The issue with vaccine certification – or ‘vaccine passports’ – is not that they are discriminatory – as all certification is discriminatory, if you think about it

1st March 2021

Over at the Financial Times I have a piece today on ‘vaccine passports’ – that is, a system of certification that a person has or has not had the coronavirus vaccine.

That article demonstrates my weakness as a commentator in the traditional media sense, as on this subject I do not happen to have strong views either way.

I do not have an ‘angle’ that will (conveniently) last from between 800 to 1100 words – no ultimate position that I am arguing for and articulating on your behalf for your claps and cheers.

Instead, on this policy (as on many others) I can only see difficulties – and difficult choices.

And these difficulties are, in turn, because of the very nature of certification.

All certification is discriminatory – that is its very point.

Certification enables (or should enable) a state of affairs to be asserted in a manner that then allows a decision-maker to make one decision instead of another.

That is: to discriminate.

The problem is not with discrimination in and of itself.

The problem is when that discrimination is unfair – either directly or indirectly.

Accordingly, it is not a complete answer to the proposal of any form of certification to dismiss it as discriminatory.

For all you are then saying is that a system of certification is acting, well, as a system of certification should.

The more important questions are whether that a policy of certificates would be reliable – and, if reliable, whether the benefits will outweigh the costs and whether it will not create unwanted inequalities, either directly or indirectly.

These are problematic things to consider – and for which there may not be an easy solutions – and in respect of which difficult choices will need to be made.

And to point such things out is a purpose of law and policy commentary.

Not all commentary is cheerleading for one position or the other.


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28 thoughts on “The issue with vaccine certification – or ‘vaccine passports’ – is not that they are discriminatory – as all certification is discriminatory, if you think about it”

  1. The semantics are interesting. I work in assessment, and for a test, it is a good thing if it shows discrimination: generally, the higher the Discrimination Index (a defined term), the better. But, as you indicate, people would not be happy if I said the tests were discriminatory. You say the policy should be reliable: again in my technical terms, that would mean ‘consistent’ rather than the everyday meaning of ‘capable of being relied upon’. I think I would add ‘valid’ – that the decision process does what it is intended to do.
    I could add more – but I fear I have been irksome enough…

  2. I agree about “reliability”.

    This gives rise to some legal questions:

    1. Should certificates be issued by a public authority and if so should that authority have immunity from action for errors – and if so, what is the threshold? (The FCA cannot be sued for negligence unless it is shown not to have acted in good faith – and the distinction between “not in good faith” and “in bad faith” is important)

    2. Should there be some form of public register or at least method of checking online?

    3. Should there be some mechanism for appeal for a refusal to issue a certificate?

    A further point: as health and in general COVID policy is devolved, (1) can the Scottish Parliament legislate for Scotland and (2) can the Westminster parliament properly legislate for the whole UK? And if vaccination passports are devolved, how does that fit in with negotiations for international acceptability? (Similar questions would presumably arise over EU v member state roles)

  3. I guess it is a Question of being able to do a Vaccine Passport. Israel has 20 Years experience with electronic Patient Card and the System is in Place to do what they are doing.
    Here in Germany we started the digital infrastructure for that last year after talking it to death for over a decade. I am not sure the UK has the Infrastructure in place, a bit like Germany I guess.

  4. It’s not so much that a certificate is discrimatory.

    The point is that, after you have decided to discriminate, a certifcate streamlines the process of putting that discrimination into action.

    Creating a certificate therefore implies a decision to discriminate, and that discision is what should be being debated.

  5. Thank you, as ever, for the time and care you take in making these comments and for the important point that not every issue has “an ‘angle’ that will (conveniently) last from between 800 to 1100 words”. Just one point, though. You are absolutely correct about the meaning of discrimination and that the issue is whether the discrimination is unfair or not. Nevertheless, I reluctantly have come to the conclusion that so many people are using the word (consciously or unconsciously) as a shorthand for unfair discrimination that it is necessary to address the point they are seeking to make rather than winning the linguistic argument about the meaning of the word and losing the substantive argument because some people lose interest in the main point.

    1. The linguistic side of this is made more confusing because a few people still use “discriminating” in a positive sense, eg “She is discriminating in her tastes.”

  6. There’s nothing wrong with discrimination per se – the “Use By” date on a food items explicitly serves as a way to discriminate between food which is safe to eat and food which may not be.

    By the same token, I want to be able to discriminate between those who have and have not had a Covid vaccination – it’s as much in my own interests to be able to do so, as is reading the Use By date.

    Frankly – given that there is no good reason whatsoever not to be vaccinated – I have zero sympathy for the “rights” of the selfish idiots who refuse to go under the needle.

    That, as a result, they’re more likely to make their only worthwhile contribution to the gene pool by catching Covid, is my only solace…

    1. ‘no good reason whatsoever not to be vaccinated’ – well thank you, I will pass that confident statement on to the doctors who have advised both my husband and me not to be vaccinated!

    2. While I agree with your “zero sympathy” to some extent, I strongly disagree with your statement that “there is no good reason “. If you look at any vaccination program, you will find that there are people with some medical conditions that are advised NOT to have the vaccine due to likely adverse reactions

    3. Some people are not able, at present to have the vaccine, for medical reasons. I am following one on Twitter who was rather desperate about it, but she’s allergic to ingredients used in the AZ and Pfizer vaccines – she went in for her vaccination but wasn’t allowed to have it. She is hoping to get a different vaccine at a future date. So, just be aware that not everyone who fails to be vaccinated does so by choice.

    4. There are good reasons to not take a vaccine as others have already highlighted.

      I would add another one: a refusal to take a morally tainted vaccine, namely, one derived from stem cells of an aborted fetus. That’s not an objection a vaccination per se but at the moment there exists no alternative morally acceptable vaccine for some.

      1. In case there is any confusion, as far as I am aware, none of the coronavirus vaccines that are available in the UK contain any material derived from an aborted foetus.

        Anyone in the US or the UK worried about “moral taint” from association with cells descended through many generations from some harvested decades ago may want to consider closely the historical circumstances that led to their countries being quite so wealthy, and how many generations should be punished for the wickedness and sin of their ancestors.

          1. That report from October 2020 is not correct. Yes, decades old cell lines are used in the testing, and in some cases in manufacturing, of the vaccines, but they are not left in the final product.

            The vaccines available in the UK – and at present that means Pfizer and AstraZeneca – do not contain such cells.

            For example:

            To quote the summary there:

            “* No COVID-19 vaccine contains cells from aborted fetuses.
            * A replica cell line from a fetus aborted in 1973 was used to develop the AstraZeneca/Oxford University vaccine. However, the vaccine itself does not contain fetal cells.
            * New mRNA vaccines, such as those being developed by Pfizer and Moderna, are synthetic vaccines, sequenced on a computer in a lab, and do not use fetal cell lines in their production.”

            The Moderna vaccine has been approved in the UK, but I’ve not heard it is being delivered yet.

            I believe the Johnson & Johnson vaccine uses a similar manufacturing process to the AstraZeneca vaccine, which uses cells to create the vaccine, but again no cells are left in the vaccine that is delivered to patients. For example,
            In any event, the Johnson & Johnson vaccine has not been approved for use in the UK yet.

  7. Discrimination could be said to have two meanings. There is the one employed in your article and the one commonly understood as being “discriminated against”:that is an action that works against someone who has been placed into an already existing category such that the discrimination negatively impacts what is a pre existing societal disadvantage. I think it might be fear of the latter that has moved people to question the possibility of passports being discriminatory. The other aspect of a passport is that it will necessitate collection of associated data and there is a live question concerning the capture, use and possible onward sale of that data.

  8. Surely, the issue in this case is that certification, with respect to the vaccination status of the individual, is intended to coerce them into being vaccinated (since their freedom of action without said certificate would be restricted in some yet unspecified ways). It is therefore an issue of curtailing the right to freedom of choice, by tipping the balance in favour of what the state wants. If the state wants all to be vaccinated, it could make such action mandatory in law, with only a few grounds for permissible refusal. It chooses not to do so, but (it would seem) prefers to use a certification scheme as a coercive tool. As a libertarian, I am not to keen on this. As a responsible citizen, whilst I have no particular fear of catching the illness myself, I feel it is my responsibility to get vaccinated to protect other, more vulnerable people. That, is a different argument!

    1. I’m unclear how in practical terms you make vaccination compulsory without ending up with something like the forced feeding of hunger strikers.

    2. I don’t think I would use the word ‘coerce’. It will remain a free choice, but the reality is that there will soon be lots of ways in which life will become easier for those who have been vaccinated and can produce evidence that they have. And if there isn’t an official certificate produced by the government, then various other parties are likely to produce unofficial versions with varying degrees of credibility.
      I suspect this issue will become less controversial once everyone has had the opportunity to be vaccinated. At the moment it can be portrayed as discriminating against younger people who haven’t yet had that opportunity. There will still remain the problem of those who have been advised against it on medical grounds, however, but the others who have been offered it but declined will attract less sympathy.

  9. Thank you, David. Your article was very welcome as a balanced contribution considering different sides of the debate. We need more of that in the public forum.

    My concern is where the principle meets the practice – what happens what a seemingly rational basis on which to discriminate is actually employed to tell sheep from goats. Who does it affect and how?

    To date, there are substantial differences in the take up of vaccinations, principally by reference to age as some can get it and some can’t, but also socio-economic group, ethnicity, and mental illness or learning disability.

    We need to think quite hard before we introduce a “pass law” that bakes in those existing differences, by requiring some sort of official certification or badge to undertake such basic actions as visiting certain public venues or getting a job, or at least permits others to discriminate between people on that basis.

  10. It seems to me that vaccine passports would not be worthwhile. They would undoubtably cost a great deal to implement, but are likely to be of very limited use. Within the UK, we expect that later this year almost everyone will be vaccinated. At that point there is no need for you to check someone’s status as even if they are not vaccinated, there will be so few other unvaccinated people that they have nobody to catch the disease from and are therefore very unlikely to have it as pass it on to you. And that would only be a worry anyway if you too were unvaccinated. The only people who will be significantly dangerous are those who have come from abroad where there are many active cases – bit that can be solved by border checks – not the checks envisaged by many people which would be at individual pubs, restaurants etc.

    It’s just not worth the expense and bureaucracy to make a small difference for a short time.

  11. ‘But the purpose of the piece is not to urge any ultimate position, but to set out the most relevant considerations either way’
    Right up my street and thanks DAG

    Full comment on FT

  12. Most of the objections to a vaccine certificate avoid the basic question. Is it reasonable to make life difficult for those who go against the public good on such a critical issue? Does anyone really think that this is some normal discussion about say, the pros and cons of photo ID?
    We have the opportunity to severely curtail a pandemic which has caused untold emotional, physical and financial harm. Scientist worry that continued infectious could mutate into worse versions. Those who willfully refuse a vaccine for other than sound medical reasons are putting everyone at risk. None of us should be obliged to work with or share space then unless they are willing to go through rigorous and continuous precautions at their own expense.
    Is that “unfair”. Maybe? Will it hit certain communities harder? Maybe. Will most people quickly conclude that taking the vaccine is preferable? Yes.
    That is the nature of “greater good” and public interest. It is absolutely right to worry about abuse but this is surely one can where we can be certain that no such abuse exists.

  13. This an great post, and as ever provides focus on a neglected aspect of the debate.

    I do take a position on vaccine passports. Which is that I’m highly skeptical not only of the ability of the state or organisations to implement them, but also that they will deliver the intended benefits. And I write that as someone who passionately believes that vaccination programmes save lives. And who has a professional interest in vaccine production.

    If the main purpose of vaccine passports is to increase uptake, then it is coercive. As such, it is imperative that the government should consider other, less coercive measures first. They should also be careful to ensure that coercive measures are actually effective in their aims. That is not clear, and there are lots of reasons to think that the government can do more to persuade and facilitate access to vaccines before considering such measures. It may even be counterproductive by actively disuading people who are undecided, forcing them into a moral rather than risk-informed decision. Good engagement with ethicists and behavioural scientists is essential to that end.

    I think we also have to consider whether we actively delegitimise the idea of refusing informed medical consent. We often sacrifice freedoms during crises, but we should consider that cost in the short and long term.

    However, if the primary aim of vaccine passports is to try to restrict access to public spaces and services based on the risk of transmission by unvaccinated individuals, then it is also problematic.

    When is the right to initiate such a scheme? When vaccination levels are low? But that also means that a lot of people not prone to serious symptoms will suffer restrictions, despite not having been offered the vaccine because they don’t yet qualify. We would necessarily be extending additional freedoms to those who will still remain most at risk of serious disease.

    It also risks fomenting discontent if other elements of the COVID response are insufficient, whether that is vaccine availability or the testing and tracing scheme. And if the vaccine scheme can’t keep pace with the demand generated, then that will be a disaster.

    Should passports be introduced when vaccination levels increase? In which case it is going to impact large numbers of people who medically cannot receive the vaccine versus potentially small numbers refusing for other reasons. We will be excluding large numbers of people from participating in normal society in order to protect them. At the same time, because transmission should be reduced as vaccination rates increase, we will be increasingly excluding them from participation them as the overall risk falls.

    If we exempt them on the grounds of fairness, then we effectively undermine arguments around shielding them and protecting lower risk groups. They will be vectors for transmission and also vulnerable to the disease.

    Vaccine passports for participation in UK domestic life run the risk of being unfair and ineffective, as well as breaking a moral boundary around coercion and consent.

  14. Certificates can actually help even things up, if there is equality of access to them. And preferably if they are actual pieces of paper.

    “Identity discrimination” is mainly known in poorer countries. It consists of people being unable to assert their rights – social assistance, voting – because they don’t have the right pieces of paper. Often it starts because they were born remote from a birth registry, and have no birth certificate. And once you haven’t got one of those you can’t get identity papers. It can be fixed, but only for sums of money that many do not have.

    Britain has a greater level of identity discrimination than our neighbours, because we don’t have a system of identity documents equally available to all. When you have to prove your identity, you have to produce from a list of documents, many of which you won’t have unless you are a householder, pay bills, own a car, etc. Some people complain that an identity system would lead to Big Brother. A cursory examination of our neighbours might suggest that what it might actually lead to is less social exclusion.

    My suspicion is that a system of vaccine certificates might actually help in that way also.

    But one recent curiosity of British certificates is that they are less often pieces of paper. Your vehicle tax disc is now virtual. Your EU settled status sits in a government database. Now you can’t produce a piece of paper to prove these things if required. All you can do is make application to a bureaucrat to verify it, at risk of a computer saying “no”.

    1. Interesting point. Living something similar transitioning countries but had never thought of it in this way

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