The proof for the vaccine scheme proposed by Government for indoor pubs and restaurants is problematic legally, and raises questions over discrimination between customers, lawyers have said.
The legal complications were raised as business groups suggested it was not viable to seek vaccine certificates from pub and restaurant patrons for indoor service while leaving unvaccinated customers outdoors.
The Restaurants Association of Ireland argued the move was flawed, unworkable and discriminatory, saying it was not legal under equality Acts to refuse access to goods and services to one category of customer.
Ibec also expressed anxiety about the workability of the system. “Many businesses are concerned about the feasibility of an indoor dining system that prioritises fully vaccinated persons.”
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The Irish Council for Civil Liberties said the decision reversed Taoiseach Micheál Martin’s resistance to domestic vaccine passports, which he had ruled out on civil liberties grounds. Such a system would discriminate in access to goods, services and potentially employment, the council said.
One legal expert said the Government’s move appeared to contradict a recent direction from data protection commissioner Helen Dixon, who said there was “no clear legal basis” for employers to process vaccine data in the absence of clear public health advice that it is necessary.
“It’s not helpful to have what appears to be conflicting approaches by two different arms of the State, the data protection commissioner on the one hand and now the Cabinet decision in relation to mandatory vaccination,” said barrister Des Ryan, associate professor of law at Trinity College Dublin.
“This may well place an unrealistic burden on restaurants and hospitality. But also it potentially puts those businesses into friction with their customers in a way that renders those hostelries the custodians of data. They’re the ones making demands about disclosure of vaccination certification and so on. It’s really the very antithesis of what you expect in terms of a warm welcome in hospitality.”
Exemptions
Prof Ryan noted that the scheme could leave young restaurant workers who have yet to receive vaccinations in the “bizarre situation” of working in an environment in which they were not permitted to socialise.
He suggested exemptions may be needed for people who can’t take vaccines because of disability or for religious reasons, saying a blanket one-size-fits-all approach seemed very blunt given the direction from Ms Dixon.
“Maybe they will exempt people who have specific medical conditions or specific medical certification as to why they’re not able to undergo a vaccine. That raises other problems. Why should that person have to divulge that if they just want a pizza? That does seem to be an extremely invasive measure for what is essentially a routine part of day-to-day life.”
There was also the possibility of a court challenge on the basis of the measure being an unconstitutional restriction of a person’s right to bodily integrity and personal freedom under the Constitution.
“The onus is on the State to show that there is no other less intrusive means that I could use to achieve this aim. I think there are real questions about whether it would be able to show that,” he said.
“I can certainly see the concerns that people would have in terms of individual autonomy and privacy, Ireland not being a state where one has to produce papers at a moment’s notice for example.”
Barrister Constance Cassidy, a specialist in the law of licensing, said the proposed scheme raised clear questions of discrimination against younger people. Asked whether it could create a precedent for proof of vaccination to be required in other areas of life such as schools or colleges, she said the move was “a bit” Orwellian.
“Every tiny step to curtail our freedoms has been noted by us, perhaps resented by us as a people, but accepted by us to achieve the greater good on the basis that there will be an end to it,” she said.
“If the Government is saying that you need a vaccination card to access certain services which would be regarded heretofore as entitlements from the beginning, it is the thin end of the wedge.”
On the question of discrimination, she said: “The question is: is it an acceptable one in the light of a public health emergency? Discrimination equals hard choices. You have to balance public safety, fairness, trying to reopen, trying to get the country moving again.
“It does throw up issues of discrimination and maybe a question of the constitutionality of discriminating against various groups. But the Government has to make practical decisions in a time of crisis and in a time of a pandemic if it means that for the protection of all that they will have to make hard decisions like this. They are also trying to accommodate an industry shook to its very core.”
Legal problem
Niall Michel, a partner at solicitors Mason Hayes & Curran, said the move could help defuse a legal problem over Covid-19 restrictions.
“A lot of the legal rationale for having restrictions is that they are necessary and proportionate. But restaurateurs are pointing to the rest of Europe and saying that they seem to think that a greater reopening and indoor dining is possible,” he said.
“Insofar as you can do a like-for-like comparison with those other jurisdictions, and insofar as the science backs up what they are doing, it would suggest that we’re being overly restrictive now, and that the restrictions are moving away from their necessary and proportionate nature.
“In a way, therefore, you could see this Government response as an attempt to reinject proportionality into the mix by allowing some indoor dining rather than none, albeit by fully vaccinated people only for the time being.”
