The Government’s Pretence That it Can Do nothing to Stop Employers Insisting on Vaccine Passports is Utter Hogwash

There follows a guest post by Dr David McGrogan, an Associate Professor of Law at Northumbria Law School. He is unconvinced by the Government’s claims that it can do nothing to stop employers introducing ‘No Jab, No Job’ policies.

It is still as clear as mud what form vaccine passports might take and where they will be required. Will employers be able to require employees to be vaccinated in order to come back to the office? Will pub owners be required to ask customers to ‘scan in’ at the entrance? Nobody quite knows.

What is for sure is that the Government’s position, as ever, is one of naked dissembling. Since March 23rd last year Government ministers have used their purported powers under the Public Health (Control of Disease) Act 1984 to force businesses to close, to require the wearing of face masks in shops or public transport, to prevent people ‘mingling’, and much more besides. The scale of the interventions have been hitherto unimaginable. Yet when it comes to vaccine passports, all of a sudden the Government has discovered that we are best left to our own devices after all. It “believes that introducing a ban on [vaccine passports] would in most cases be an unjustified intrusion on how businesses choose to make their premises safe”, we’re told by a spokesman. Another source says the Government is “resigned” to the fact that employers will bar people who have not been vaccinated, and that it would not “legally be able to stop employees demanding [vaccination] as a condition of employment”. That’s right: it would be wrong – an unjustified intrusion, indeed! – to ban employers from requiring their employees to be vaccinated, or pub or restaurant owners from demanding it of customers. Moreover, it wouldn’t “legally” be possible at all. One imagines the members of the Cabinet sitting sadly and shrugging their shoulders “resignedly” at the prospect – they’d like to make vaccine passports unlawful, they really would, but what is an authoritarian Government with almost unlimited power to do?

Leaving aside the truly Orwellian warping of language here (it is apparently banning vaccine passports which would be the unjustifiable intrusion, rather than requiring their use!), this is utter hogwash. It is perfectly within the Government’s power to introduce legislation to the Commons banning employers from requiring employees to be vaccinated any time it chooses. Nothing would prevent it from doing so as a matter of legal principle (under our constitutional arrangements Parliament can create whatever legislation it wishes), and with its huge majority it would have no problem whatsoever having such a statute passed. And the Equality Act 2010 already makes it unlawful for shops, pubs, restaurants, etc. to discriminate on a number of grounds. The Act could be amended to include “vaccination status” as one of its protected characteristics, alongside disability, race, age, and so on, and that would be that.

If the Government intends to have vaccine passports becoming part of our ordinary daily lives it should have the guts to admit it, rather than spew this mealy-mouthed nonsense about not wanting to “intrude” in how businesses are run.

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