When the UK Government published its plan to relax COVID restrictions in England, it included a review into the use of COVID status certificates (CSCs) led by Cabinet Office minister, Michael Gove MP. This review is expected to be published in the coming weeks. The Welsh Government is yet to publish its thoughts on the use of CSCs.
Throughout this article we use the term COVID status certificates (CSCs), this includes vaccine passports and other certificates based on testing.
What are COVID Status Certificates?
A CSC can be based on a number of different things, including vaccination, a negative lateral flow or PCR test, or natural immunity from testing positive up to 180 days ago following the self-isolation period.
We know that vaccines don’t provide 100% protection. While a CSC based on vaccination tells us that a person has received one, it doesn’t tell us that they’re not infectious or able to transmit the virus at that time. It’s not yet known whether a person is eligible for a CSC after one dose of the vaccine or if both doses are needed.
While no test is 100% accurate, the PCR is considered the “best standard”. Lateral flow tests are quicker as they return results in around 30 minutes. However, they are less sensitive than the PCR tests which need to go a lab for analysis. It is possible that a person who is infectious receives a negative test result and is able to transmit the virus, with this being more likely in the case of lateral flow tests.
What are they needed for?
Currently, CSCs are only required for international travel to some countries. If and how they’ll be used in domestic settings is unclear.
The UK Government said that “there are some settings (such as essential public services, public transport and essential shops) where COVID-status certification should never be required”. It noted that CSCs could play a role in settings such as theatres, nightclubs, and mass events to help reduce the risk of large numbers of people gathering in close proximity.
Will they apply in the same way across the UK?
At the moment CSCs based on vaccination are available via a NHS app to travellers registered with an English GP surgery if they are required by the country there are visiting. The Welsh Government says it’s “working with the UK Government to see if [it] can use the app”.
Speaking to the House of Commons Public Administration and Constitutional Affairs Committee, Michael Gove MP said the Welsh Government “sees a lot of merit in working closely with [the UK Government’s approach]”.
It is possible for the Welsh Government to introduce its own version of a CSC scheme in Wales. The Institute for Government says that to ensure a domestic scheme works across the UK and there isn’t confusion for businesses and the public, the four governments of the UK will need to co-ordinate a response.
Why might COVID Status Certificates be introduced in domestic settings?
The UK Government says it’s exploring for England whether CSCs “might be used to reopen our economy, reduce restrictions on social contact and improve safety”. The Welsh Government has not commented on the use of CSCs in domestic settings.
How might they be introduced?
CSCs could exist without any form of regulation. While there’s currently no law providing that a business may refuse entry to a person without a CSC, there’s no law which prohibits them from doing so as long as they’re compliant with equalities legislation.
However, Dr Ronan Cormacain of the Bingham Centre for the Rule of Law argued that the absence of legislation to underpin CSCs would lead to an unacceptable legal uncertainty. Legislation could be used to provide a framework for CSCs that sets out the rights of citizens and businesses, outlines the exceptions, takes account of the equality and discrimination considerations and provide remedies when things go wrong.
It’s unclear whether the UK Government will bring forward legislation and whether such legislation would apply to Wales.
What impact could COVID Status Certificates have on businesses?
The Institute for Government suggests that CSCs might increase economic activity due to a reduced risk of virus transmission. It states that services and businesses that are less able to operate under social distancing measures would benefit. However, a poll conducted by Savanta in April 2021 found that Welsh business owners were among those least likely to agree that CSCs would effectively allow business sectors to reopen compared with those in other areas of the UK.
The British Chambers of Commerce show that 78% of UK firms have no plans to use CSCs, with 5% of firms already implementing their own requirements for proof of vaccination and a further 6% planning to do so in the future.
The Confederation of British Industry has outlined seven principles it would like to see for any CSC scheme.
Could they become compulsory for employees?
The Royal Society highlights potential impacts of CSCs on employment law. It raises the possibility that employees could bring unfair dismissal or discrimination cases around workplace CSCs, while also noting employers’ duty of care to protect employees and customers.
The UK Government said that “it is not [its] intention to say that contract law should change or the conditions of employment should change as a result of certification”.
The Trades Union Congress raises questions around the impact of CSCs on employees including how testing data will be collected, and how employees’ personal health information will remain confidential.
What about equality and privacy issues?
There are concerns that CSCs could create a ’two-tier society’, which could exacerbate existing inequalities and discriminate against some groups.
The Equality and Human Rights Commission emphasises that “[i]t is important to strike the right balance between individual liberty and the rights of others”. The British Institute of Human Rights notes that CSCs may engage a range of rights in the Human Rights Act including the right to life, right to respect for private life, freedom of thought, conscience and religion, and the right not be discriminated against.
Digital CSCs also risk discriminating against people who are more likely to be digitally excluded, such as the people on low incomes and older people. The Council of Europe (which enforces the European Convention on Human Rights) recommends that CSCs must be accompanied by strict measures to protect personal data, and by increased vigilance against the risks of counterfeiting.
What are other countries doing?
Seven EU countries have launched the EU’s Digital Covid Certificate (EDCC), formerly known as the Digital Green Certificate. The EDCC can be issued to EU citizens who have been vaccinated, have tested negative or have recovered from COVID. The free, digital or paper-based QR code will be valid in all EU and Schengen Zone countries in preparation for European summer travel. Ireland is considering extending the EDCC to Irish passport holders living in Northern Ireland.
Some countries have rejected the concept of CSCs, including the USA (although individual states can launch their own), whilst others have been forced to roll plans back in the face of opposition, such as in Australia.
The World Health Organisation has also opposed vaccine passports as a condition of exit/entry on the grounds that it is not yet certain that vaccines prevent transmission and because of their potential discriminatory effects.