The idea that people would be discriminated against on the basis of their Covid-19 immunity status was described as a scary possibility in April 2020 by the WHO special envoy on Covid-19, David Nabarro. “It will be a frightening schism. Those with antibodies will be able to travel and work, and the rest will be discriminated against,” he warned.
Nineteen months later, people who are vaccinated against, or recovered from, Covid-19 are able to access certain aspects of normal society in Ireland using a Covid pass. Those unable, or unwilling, to show proof of such are denied that access.
Our rights to freedom of movement, privacy, work, education and participation in cultural life, while incredibly important, are of course not absolute. They can be limited in certain circumstances to protect other rights, such as life and health, during a pandemic.
However, any rights-limiting measure, such as the Covid pass, must respect the principle of proportionality enshrined in law and must be implemented without discrimination. The measure must be shown to be necessary and the least detrimental measure available to achieve the aim pursued, in this case the protection of people from Covid-19.
To assess the proportionality of the Covid pass system, evidence must be established to demonstrate both effectiveness and assess the negative impact on rights. These tests, to ensure compliance with human rights, can be determined only by regular review of the system.
Since its introduction in July 2021 there has not been any such review or any evidence seen of the extent to which the Covid pass system has curbed Covid-19.
Vaccines are not mandatory in Ireland. To mandate them would raise serious ethical and legal questions about consent. As such, enforcing a vaccine passport disproportionately affects the fundamental rights of those unvaccinated.
Negative testing
Crucially, unlike many other EU countries, Ireland’s vaccine passport does not include an option for negative testing. This omission is particularly perplexing given our extremely high vaccination rate, and the fact that the underpinning legislation provides for the possibility that testing could be included in the system.
Although there are varying levels of vaccination across different jurisdictions, Belgium, Cyprus, Italy, Luxembourg, Galicia and Canary Islands in Spain, and France all include testing where access restrictions are imposed based on health status. When Denmark used a pass, it included testing. The Israeli system includes a 72-hour pass via testing.
The Irish Council for Civil Liberties (ICCL) wrote to the Government in August to ask if and when this would be given effect. We have not received a response.
Including a testing option provides the least restrictive or infringing measure on people’s right to decide not to be vaccinated. It also provides for people who cannot receive the vaccination. It’s one of the reasons why testing was included in the EU Digital Covid Certificate.
Minister for Health Stephen Donnelly was wrong when he told the Dáil in July when passing the Bill underpinning the cert that “the entire EU Digital Covid Certificate is based on vaccination status”. The very regulation underpinning the EU certificate states, “It is necessary to prevent direct or indirect discrimination against persons who are not vaccinated, for example, because of medical reasons, because they are not part of the target group for which the Covid-19 vaccine is currently administered or allowed, such as children, or because they have not yet had the opportunity or choose not to be vaccinated.”
Indeed, the inclusion of testing was one of the main reasons the Supreme Court in Spain and the Constitutional Court in France ruled in favour of permitting such systems for a limited period in Galicia and France.
Medical contraindications
Then there are people who cannot be vaccinated. The Irish Times has documented cases whereby people with medical contraindications cannot receive the vaccine. Senator Denis O’Donovan recently raised the case of a constituent, a pharmaceutical worker, who had an adverse reaction to her first dose and ended up in A&E. As she said, the only way she can have a normal life with her family is if she contracts Covid-19 and has proof of recovery.
ICCL has been contacted by people in similar situations including a hospital worker who can work in a high-risk environment but cannot sit in a cafe. The HSE’s own policy is to recommend Covid-19 vaccination for all healthcare workers, other than those who have a medical contraindication. These are real people.
It can only be assumed that the Government created the pass without considering the different reasons why people may not be vaccinated. The total disregard for this small cohort of people is particularly egregious. Someone who can’t get a vaccine should not be punished because of it.
A system that was to last three months and solely affect pubs and restaurants will, by February 2022, see people who cannot or who have chosen not to be vaccinated excluded from many aspects of normal life for seven months. The Government could seek to extend this system for even longer. Worse, in a case of classic function creep, we’re now seeing the certificate requested at graduation ceremonies, children’s sports and prison visiting areas.
The Minister for Health recently told the Seanad that the Government’s decision to exclude people unable to get vaccinated from aspects of society, “...is based solely on their health and their safety and minimising the risk that they are exposed to by Covid”.
He said this while generalising that people who reacted badly to their first dose must have an underlying medical condition. This, in our view, flies in the face of a recent recommendation by Nphet to the Government to consider a rapid test for people unable to get the vaccine and, therefore, to get a pass.
The vaccine passport system is unproven in its benefits and discriminatory in its effects. Failing its immediate abolishment, the Government must include testing within the system. Our successes in fighting Covid have been based on solidarity and co-operation. We must avoid social division and coercion in our response.
Olga Cronin is information rights policy officer with the Irish Council for Civil Liberties