Covid certificates - there is no right answer

So Covid-status certificates remain on the government’s agenda. It recently published its updated ‘Roadmap reviews’. Cue heated emotion on all sides, as the right to go about one’s business in freedom meets head-on the right to go about one’s business in safety.

The Law Society has sent its views to the government. Solicitors are themselves both employers, sometimes on a large scale, and also users of venues such as courts where many people circulate.

The Gazette covered the main outline of the Law Society’s position, but it is worthwhile nevertheless to concentrate on a few points.

Although the certificate will definitely not be a vaccination passport, since it will also cover people with a recent negative test and those who have natural immunity after recovery from infection in the last six months, we are used to vaccination passports.

I have a ‘health passport’ issued in accordance with International Health Regulations of the World Health Organisation, showing when I have been vaccinated against typhoid, polio, tetanus and yellow fever. It has allowed me entry to various countries. The government is clear that such a certificate will be required for post-pandemic travel in future. In other words, the argument is not against the principle, but against its use within our own borders.

The government document references the EU’s Digital Green Certificate to facilitate safe free movement inside the EU. If we accept that we are going to need a certificate of some sort to cross borders, it is sensible if our domestic certificates are interoperable with whatever is produced elsewhere, including the EU, where a good deal of UK outwards travel is likely to take place in future (of course subject to vaccine roll-out, no outbreak of a shooting war over vaccine nationalism, red lights, green lights, amber lights, and all the rest).

With this in mind, and since data access and data retention are among the most important concerns over the Covid-status certificate, it is useful to look at the EU’s data requirements for their own certificates, which also cover vaccination, testing and recovery. Their requirements are clear, stating among other things:

• the certificates will include only a limited and defined set of information that is necessary (such as name, date of birth, the issuing member state and a unique identifier of the certificate, plus the relevant data relating to the vaccination, test or recovery)

• the data cannot be retained by those scanning the certificate

• when verifying the certificate, only the validity and authenticity of the certificate is checked, by verifying who issued and signed it (all health data remains with the issuer).

There are many more details, such as which tests will be acceptable (not self-tests, and only certain authorised others), and which vaccines. The wording on the acceptability of vaccines is careful, given that some member states have started using vaccines not yet authorised by the European Medicines Agency – so authorised vaccinations must be accepted by all, but member states have the right to accept others if they wish.

To return to the domestic position, one of the Law Society’s concerns has been the impact on discrimination, and it has asked for clear guidance on various aspects: for instance, how to manage risk through measures that do not rely on excluding the non-vaccinated, and on the rights and protections of the non-vaccinated (for whatever reason people are not vaccinated).

There is no correct answer to the biggest question of all, which is the conflict between the right to go about one’s business freely and the right to go about one’s business safely in a domestic setting. The government’s line is that, since some businesses will use certificates, it is best if there is a standard available.

The Law Society sensibly does not come down on either side of the debate. The argument has existed since the pandemic began - you can take your pick of debating points from the media - and the hostilities between the freedom and safety brigades will, it seems, play out in parliament shortly. At that stage, a decision will be made, and subsequently the courts will have to settle individual cases.

We lawyers should bring to the debate the values that I have mentioned before: how as officers of the court, with the concomitant duties of not knowingly making a false statement to the court, of disclosing material facts to the court, and of bringing to the attention of the court any relevant legal authority, even if unhelpful to our client’s case, we can show loyalty to a higher value than the point we are making at a particular time.

Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and are not made in his capacity as a  Law Society Council member, nor on behalf of the Law Society