Vaccinations and Human Rights

The UK could impose a mandatory vaccination policy, but would this be in breach of human rights?

The approval of a Covid-19 vaccine in the UK has reignited public debate about vaccination and human rights.

Scientific advice states that the population needs to be at least 60% vaccinated in order to prevent further Covid-19 outbreaks, and experts predict that an insufficient number of people will voluntarily take up the vaccine. As a result, many people are wondering whether they can be required to take the new vaccine.

The UK’s legal framework for responding to Covid-19 has been as follows:

• The Public Health (Control of Disease) Act 1984
• The Civil Contingencies Act 2004 & its Part 2 Regulations
• The Coronavirus Act 2020
• Various Coronavirus Regulations (as of 8th December 2020, the most recent Regulations can be found here)

For more information on these laws, see our Instagram posts here, here, here, and here.

There is nothing contained within any of these laws or regulations which expressly provides a legal basis for mandatory vaccination.

The Coronavirus Act 2020 contains powers to direct or remove “potentially infectious persons” to a suitable place and require them to remain at that place for a specified period for the purposes of screening and assessment, and thereafter to impose restrictions on their freedom or movement if they are infected, but it does not provide the power to vaccinate those not infected.

Additionally, in an emergency, the Civil Contingencies Act 2004 grants the government wide powers to make laws. However, there are restrictions to its use and the usual parliamentary process is sufficient to make vaccination mandatory, so there is no realistic prospect of these emergency powers being used.

The question, therefore, is not whether mandatory vaccination is currently legal, the answer to which is emphatically no.

Rather, the question is whether the UK, or any other country for that matter, ‘could’ make vaccination mandatory by law. And the short answer to this, is yes.

According to current medical ethics and practice worldwide, all competent adults must provide informed consent to any medical treatment. This is based on the principle that a patient’s right to autonomy (choosing their own destiny) must always be respected.

However, an absolute legal right for a patient’s consent has never been the norm. A lack of consent, or indeed a refusal of treatment, can be overridden in the case of children, mentally incapacitated adults and, exceptionally, competent adults that pose a serious risk to others.

In the case of a pandemic, the problem is not whether the will of one individual (or even a small number of individuals) may be trumped by the health and safety of others, rather the issue is whether the will of the public, or a large section of the public, may be overridden by their government.

Historically, vaccination has been made mandatory on several occasions, especially against deadly diseases, regardless of the views of the populace. For example, smallpox was one of the most feared diseases until it was eradicated globally through a vaccination effort led by the World Health Organization. Several countries, including the UK and the US, implemented mandatory vaccination policies in the 18th and 19th centuries.

Today, vaccination policies vary widely. For example, Brazil is known to have a strict mandatory vaccination policy against several diseases, whilst Spain has a voluntary vaccination policy. The UK does not currently have any mandatory vaccination policies.

Historically, vaccination has been made mandatory on several occasions […] regardless of the views of the populace.

From a legal standpoint, there have not been any, or at least any significant, attempts to regulate vaccination policy through international law. No treaties have been negotiated concerning vaccination, nor has any consistent or uniform state practice emerged. States have mainly left the issue of public health to be dealt with through domestic law, so international law has little to say about vaccination policy.

It follows, then, that there is little restriction on how national governments may approach the issue of vaccination. A country may, or may not, make vaccination mandatory.

Nonetheless, when making laws, countries must respect any relevant international human rights obligations they have undertaken, and must carefully balance the rights of individuals against those of the community and the interests of public health.

The UK is a party to the European Convention on Human Rights and Fundamental Freedoms (‘ECHR’), which, among other things, protects the following rights (‘Convention Rights’) which are potentially relevant to vaccination in a UK context:

• Article 2 — The right to life
• Article 3 — The right to be free from inhumane or degrading treatment
• Article 5 — The right to liberty and security of the person
• Article 8 — The right to respect for private life

These rights have all been incorporated into UK law by the Human Rights Act 1998, which means that Parliament must ensure that the laws it passes are, as far as possible, in compliance with the ECHR.

Article 2 places a positive obligation on states to safeguard life within their territories and to properly investigate deaths. Article 2 is thus at the centre of national responses to Covid-19. For more on this point, see our post on whether the UK Government had breached Article 2 of the ECHR by failing to provide NHS staff with adequate PPE.

Article 3 prohibits torture, inhumane or degrading treatment absolutely, the latter of which is potentially relevant in the context of mandatory vaccinations. However, in order for Article 3 to be engaged, a minimum threshold of severity has to be reached.

Case law from the European Court of Human Rights suggests that compulsory medical treatment may engage Article 3, but it is not necessarily unlawful. Treatment is likely to be Article 3 compliant if it is medically necessary and in conformity with accepted medical standards. If medical necessity is non-existent or slight, treatment may be contested in light of Article 3.

Article 5 protects people from arbitrary arrest and detention. This could potentially be relevant if, for example, criminal sanctions were imposed for a failure to vaccinate. Individuals might seek to challenge the legal basis for their arrest or detention under Article 5 and it would be arguable whether such measures would be an unjustifiable breach of the ECHR.

Article 8 protects the right to personal autonomy, dignity, and physical and psychological integrity. As vaccination is intrusive and cannot be done without violating the bodily integrity of the patient, compulsory medical treatment can be contested in light of Article 8.

However, as Article 8 is a qualified right, any breach of the right may be justified on public health grounds, provided that it can be shown that the breach is both proportionate and necessary in a democratic society. It is arguable whether or not the compulsory vaccination of unconsenting, competent adults fits this criteria.

It is also important to note that in a time of “public emergency threatening the health of the nation”, national governments can suspend their human rights obligations under Article 15 of the ECHR. This procedure is called derogation.

However, derogation can only take place “to the extent required by the exigencies of the situation” and to the extent allowed by international law. In addition, there are some rights that cannot be derogated from, such as Article 2 (right to life) and 3 (prohibition of torture, inhumane or degrading treatment).

In a time of “public emergency threatening the health of the nation”, national governments can suspend their human rights obligations under Article 15 of the ECHR.

At the time of writing, it has not been necessary for the UK government to derogate from its human rights obligations as part of its response to Covid-19 and of the countries that did so at the beginning of the pandemic, nearly all of them have withdrawn their derogations.

So, in a nutshell, the UK may impose a mandatory vaccination policy. Such a policy would engage several Convention Rights, and may be challenged for possible breaches. It is arguable whether or not a mandatory vaccination policy would amount to an unjustifiable breach of some of the Convention Rights.

Much is likely depend on the specifics, i.e., how mandatory vaccination is achieved. The more draconian the measures put in place, the harder they will be to justify and the more likely they are to amount to a breach of the ECHR.

For instance, criminal sanctions imposed by central government for the failure to vaccinate will be more intrusive than civil sanctions, and civil sanctions would be more intrusive than central government simply allowing those providing services to the public to independently decide the terms upon which they are willing to provide those services.

Currently, Prime Minister Boris Johnson has stated that it is not his government’s intention to make Covid-19 vaccination mandatory, but whether this is an assurance, or likely to change, is a subject for political analysis.

What do you think? Let us know your views in the comment section!

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