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Report Health data and COVID-19 tech

Checkpoints for vaccine passports: Law, rights and ethics

Legal and ethical issues should be weighed in advance of any roll-out of a vaccine passport system, with guidance, oversight and regulation needed.

10 May 2021

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Black outline of set of scales in red circle

The introduction of any vaccine passport system inevitably intersects with a wide variety of legal concerns, including equality and discrimination, data protection, employment, health and safety, and wider human rights laws. Any scheme will also have to make clear trade-offs between ethical and societal commitments, and this will be complicated by intersections between legal concerns and broader ethical and societal concerns. These are likely to manifest in the domain of rights; on questions of individual liberty, societal equity and fairness; risks of new forms of stratification and discrimination, both within societies and across borders; and new geopolitical tensions.

In this chapter we examine these legal, ethical and rights concerns in context.

Legal systems are inherently specific to their jurisdictions. There is some commonality across legal regimes, arising from shared histories, international agreements, and from many jurisdictions’ responses to similar issues over time. For example, the International Bill of Human
Rights and its constituent parts, the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR) form an international framework that informs and underpins the legal protection of human rights in jurisdictions around the

As described above – much of the evidence compiled in this report represents laws operating in the UK and Europe. Comparing the legal dimensions of certification schemes across jurisdictions is beyond the scope of this report, but given the international alignment on human rights, some analysis may be transferable to jurisdictions not directly considered here.

Similarly, the view below represents a broadly Western set of ethical and social values. The findings may be useful to other jurisdictions, recognising that alternative conditions and cultures may represent substantially different concerns, or take universal issues and interpret or weight them differently.

Further, counterfactual possibilities are an important consideration in ethical analysis of COVID status certification systems. These systems will only represent one policy intervention in a full complement of public health, economic and social policy that governments can make to mitigate the effects of the pandemic. The feasible alternatives to COVID vaccine passports that are under consideration by governments – for example whether to continue full lockdowns, implement slower general reopening or propose a full reopening against different background risks from COVID-19 – are therefore important in any analysis of their ethics,
in evaluating the marginal economic, societal and health benefits and harms.2

Principal areas of debate have focused on personal liberty, privacy and other human rights, fairness, equality and non-discrimination, societal stratification and international equity.


Checkpoints for vaccine passports

This is one of six requirements for a socially beneficial vaccine passport system, as outlined in a report based on an extensive review of the key debates, evidence and common questions around digital vaccine passports

Personal liberty

Over the last year, civil liberties have been restricted in the form of lockdowns and other public health restrictions. During a pandemic, this is justified by the fact that an infected person can cause harm and death to others. For COVID-19 in particular, widespread transmission in
communities and high rates of transmission without symptoms means that an individual’s risk to others is difficult to determine, and therefore universal restrictions are justified to prevent harm to others.3

Some bioethicists have argued that there are strong ethical arguments in favour of COVID status certification systems that use antibody tests and/or proof of vaccination.4 They argue that these COVID status certification systems represent the least restrictive option for individual liberties, without causing additional harm to others, when compared to other pandemic responses such as lockdowns. They argue that those
who can demonstrate that they are highly unlikely to spread COVID-19 no longer pose a risk to others’ right to life, and so it is unjustified to restrict their civil liberties.

The argument centres on an individual being able to prove that they are not a substantial risk to others, through proof of vaccination or antibodies, to lift restrictions on that individual’s liberty. This argument does not necessarily require vaccination or natural immunity to COVID-19 to be perfect: we commonly accept a level of risk in our everyday lives, for example infectious diseases like flu are considered to be a tolerable risk, to be managed without additional restrictions.

This argument requires a vaccine or natural immunity to reduce risk to an acceptable level to remove the justification for restrictions. The strength of this argument therefore turns on what level of risk is acceptable for a given society, the impact vaccinations and antibodies have on
transmission and therefore risk to others, and the degree of certainty we are willing to accept in the evidence on transmission.

If all those conditions can be met, then COVID status certification is argued to represent a ‘pareto’ improvement on lockdown measures for some people without others’ situation worsening, i.e. they expand the number of people who can exercise their personal liberty without infringing on the liberties of others or increasing the risk of harm to others.

Any COVID status certification scheme should also ensure it does not arbitrarily interfere with individual human rights, in particular the right to respect for private life, the rights to freedom of assembly and movement and the right to work.

State sanctioned systems which require the collection and disclosure of personal information fall within the scope of the right to privacy guaranteed by provisions such as Article 8 of the ECHR and implemented in national laws, e.g. in the UK, under the Human Rights Act
1998.5 Vaccine passport systems which rest on the generation, collation and dissemination of sensitive personal health information, and which may also permit monitoring of individuals’ movements by a range of actors, will be permissible when they are in pursuit of legitimate aims that justify interference with the right, including ‘the protection of health’ and ‘the economic well-being of the country’. However, even if these aims are clearly being pursued, any interference with this right must satisfy the cumulative tests of legality, necessity and proportionality:6

  • The legality test requires that COVID status certification schemes interfering with the right to respect for private life must have a basis in domestic law and be compatible with the rule of law.
  • The necessity test demands that the measures adopted address a pressing social need.
  • The proportionality test requires that the measures taken by public authorities are proportionate to the legitimate aims pursued and entail the least restrictive viable solution.

COVID status certification schemes may well be able to meet these tests, given the scale of physical and mental harms caused by the COVID-19 pandemic, directly and indirectly, and the economic damage that has resulted. However, again, decision-makers will need to demonstrate they have sufficient scientific evidence to justify the necessity and proportionality of these schemes. Further, the requirement of proportionality necessitates transparently weighing these schemes against alternatives, such as greater investment in test, trace and
isolate schemes (e.g. additional support payments and sick pay) and considering the marginal protection to health, benefit to economic wellbeing, and restrictiveness of certification schemes.

Other human rights, including the right to work, and the freedoms of assembly and movement, may also be engaged by vaccine passport systems, and restrictions on those rights must similarly be justified in accordance with the tests for permissible limitations. The implications
of vaccine passports for the right to freedom of assembly deserve particular scrutiny, in light of the protests that have occurred since the start of the pandemic, and the responses to protests such as Black Lives Matter in summer 2020. During moments of exceptional societal
upheaval, peaceful assembly and protest remain critical tools for ensuring justice and demanding democratic accountability. Although the protection of public health constitutes a legitimate purpose to limit the exercise of such rights, there is a legitimate concern that restrictions on assembly and protest may be disproportionately applied in the name of
pandemic prevention.7 Consideration should be given to the potential for misuse of a vaccine passport system by a government with ulterior motives, or repurposed in future by subsequent administrations.


Arguments for and against vaccine passports centre around fairness: some have argued that until everyone has access to an effective vaccine, any system requiring a passport for entry or service will be unfair.8 Responses to this have suggested introducing proof of vaccination requirements only once vaccines are widely available, and exempting those who are not eligible to be vaccinated from the need to prove their vaccination status. (Note that, epidemiologically speaking, a system would cease to be useful once herd immunity had reached a level sufficient to protect against transmission.)9

Others have argued that while it is true that COVID status certification is ‘unfair’ in the sense that only some people will be able to access them, that differential access is not arbitrary and is instead based on a genuine reduction in risk associated with those individuals who have
been certified.10 Therefore, there is a legitimate reason to afford them a different treatment.

It is further argued that pandemics are necessarily unfair and responses to them, such as lockdowns, have differential effects even if the same rule is applied to all. Some can work from home in secure jobs, while others lose their jobs and businesses, and those providing healthcare and essential services are required to expose themselves to risk. This, it is argued, is unfair under another view of fairness. The debate is given further complexity by introducing choices between different kinds of unfairness and questioning whether that unfairness has a legitimate underpinning.

Some argue that benefits of COVID status certifications schemes could also spill over to those not eligible. For example, greater economic activity would allow the continued existence of hospitality, leisure and cultural venues that might have otherwise been forced to close, and
would preserve them for others to access once they become eligible for certification or once restrictions are lifted for all.

On the other hand, certification schemes may exacerbate inequalities between those who might be free to return to work or seek certain kinds of employment, and those uncertified who cannot. Existing distrust of the state, identity infrastructure and vaccines could put some groups at a particular disadvantage. Globally, access to digital technology, forms of identification, tests and vaccines is already unequal, and COVID status certification schemes may unintentionally mirror and reinforce existing inequalities without wider programmes for addressing health inequalities.

Many therefore argue that COVID status certification schemes must be accompanied by a redistribution of the resources and benefits they create, for example by providing additional support to ease the costs to those still facing restrictions, to maximise the fairness and equity of any scheme.11

Equality and non-discrimination

COVID status certification systems discriminate on the basis of COVID-19 risk by design. The relevant legal question is therefore whether the law protects against this kind of discrimination, either directly or indirectly, and if so, whether that discrimination is proportionate (and
therefore permissible) in pursuit of other legitimate aims.

Article 1 of the Universal Declaration of Human Rights (UDHR) recognises that ‘all human beings are born free and equal in dignity and rights’. International treaties on human rights such as the ECHR operationalise the right to equality by establishing guarantees against discrimination (Article 14 ECHR).12

In the UK, the Equality Act 2010 provides a single legal framework for the protection of equality and the right to non-discrimination. Relevant to issues of COVID status certification are protections against discrimination on the basis of:13

  • age
  • disability
  • pregnancy and maternity
  • religion or belief
  • race.

For example, a vaccination requirement allowing differential access could be challenged on grounds of indirect discrimination on the basis of age, at least until all adults have had fair opportunity to have a coronavirus vaccination. UK Government policy prioritises primarily on the basis of age, meaning that a vaccination requirement would systematically disadvantage younger members of the population. Similar legal concerns around discrimination are likely to arise in other countries with age-based vaccination prioritisation.

Even once all eligible adults have been offered a vaccine, those groups where vaccination is not recommended may still be able to claim that a vaccination requirement is discriminatory under the Equality Act 2010.

Others might be able to claim discrimination on the basis of religion or belief that requires vaccine refusal. Faith leaders across many major organised religions have endorsed COVID-19 vaccination,14 but this won’t cover religious communities with different beliefs or interpretation of religious texts, so may legitimately claim their religious convictions require vaccine refusal and therefore argue that vaccine requirements constitute discrimination.

Finally, vaccination hesitancy has been shown to correlate with ethnic background in some communities,15 due to distrust of the state arising from longstanding, evidenced practices of racism and injustice.16 Requiring vaccination may therefore compound existing discrimination. This indirect discrimination is apparently one of the concerns raised with the UK Government by its equalities watchdog, the Equality and Human Rights Commission.17

These concerns are relevant to both private- and government-provided systems. The Government may also have human rights obligations to prevent discrimination by private providers, even if the discrimination is not directly imposed by the state and instead the state simply fails to ‘protect individuals from such discrimination performed by private

Some of these potential forms of discrimination would be ameliorated once there is widespread access to vaccination and if evidence emerges that vaccination is appropriate for groups currently advised against it for medical reasons. However, some discrimination will be present in any scheme based on vaccination requirements. The question for any scheme reliant on vaccine certification then becomes: if discrimination can be established on any of these grounds, is this discrimination ‘a proportionate means of achieving a legitimate aim’ under the provisions of the Equality Act 2010?19

Many of these discrimination concerns can potentially be avoided if appropriate alternatives to vaccination certification are available, for example by exempting certain groups or through providing a negative viral test alternative.

Some schemes could prove discriminatory against minority ethnic communities and women with darker skin tones in particular because of the way they verify identity.12 It has been suggested that some COVID vaccine passport schemes could use facial recognition to verify an individual’s identity.21 Research demonstrates that commonly used commercial facial recognition products do not accurately identify Black and Asian faces, especially when trying to recognise women with darker skin types.22 This could also lead to unlawful discrimination on grounds of race, if the products are inaccurate and there are not alternative ways to verify identity.

Societal stratification

Some bioethicists have highlighted that marginalised groups as a whole may face more scrutiny, as the creation of new checkpoints to access services and spaces may perpetuate disproportionate policing.23

Labelling people on the basis of their COVID-19 status would also create a new categorisation by which society could be stratified, i.e. the ‘immunoprivileged’ and the ‘immunodeprived’, potentially creating circumstance for novel forms of discrimination.3 This could happen informally without any certification schemes, as individuals already have access to and can share their own vaccination status, but certification schemes could increase the salience of those distinctions and amplify those distinctions by creating social situations that can only be accessed by those in possession of ‘immunoprivilege’.

This kind of immunological stratification is not without precedent. In nineteenth-century New Orleans, repeated waves of yellow fever generated a hierarchy of ‘immunocapital’ where those who survived became ‘acclimated citizens’ whose immunity conferred social, economic and political power, and ‘unacclimated strangers’ – generally those who had recently migrated to the area – were treated as an underclass. This stratification also helped to entrench existing ethnic and socioeconomic inequality.25

International equity and stratification

There are many low-income countries that do not currently have the economic capacity to acquire all the doses needed to immunise their whole population. Even with the support of COVAX – an international scheme designed to improve access to vaccines – many countries will only be able to vaccinate their most vulnerable citizens in the near future. Furthermore there are stark inequalities in access to cold chains and transportation, as well as capacity to administer vaccines.26

Adding to these health inequalities, people from such countries are disproportionately likely to have their freedom of movement restricted if an international vaccinate passport scheme is put in place. This will particularly affect stateless, undocumented migrants, refugees (whether
internationally or internally displaced), and similar groups who lack or even fear formal connections to governmental public health bodies.

Citizens of these low-income countries may already be discriminated against. As Dr Btihaj Ajana puts it, ‘the amalgamation of borders, passports, and biometric technologies [that] has been instrumental in creating a dual regime of circulation and an international class
differentiation through which some nations can move around and access services with ease while others are excluded and made to endure an “excess of documentation and securitisation”.’27

For example, health practitioners and researchers from low-income countries already struggle to conduct research, share their work at conferences and undertake consultancy work in high-income countries, because of existing difficulties obtaining visas and meeting entry
requirements. International COVID vaccine passports could worsen this imbalance, making diversity and inclusion an even more difficult task in the field, and side-lining valuable expertise of academics in low-income countries.28

It is easy to see how similar problems could arise in other fields and industries, meaning that COVID vaccine passports could add another layer of discrimination to this existing system and have consequences beyond the official end of the pandemic. (We return to the future risks these systems pose in a later chapter).

The structure of the global economy may push countries whose citizens might be excluded by international COVID vaccine passport schemes into supporting their development. Many low-income countries are dependent on tourism, and thus are incentivised to support schemes in
order to restart the flow of visitors. These differential incentives play out in supranational administrations like Europe, where the main supporters of the European Union Digital Green Certificate have been countries like Greece and Spain, which are more reliant on tourism than their northern neighbours.

None of this is to condemn countries for responding to those incentives. For countries reliant on tourism, and especially lower-income ones with a comparatively younger population and fewer economic alternatives, taking on the risks of virus transmission and discrimination may be worth it for the net economic and wider health benefits. Countries should not be condemned for responding to those incentives, but the analysis of how their decisions are shaped and constrained by existing global inequities is informative.

There is already pressure on governments to acquire vaccine supplies, which in turn triggers a form of ‘vaccine nationalism’ – where richer countries are able to buy up supplies of vaccines where poorer ones can’t. Tying movement to vaccine certification could entrench existing
global inequalities, making international cooperation on any schemes even more important. International friction is especially unhelpful when vaccination is, ultimately, a global public good. Any individual country’s fate is tied to reaching international herd immunity, as we are already seeing with new strains emerging. In the present moment we are seeing tensions play out as calls are made for countries to donate the vaccines they have acquired to India as it faces a growing crisis,29 and debates intensify about temporarily suspending vaccine patents.30

Oversight and regulation

Enforcement of existing legal protections will be carried out principally by the courts and through litigation. However, regulators and independent bodies with relevant remits, through the enforcement of existing regulation and issuance of context-specific guidance, will also have a role in legal accountability and oversight of COVID status certification systems, both before they are implemented and during any roll-out. Many use cases will also necessarily cut across multiple remits, as workplace schemes might engage data protection, contract law, equalities, and workplace health and safety concerns.

Regulators like the United Kingdom’s Information Commissioner’s Office have said they would approach a detailed COVID status certification scheme proposal in the same way they would approach any other initiative by government.31 International forums of data protection and privacy authorities have also begun to issue pre-emptive guidance on certification systems.32

Relevant regulators and independent bodies may include:

  • data protection authorities
  • national human rights institutions
  • occupational Health and Safety regulators
  • medical products regulators
  • centres for disease control and prevention, and other public health bodies.

Certain types of domestic laws can be changed in certain countries, and international law contains derogation clauses for specific purposes. However, Governments should be on guard not to needlessly tear down Chesterton’s Fence.33 If governments want to change a law or make a special carve-out for status certification schemes, they should know why the laws preventing it were enacted in the first place and be able to explain clearly why legal changes are necessary and proportionate, acknowledging potential unintended consequences.

Recommendations and key concerns


  • Governments must act urgently to create clear and specific guidelines and law around any uses, mechanisms for enforcement and methods of legal redress of COVID status certification. Given the sensitive nature of these systems, private actors will need legal clarity whether or not legal changes are enacted. Contextual guidance should be issued with interpretations of existing law, even if legislators don’t change anything. Regulators and independent bodies with relevant remits should take pre-emptive action to clarify the regulation and guidance they oversee, and take pro-active steps to ensure enforcement where possible.
  • Regulators should work cooperatively, acknowledging that many use cases will necessarily cut across multiple remits, and therefore a clear division of responsibilities is essential so that poor practice doesn’t fall through the cracks. Working together to provide maximum clarity in a fast-moving area, will ensure that regulators do not issue contradictory guidance.
  • If there are tensions between different obligations, regulators should work together to resolve those rather than passing the burden on to businesses and individuals. If combinations of obligations make a specific system unworkable, regulators should also be empowered to flag that to government, businesses and the public, and pass responsibility on to democratically elected bodies to untangle those contradictions in a public forum.
  • Those responsible for rolling out any certification schemes should be required to publish impact assessments, including Data Protection Impact Assessments and Equality and Human Rights Impact Assessments, which outline what protections are being put in place to reduce risks and mitigate harms.
  • Any legal changes should be made via primary legislation to ensure proper scrutiny and debate, rather than emergency regulations introduced at hours’ or days’ notice.34 If a COVID certification scheme is to be temporary, legislation should include clear sunset clauses and be accompanied by explanations as to how the system will be dismantled.

Requirement four: Sociotechnical design and operational infrastructure

Read about the fourth of six requirements that governments and developers will need to deliver to ensure any vaccine passport system deliver societal benefit


  1. Beduschi, A. (2020) Digital Health Passports for COVID-19: Data Privacy and Human Rights Law. University of Exeter. Available at: (Accessed: 6 April 2021).
  2. Julian Savulescu and Rebecca Brown, Response to Ada Lovelace Institute call for evidence
  3. ibid.
  4. Julian Savulescu and Rebecca Brown, Response to Ada Lovelace Institute call for evidence.
  5. Beduschi, A. (2020)
  6. European Court of Human Rights. (2020) Guide on Article 8 of the European Convention on Human Rights. Available at: (Accessed: 6 April 2021).
  7. Access Now, Response to Ada Lovelace Institute call for evidence
  8. Privacy International (2020) “Anytime and anywhere”: Vaccination passports, immunity certificates, and the permanent pandemic. Available at: (Accessed: 26 April 2021).
  9. Douglas, T. (2021) ‘Cross Post: Vaccine Passports: Four Ethical Objections, and Replies’. Practical Ethics. Available at: (Accessed: 8 April 2021).
  10. Brown, R. C. H. et al. (2020) ‘Passport to freedom? Immunity passports for COVID-19’, Journal of Medical Ethics, 46(10), pp. 652–659. doi: 10.1136/medethics-2020-106365.
  11. UK Ethics Accelerator, Response to Ada Lovelace Institute call for evidence; Julian Savulescu and Rebecca Brown, Response to Ada Lovelace Institute call for evidence
  12. Beduschi, A. (2020).
  13. Black, I. and Forsberg, L. (2021) ‘Inoculate to Imbibe? On the Pub Landlord Who Requires You to be Vaccinated against COVID’. Practical Ethics. Available at: (Accessed: 6 April 2021).
  14. Hindu Council UK (2021) Supporting Nationwide Vaccination Programme. 19 January 2021. Available at: (Accessed: 6 April 2021); Ladaria Ferrer. L., and Giacomo Morandi. G. (2020) ‘Note on the morality of using some anti-COVID-19 vaccines’. Vatican. Available at: (Accessed: 6 April 2021); Sadakat Kadri (2021) ‘For Muslims wary of the COVID vaccine: there’s every religious reason not to be’. The Guardian. 8 February 2021. Available at: (Accessed: 6 April 2021).
  15. Office for National Statistics (2021) Coronavirus and vaccination rates in people aged 50 years and over by socio-demographic characteristic, England: 8 December 2020 to 12 April 2021. 6 May 2021. Available at: Coronavirus and vaccination rates in people aged 50 years and over by socio-demographic characteristic, England – Office for National Statistics (
  16. Schraer. R., (2021) ‘Covid: Black leaders fear racist past feeds mistrust in vaccine’. BBC News. 6 May 2021. Available at: (Accessed: 7 May 2021)
  17. Allegretti. A., and Booth. R., (2021).
  18. Horizon Digital Economy Research Institute, Response to Ada Lovelace Institute call for evidence.
  19. Black, I. and Forsberg, L. (2021).
  20. Beduschi, A. (2020).
  21. Thomas, N. (2021) ‘Vaccine passports: path back to normality or problem in the making?’, Reuters, 5 February 2021. Available at: (Accessed: 6 April 2021).
  22. Buolamwini, J. and Gebru, T. (2018) ‘Gender Shades: Intersectional Accuracy Disparities in Commercial Gender Classification’, in Conference on Fairness, Accountability and Transparency. PMLR, pp. 77–91. Available at: (Accessed: 6 April 2021).
  23. Kofler, N. and Baylis, F. (2020) ‘Ten reasons why immunity passports are a bad idea’, Nature, 581(7809), pp. 379–381. doi: 10.1038/d41586-020-01451-0.
  24. ibid.
  25. Olivarius, K. (2019) ‘Immunity, Capital, and Power in Antebellum New Orleans’, The American Historical Review, 124(2), pp. 425–455. doi: 10.1093/ahr/rhz176.
  26. Access Now, Response to Ada Lovelace Institute call for evidence.
  27. Dr Btihaj Ajana, Response to Ada Lovelace Institute call for evidence.
  28. Pai. M., (2021) ‘How Vaccine Passports Will Worsen Inequities In Global Health,’ Nature Portfolio Microbiology Community. Available at: (Accessed: 6 April 2021).
  29. Merrick. J., (2021) ‘New variants will “come back to haunt” the UK unless it helps tackle worldwide transmission’, iNews, 23 April 2021. Available at: (Accessed: 5 May 2021).
  30. Kuchler, H. and Williams, A. (2021) ‘Vaccine makers say IP waiver could hand technology to China and Russia’, Financial Times, 25 April 2021. Available at: (Accessed: 5 May 2021).
  31. Digital, Culture, Media and Sport Committee Sub-Committee on Online Harms and Disinformation (2021). Oral evidence: Online harms and the ethics of data, HC 646. 26 January 2021. Available at: (Accessed: 9 April 2021).
  32. Global Privacy Assembly Executive Committee (2021) Global Privacy Assembly Executive Committee joint statement on the importance of privacy by design in the sharing of health data for domestic or international travel requirements during the COVID-19 pandemic. 31 March 2021. Available at: (Accessed: 6 April 2021).
  33. A principle that argues reforms should not be made until the reasoning behind the existing state of affairs is understood, inspired by a quote from G. K. Chesterton’s The Thing (1929), arguing that an intelligent reformer would not remove a fence until you know why it was put up in the first place.
  34. Pietropaoli, I. (2021) ‘Part 2: Getting Digital Health Passports Right? Legal, Ethical and Equality Considerations’. British Institute of International and Comparative Law. 1 April 2021. Available at: (Accessed: 6 April 2021).

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