Inoculate to Imbibe? On the Pub Landlord Who Requires You to be Vaccinated against Covid

Written by Isra Black and Lisa Forsberg

Elsewhere on the blog Tom Douglas has discussed vaccine requirements for commonplace activities, such as going to the pub, created by the state in the form of law or guidance. Let’s call these vaccine requirements ‘state-originating’. Also on the blog, Julian Savulescu has discussed whether ‘immunity passports’ are a human rights issue. In our view, vaccine requirements or similar raise important issues of human rights in a legal, as well as ethical and rhetorical sense. Legally, since the action of public authorities would be implicated in state-originating vaccine requirements, the measures would be evaluated for their compliance with, among other things, the Human Rights Act 1998 (and therefore the rights protected by the European Convention on Human Rights) and the Equality Act 2010. The legality of state-originating vaccine requirements would depend on issues of principle (eg how should we trade-off interference with personal life and the freedoms to pursue economic and social activities?), scope (what sectors or activities?), and implementation (eg how to handle any exemptions?)

In this post, we take a different angle. We consider the legal human rights and equality dimensions of private-originating vaccine requirements—for example, ‘inoculate to imbibe’: your local pub requiring you to have had a coronavirus vaccine to enjoy a pint.

We are not claiming that private action is preferable to state action (see the Ada Lovelace Institute report on vaccine passports). However, we think private-originating vaccine requirements merit discussion because they are likely to manifest prior to any state scheme, given the challenges associated with state action (see eg the Royal Society  on vaccine passporting), and in light of the dual pressures of maintaining commercial viability (including avoiding closures) and compliance with health and safety duties owed to staff and clients.

We leave aside the interesting subject of whether employers can require employees to be vaccinated. (See recent media attention about Pimlico Plumbers’ terms of engagement for new starters, which include a vaccine requirement.) While the vaccines minister, Nadhim Zahawi has said that such arrangements are a matter for businesses, the legality of mandating vaccination in employment relationships has not been tested. But it is better to leave discussion of this issue to employment law experts.

Human rights law: vertical, maybe horizontal

There is a commonly held misconception about the reach of the Human Rights Act 1998. Typically, human rights law applies vertically, that is, in the relationship between individuals and the state. Section 6(1) of the Human Rights Act 1998 states that ‘[i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right’. So at first blush, where no state action is in play, no Convention rights are in play. If your local refuses to serve you because you haven’t had a coronavirus vaccine, they are not obviously violating your human rights under the Human Rights Act 1998.

However, there is a further and more complicated dimension to the reach of the Convention rights, that is, their horizontal effect. The Human Rights Act 1998 enables some enforcement of the Convention rights between private parties. Section 3(1) of the Act requires that ‘[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights’. Public authorities must interpret legislation in a way that makes good individuals’ human rights claims, if such an interpretation is available. Section 6(3) of the Human Rights Act 1998 clarifies that ‘“public authority” includes—(a) a court or tribunal…’. Courts must therefore act in accordance with section 3(1) of the Act.

Courts must also interpret and possibly develop the common law (very roughly, judge-made law) so that it is in accordance with the Convention rights, even in matters between private parties. Importantly, however, the courts have consistently held that they are not required to create new common law rights, only to interpret existing rights in a way that is compatible with the Convention (see Dame Elizabeth Butler-Sloss P in Venables and Thompson v News Group News Papers and others [2001] EWHC 32 (QB) [4]).

A person wishing to challenge a pub’s imposition of a private-originating coronavirus vaccine requirement would have to show that the policy engages some right they enjoy either under legislation or at common law in order for there to be a beachhead for human rights law argument. And of course, even if a beachhead is established, the claimant will need to show that the policy impermissibly infringes their Convention rights.

Boris Johnson has claimed that there exists an ‘ancient, inalienable right of free-born people of the United Kingdom to go to the pub’. We are sceptical as to whether a legally protected interest of this kind exists under statute law or at common law on which to hang a human rights claim against publicans. However, another set of rights that may support a claim against your local pub in some circumstances are those recognised by the Equality Act 2010.

Equality law

The Equality Act 2010, section 29 makes it unlawful to discriminate (without reasonable adjustments) against individuals in the provision of goods, services, or facilities on grounds of the seven protected characteristics: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation (section 4). Discrimination for the purposes of the Equality Act 2010 can take, among others, a direct (section 13) or indirect form (section 19).

The Equality Act 2010 gives private individuals a cause of action against public authorities and, among others, private service providers. The Equality Act 2010 cause of action may provide a site for horizontal effect of the Convention rights. We have seen the Act assist private individuals in claims against providers who have refused services. For example, in Black & Morgan v Wilkinson [2013] EWCA Civ 820, a Christian B&B owner was held to have discriminated against a gay couple who she refused a double bedroom.  At least four of the Equality Act 2010 protected characteristics might be thought relevant to a potential challenge of private-originating coronavirus vaccine requirements, including a vaccination for pints policy.

First, ‘inoculate to imbibe’ may provide a textbook example of indirect discrimination on grounds of age. Indirect discrimination involves measures that at face value apply to all, but have a disproportionate impact on some people with a protected characteristic. Until all adults have had fair opportunity to have a coronavirus vaccination, because of UK government policy on vaccine prioritisation, a private-originating vaccine requirement will systematically disadvantage younger members of the population, especially those aged 18-49 who will have to wait the longest for immunisation.

Second, disability. Requiring a vaccination to go to the pub may discriminate against those individuals who are unable to be vaccinated because of a disability-related contraindications. Third, pregnancy and maternity—until evidence to support routine vaccination of pregnant women is available, it may be discriminatory under the Equality Act 2010 to require vaccination for access to services. Reasonable adjustments would need to be made for these two categories, which would make any vaccine requirement scheme more intrusive in terms of privacy and more difficult to operationalise.

Fourth and perhaps most contentiously, religion or belief. On religion, a person might claim discrimination under equality law if their religion (genuinely) requires vaccine refusal. However, there do not seem to be mainstream concerns in relation to coronavirus vaccines. For example, the Pope has clarified that covid vaccines ‘can be used in good conscience’ notwithstanding that vaccines may be derived from cell lines originating in aborted foetal tissue. More troublesome for pubs may be religious communities with more diffuse structures of authority and for interpretation of scripture.

On belief, a belief for the purposes of the Equality Act 2010 (and human rights law in general) is defined in Grainger v Nicholson [2010] 2 All ER 253 (EAT) [24] (Burton J):

(i) The belief must be genuinely held.
(ii) It must be a belief and not… an opinion or viewpoint based on the present state of information available.
(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.
(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.
(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others

Here we might want to distinguish the prospects of a successful action for discrimination under equality law according the kind of belief that underpins vaccine refusal. Some people may object to coronavirus vaccination on grounds of its association with various conspiracy theories (eg 5G, Bill Gates, the ‘Great Reset’ etc). Even assuming the satisfaction of criterion (ii), such beliefs may face difficulties on criteria (iv) and (v) of the Grainger test.

We should consider two other sets of objections to coronavirus vaccination that may be beliefs for the purposes of the Equality Act 2010. First, some people may believe that mass infection is desirable or that natural infection is preferable to population immunisation. Even if herd-immunity through infection beliefs may satisfy criteria (i)-(iv) of the Grainger test, they potentially fall foul of criterion (v): they may be incompatible with the fundamental rights of others. Second, and perhaps this is the most persuasive foundation for an equality claim, negative beliefs about vaccination may intersect with race to the extent that reluctance and refusal of coronavirus vaccination may be grounded in well-founded distrust of the state arising from its practices of racism and injustice. To refuse unvaccinated minority ethnic people access to pubs may compound existing discrimination.

It is important to note, however, that even if discrimination can be established on any of the above grounds, it may be justifiable if it can be shown to be ‘a proportionate means of achieving a legitimate aim’ (Equality Act 2010, ss 13(2); 19(2)(d)).

* * *

It is plausible that we will see private-originating coronavirus vaccine requirements in the near future, for example, pubs implementing ‘inoculate to imbibe’ policies. The application of the Human Rights Act 1998 and the European Convention on Human Rights may seem limited here, since such policies will operate between private parties. However, we suggest that there may be some scope for Equality Act 2010 claims, and in virtue of the former, a beachhead for ‘horizontal effect’ of the Human Rights Act 1998.

The success of Equality Act 2010 claims depends on whether discrimination is established by reference to the Act’s protected characteristics and whether the restrictions are justified as ‘a proportionate means of achieving a legitimate aim’. The ‘horizontal effect’ of the Human Rights Act 1998 in this domain will depend on whether there exists a cause of action under legislation or at common law, as well as the content of the fundamental freedoms and interests the Convention protects and how they relate to each other.

Given the legal complexity of these issues, state action on vaccine requirements for pub-going and other valuable activities is highly desirable.

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