Regulating the use of COVID passports in the UK: the need for primary legislation

Talk of ‘COVID passports’ as a means of proving a person’s vaccination status has increased in recent weeks. Ronan Cormacain argues that rule of law concerns necessitate that COVID passports must be created and regulated by primary legislation, which must be given time for proper parliamentary scrutiny. They should not be brought about by secondary legislation, as has been the case with a significant amount of pandemic-related legislation.

The so-called COVID passport is a way of ‘proving’ a person’s COVID status. This blogpost makes three arguments. Firstly, that the use of COVID passports ought to be regulated, secondly that that regulation ought to be by way of legislation, and thirdly that that legislation needs to be an Act of Parliament.

There are many forms such a passport could take: digital or non-digital, domestic only or international, relating to the presence of COVID antibodies or vaccination status, etc. Furthermore, there are many important questions around the content of such a law: the justification of requiring a passport, scope, international recognition, protections, necessity and proportionality, time limits on regulation, etc. This post does not address any of these questions, focusing not on the detail of any law regulating them, instead simply arguing that there should be a law regulating the matter in the UK.

Autonomous moral actors in an unregulated market, or heteronomous rules imposed upon a regulated market

John Locke’s almost mythical conception of a pre-Commonwealth era was of autonomous individuals perfectly free to make their own moral choices. There were no externally imposed rules, and we were all individuals with complete power to determine our own actions. Or as Locke put it: ‘a state of perfect freedom to order their actions, and dispose of their possessions and persons as they think fit, within the bounds of the law of Nature, without asking leave or depending upon the will of any other [person]’.

At the time of writing, COVID passports, or more specifically, the right to treat a person in a particular way depending upon whether or not they have a COVID passport, occupies a near Lockean regulation-free space. There is no rule that a publican may refuse entry to a person without a passport, but nor is there a law that specifically prohibits him from doing so. There is no rule that a health worker must only be employed if they have a passport, but nor is there a specific protection for those who don’t have one. Aside from the regulation of travellers to England, Scotland, Wales and Northern Ireland (who must be in possession of a negative COVID test result), this is a law-free zone.

This lack of law is not acceptable for many reasons. Firstly, there is the lack of legal certainty that the rule of law demands. This was Lon Fuller’s very first example of a failure to make law,

‘the first and most obvious lies in a failure to achieve rules at all, so that every issue must be decided on an ad hoc basis.’

If the citizen does not know the legal consequence of an action, the state is failing in its rule of law obligation to have fixed and certain laws. Although it may provide work for employment lawyers, it is bad for both employers and employees if there is no simple and easily accessible answer to the question – can I be fired for a refusal to have or produce a COVID passport?

Secondly, there is the importance of the subject matter. COVID is the single biggest immediate threat facing the country. We don’t need a law regulating yo-yos, because such toys aren’t that important. But the day-to-day effects of COVID and the use of COVID passports are of vital social importance, and society needs an answer.

The argument in favour of regulation is not a new one. Lord Mansfield in Vallejo v Wheeler (1774) 1 Cowp 143, said that

‘The great object should be certainty; and therefore, it is of more consequence that a rule should be certain than whether the rule is established one way or the other.’

This mirrors the Commonwealth that Locke called for – a community coming together to live in society with each other and agreeing the rules by which that society is to be bound. We still have a certain amount of autonomy, but we subject ourselves to heteronomous rules, agreed to by us all collectively. So instead of countless individual arguments over whether service can be denied due to lack of a vaccine, there should at least be a clear set of rules setting out whether or not COVID passports can be mandated.

Without clear and enforced rules, there is chaos and it becomes impossible to plan a course of action. It also undermines the chances of a properly coordinated public health response if everyone is free to do whatever they want in response to the pandemic.

Legislation as the best source of rules on COVID passports

If there are to be heteronomous rules on COVID passports, then it is my contention that the best source of those rules is legislation. The alternative to legislation is the common law incrementally building up a corpus of law on the use of COVID passports. Or as Jeremy Bentham perhaps unkindly characterised the common law in Legislator of the World:

‘As if from a rubbish-cart, a continually increasing and ever shapeless mass of law is from time to time shot down upon the heads of the people, and out of this rubbish, and at his peril, is each man left to pick out what belongs to him.’

I have previously advanced four reasons why legislation is a better source of rules than the common law and I summarise those reasons here.

Firstly, legislation is a systematic attempt to regulate a particular subject in a comprehensive way. A single court case may decide a particular point, but legislation will cover all aspects of the law on COVID passports in a holistic way.

Secondly, legislation is law resulting from what is usually a deliberate, slow process aimed solely at making law. The purpose of a single court case is to do justice to the parties to that case, the side-effect sometimes being finding, interpreting or making the law. But with legislation the sole point is to make that law.

Thirdly, legislation is the outcome of many voices arguing, debating and compromising to reach the end result, a much broader range of voices than the parties and judges in a particular case. As Neil Duxbury has argued, legislatures ‘tend to make better informed and more intelligent decisions than do courts’. A case on COVID passports brought by a cinema will include that cinema and perhaps an industry representative. The legislative process will include an open consultation process whereby all voices can at least make their arguments, and a transparent process whereby those arguments can be heard and weighed up in a legislative assembly.

Fourthly, the courts do not have the democratic legitimacy that legislators have when it comes to making law. As former Lord of Appeal Lord Reid once said, ‘Parliament is the right place to settle issues which the ordinary man regards as controversial’.

This is not to say there is no role for the courts in applying and interpreting any legislation on this point, and in particular in ensuring that fundamental liberties are not swept away lightly in the content of any legislation.

As an example of what legislation can do on this subject, see the draft Coronavirus (Safeguards) Bill 2020 proposed by a team of experts led by Lilian Edwards. The content of this bill is open to debate, but its mere existence shows that legislation can provide some answers, along with the safeguards, that the public needs. At an earlier stage in the pandemic, there was a similar call for legislation by Nyasha Weinberg regarding test and trace digital apps: ‘it is essential that the processing of large amounts of personal data by the state, even if done in the public interest, needs a clear legal basis in the form of specific legislation.’

Primary not secondary legislation

Research by the Hansard Society shows that as of 5 May 2021, there have been 425 coronavirus-related statutory instruments laid before the Westminster parliament alone, not counting coronavirus delegated legislation laid before Senedd Cymru, the Scottish Parliament or the Northern Ireland Assembly. As previously argued by the Constitution Unit, the Hansard Society, the Bingham Centre and the Public Law Project, this reliance upon secondary legislation has had the effect of sidelining parliament. Secondary legislation may allow for a quick legislative response, but it doesn’t allow for a considered legislative response.

All too often, secondary legislation is merely rubber-stamped by parliament, in the case of ‘emergency legislation’ this is often weeks after it has come into force. There is a binary choice for parliament to either accept it in its entirety, or reject it in its entirety. This does not allow for any political or parliamentary nuance, any meaningful debate, or any opportunity to fully engage with the detail of secondary legislation. This the same criticism that Fiona de Londras made in her analysis of the yes/no motions to extend the Coronavirus Act 2020 itself.

With primary legislation, parliamentarians can propose amendments, debate clauses line by line, wring concessions out of government, and advance alternatives. In theory at least, it is a deliberately long and sober process with multiple stages, allowing for multiple voices and nuanced solutions. It may not be perfect, but it is at least more transparent, with much greater opportunity for meaningful democratic engagement. With secondary legislation, there is a black box of internal departmental debate out of which springs a statutory instrument, fully formed. With primary legislation, there is the tiresome, but also democratically energising process of debate, justification, thesis, antithesis and eventual synthesis necessary for a bill to pass.

Given that health is a devolved matter in the UK, and that each devolved jurisdiction has taken slightly different decisions on how to regulate the pandemic, there is an open question as to whether COVID passports are best treated on a UK wide basis, or whether there should be separate regulation for each jurisdiction. An Act of (the Westminster) parliament is an option and constitutionally sound if it is preceded by the appropriate legislative consent motions in Northern Ireland, Scotland and Wales. Separate Acts for each jurisdiction is an equally valid approach and will give rise to more localised law-making, albeit with a loss of uniformity across the UK.

Conclusion

This post has not delved into the substantive arguments about the content of any eventual law on COVID passports. It has instead addressed the stage prior to all this. Heteronomous rules are required – rules that have been generally agreed by society in advance to regulate the use of COVID passports, rather than a regulatory free-for-all. Those rules should be the product of a deliberate and thoughtful process of making legislation. That ought not to be secondary legislation enacted with minimal debate and democratic oversight. Instead it should be enacted by way of primary legislation with full parliamentary scrutiny, debate and legitimacy. This gives us the best chance of getting it right and ensuring legislation which best complies with the rule of law.

This is the latest in a series of Unit posts about the continuing effects of COVID-19 on the constitution. For other blogs in the series see here.

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About the author

Dr Ronan Cormacain is a Senior Research Fellow at the Bingham Centre for the Rule of Law. He is leading the Rule of Law Monitoring of Legislation Project.