiveness baseline actually is, it certainly gets lower if vaccines are less effective in reducing transmission (as opposed to serious illness) and if there is a highly transmissible variant of the virus, such as Omicron. Put differently, it may well be that Covid passes actually have very little impact in reducing transmission in venues such as night clubs or concerts, or when using public transport. Consider, for example, the currently very favourable Covid situation in the United Arab Emirates, where vaccine mandates have led to 90%+ vaccination rates and where new daily Covid cases are in the double digits. Covid passes – mandatory in Abu Dhabi but not in Dubai – likely don’t make much of a difference on the rate of transmission in these two parts of the same country.

But then there is the second, more paternalistic way in which Covid passes work – by imposing costs on the vaccine-hesitant so as to induce them to get vaccinated (either because they can’t access the facilities they want, or because they would need to pay for testing to do so). In effect, Covid passes then work as ‘soft’ vaccine mandates – but more of a shove than a nudge. In many countries a pass scheme would be a hard political sell on this basis alone, but paradoxically it is much easier to prove that passes incentivize vaccination than that they reduce the rate of transmission. Consider just the huge increase in vaccine uptake in France after the sanitary passes were made mandatory there.

In my view it is extremely unlikely that human rights bodies would find Covid pass regimes to constitute unjustified direct discrimination against the unvaccinated on the basis of either of these modes of the passes’ operation. (But I’m sure the issue will get litigated nonetheless). The question of indirect discrimination, however, is more complicated, and will vary greatly from society to society. Readers may be interested in a short essay I’ve put up on SSRN dealing with these issues; the abstract is below, and any comments are welcome.

Countries all over the world are increasingly introducing Covid-19 passes – certificates of an individual’s vaccination status, testing status, or recovery from the virus – and mandating their use in certain contexts, such as access to bars, restaurants, public transport and other facilities. In this editorial I will not engage in a detailed descriptive examination of how COVID passes have been implemented in individual states. Rather, my intention is to do a big picture analysis of the compatibility of such policies with the prohibition of discrimination and the principle of equality. Non-discrimination is a foundational rule of international human rights law and most domestic constitutional systems for the protection of fundamental rights. It is not an absolute rule, in the sense that some distinctions in treatment can be reasonably and objectively justified. And COVID passes may well be justified in most states that have used them so far, depending on how precisely they were designed and implemented. That said, the key argument I wish to make here is that lawyers and policymakers need to be especially mindful of the potential indirect discriminatory effects of COVID passes. In order to mitigate such effects, all state rules and policies need to be thoroughly scrutinized, be evidence-based and subject to oversight and judicial review. The state must gather data about the real-world effects of COVID passes, positive and negative, and subject them to ongoing, dynamic evaluation, including meaningful equality impact assessments. Finally, the positive and negative effects of COVID passes will always be variable and context-specific – they may be a great success in one country but not in another; the circumstances of each society need to be taken into account.

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Henri Beauniere says

December 14, 2021

These feel like matters of high public policy that the courts will be extremely reluctant to second guess, particularly if subject to meaningful parliamentary scrutiny in a democratic society. My guess is that they will largely duck the substantive evidential issues and satisfy themselves with a few procedural safeguards.