Vaccine Passports Make a Mockery of Free and Informed Consent

6 March 2021  /  Updated 7 March 2021

I once read a children’s story about a princess who wanted to write a book. Unfortunately, she couldn’t write, and sales were disappointingly low. The king then announced (I quote from memory):

that the people must have their choice. And so he issued a proclamation which gave all citizens a choice of:

a) Buying a copy of the princess’ book
Or
b) Going to prison for one year.

Sales boomed.

Buying a bad book and receiving a vaccination are different things, and prison has not yet been proposed for those who do not receive a COVID-19 vaccine. But that children’s story wittily makes the point that any tyranny could be justified by a certain definition of ‘choice’, and I recalled it when I read Guy de la Bédoyère’s recent article on this site:

I’ll lay my cards on the table. I am going to be vaccinated as soon as I can. That is my choice, and I am glad that it is my choice.

I accept for example that in order to protect other people I needed to learn to drive and to have a driving licence to prove it. Similarly, I accept the normal passport as a means of proving who I am and protecting me and everyone else from maniacs and others not entitled to come to this country. I also accept that there are consequences of making choices. If I choose not to have a driving licence, then I would have to accept I cannot drive on a public road. And I doubt if anyone would want me to. If I chose freely not to have a passport then I would not be allowed to travel. So, I have no problem with the notion of vaccine choice as another facet of choice with consequences. I grew up at a time when large numbers of children had polio, a disease that gradually dwindled away as a result of the vaccine program.

That is all about freedom of choice…

Here I attempt to lay out the basic case against the ‘vaccination certificates’ currently suggested, by various people, for everything from international travel to shopping. These proposals differ qualitatively as well as in degree.

Not a driving licence

Justifying comparisons along the lines of driving licences or hard hats do not resolve the issue, because there is a qualitative difference: this is not a proficiency test or a piece of clothing, it is a medical procedure.

That medical procedures require the explicit and free consent of the individual concerned, is accepted by legal authorities and international bodies. The National Health Service website clarifies British law:

“a person must give permission before they receive any type of medical treatment, test or examination”. Such consent must be voluntary, meaning “the decision to either consent or not to consent to treatment must be made by the person, and must not be influenced by pressure from medical staff, friends or family”.

The European Convention on Human Rights, Article 2, protects a right to private life: “1. Everyone has the right to respect for his private and family life, his home and his correspondence.”

It has been argued, and apparently assumed in ECHR judgements, that this encompasses “the right to be free from non-consensual medical treatment or examination”.

The Council of Europe (Resolution 2361, January 27th 2021), in a resolution mainly concerned with ensuring high take-up of COVID-19 vaccines, also declared that Member States should:

7.3.1. ensure that citizens are informed that the vaccination is NOT mandatory and that no one is politically, socially, or otherwise pressured to get themselves vaccinated, if they do not wish to do so themselves;

7.3.2. ensure that no one is discriminated against for not having been vaccinated, due to possible health risks or not wanting to be vaccinated;

(and also)

7.1.5. …[should] put in place independent vaccine compensation programmes to ensure compensation for undue damage and harm resulting from vaccination

The Council of Europe is not (of course) the EU, but the international body of 47 states of which the European Court of Human Rights, which enforces the European Convention on Human Rights, is part. Great Britain is a signatory to the ECHR and a member of the Council of Europe.

The United Nations Conventions on the Rights of Persons with Disabilities, Art.25(d) states that “health professionals [must] provide care of the same quality to persons with disabilities as to others, including on the basis of free and informed consent”, which assumes that free consent is a right of people in general.

The Nuremberg code is not directly applicable, since it specifies medical experimentation rather than treatment.

Exceptions exist when a person lacks the mental capacity to consent to treatment. These carefully-limited conditions do not, as far as I know, include refusal of treatment as itself demonstrating incapacity.

Medical treatment, being an intervention in a person’s body, her very self, must be freely consented to. And all the conventions, principles and laws that prioritise consent assume that consent must be free: which means there must not be threats made in case of refusal; there must not be overbearing levels of persuasion, or emotional blackmail. The National Health Service’s current emphasis is that there must be no pressure from friends or family. It does not mention Government or an employer, presumably because hitherto it would not have occurred to anyone that that needed to be said.

Sometimes, as with Guy de la Bédoyère, the justifying notion of ‘choice with consequences’ is invoked. Well, yes. The consequence of not buying a bad book is that you don’t own a bad book. The consequence of not having a vaccine is that you do not have the immunity from, or alleviation of, a certain disease which that medical procedure offers. If you also go to prison for a year after not buying the bad book, or lose your job after not receiving a vaccine, that is the consequence of a choice made by a third party possessed of power.

‘Choose this treatment, or lose your job’ is a mockery of consent. Occasionally proponents of making COVID-19 vaccine compulsory for nurses, or care home staff, or plumbers suggest that it’s not coercion, just part of the choice to work in specific jobs.

This is disingenuous; it absurdly minimises what is at stake. Losing one’s job is loss of income, security, livelihood, perhaps the permanent loss of the specific profession one has trained for; and, particularly in the miserable economic climate created by lockdowns, there is no guarantee of just ‘getting another job’. To talk as though losing one’s job after not consenting to a medical procedure is like choosing the salad because you’re a vegetarian and the soup is chicken is beyond glib; it is sneeringly cruel.

And similarly with other measures. I am not debating the merits of any of the COVID-19 vaccines, nor the grounds on which people might refuse them. The point is fundamental: that medical procedures must be freely consented to is a truth that humanity has painfully learned. If you have been told that you cannot go to a supermarket, or a wedding, or a coffee shop, or a church unless you undergo this procedure there is no free consent.

Although international travel is, possibly, qualitatively different, the practical implications of that should not be brushed aside either. I’d like to make a plea here for non-holiday-makers who are not habitual ‘business travelers’, but whose careers will suffer if they cannot travel. Full disclosure: my example could apply to me. A scholar in the humanities may need to use library collections outside the UK. Her/his allocated research budget probably won’t cover multiple COVID-19 tests, possible last-minute schedule changes if s/he tests positive, or £1750 for ten days’ imprisonment (sorry, quarantine. It’s positively early modern, making people pay for their own detention – twice if they want decent food, see ‘The Stiglet’s’ report) if the destination gets red-listed. A university would probably not offer extra funding, as their general attitude seems to be: believe all Government measures are necessary and reasonable, and put off everything until this is over. Which, on experience to date, may mean well after funding times out, and probably less ‘over’ than mutated into a situation in which one can resume semi-normal travel as a reward for undergoing a new medical procedure.

The question of by whom such ‘choices’ are demanded is also presented in justification: the Government will leave your choice to receive medical treatment free, but it will also allow other institutions and individuals their free choice as to whether or not to serve you, or employ you, if you have not received it. This is fallacious. Freedom of choice about who to serve or employ is not deemed to be absolute: we do not allow institutions to freely decide that they will not serve or employ people based on their skin colour, for example. Therefore, if the state decides not to intervene when a plumbing company or a supermarket sacks or bans people based on which medical procedures they have undergone, it is making a judgement about the merits that particular thing. The state cannot claim it is simply keeping out of it and letting us all freely make our free choices.

Existing principles of the right to free consent also acknowledge that pressure or coercion need not come from the Government to be unjust. And the state ought to uphold our rights. The state has not only a duty not to wilfully kill you, but also to prohibit and deter anyone else from murdering you either.

Precedents

An obvious objection to insisting on free consent for COVID-19 vaccines is that there are precedents for requiring certain vaccinations in certain situations. A number of countries require a certificate of Yellow Fever vaccination as an entry requirement; doctors are required to receive vaccination against Hepatitis B.

Firstly, I suppose, we should not rule out the possibility that these measures aren’t right either; that when states, institutions and individuals accepted them, we justified for the sake of a good end an unjust means, the danger of whose precedent is now becoming apparent. I’m not going to argue that here, but an honest moral inquiry must do due diligence on all possibilities, regardless of the (non-)argument of association: if you disagree with this, you’d have to disagree with that, and no-one disagrees with that!

There are, however, arguably qualitative differences between these measures and possible COVID-19 ones.

Regarding Yellow Fever certificates, there is a difference between a medical procedure as condition for entering another country, and the same as condition for leaving your own country, and clearly a huge chasm between that and requiring a medical procedure for buying a pint of milk or (and who’s totally sure no bishop will do this?) going to church. NHS guidelines also advise that if certain ‘exemptions’ apply to you – you can still travel with an exemption letter. It would be nice to have it confirmed that this will also be the case with COVID-19 ‘vaccine passports’.

Regarding Hep-B, the case may not be clear-cut. As a recent Daily Telegraph article put it, “While there are no compulsory vaccines for healthcare staff in the UK, some are contractually obligated to get the hepatitis B jab and other vaccines, particularly if they work in high-risk settings.”

Perhaps there is some relevance in the fact that Yellow Fever is a considerable killer (the NHS estimates that one in four people who contract Yellow Fever develop severe symptoms, and about half of those (so, about 1/8) die. This is far higher than any estimated IFR for COVID-19. Hep-B is sometimes severe, though not fatal to adults, but can cause serious liver damage in children.

Specifics of the treatment

And so we arrive, after all, at some consideration of the specific treatment in question. This is a rabbit hole down which I don’t wish to dive – it’s really not my field. However, I briefly note one relevant, non-controversial fact: short-term trials of COVID-19 vaccines (Pfizer, Moderna and AstraZeneca) are complete, but long-term trials for efficacy (and safety) are ongoing.

This does not mean that they are likely to be unsafe (obvious problems would probably have been discovered during development and testing to date), nor that – on the basis of already-completed testing – they should not have been authorized for emergency use and made available to those who want them. But it does not seem justifiable to coerce medical treatments which are still officially being trialled. And yes, permitting ‘No Jab, No Job’, or ‘No Jab, No Essential Work-Trip’, or ‘No Jab, No Visit to Your Dying Parent’, is coercion.

Ethical objections

Finally, regarding COVID-19 vaccines specifically, there are various reasons why people cannot or prefer not to undergo the procedure, but some have ethical concerns about the drugs. And if vaccine certification proposals amount to coercion, for such ethical objectors, they violate freedom of belief.

I am not endorsing or debating these objections here, but I will try to state them exactly and fairly.

The ethical objection is: some people hold that it is wrong to develop a drug, or vaccine, using human tissue (here, the tissue used to develop cell lines used as cultures in creating vaccines) taken from a human being whose life was deliberately terminated, who did not give his/her consent, and furthermore whose homicide was held legal, and has never been censured or prosecuted by relevant authorities. Some such people further hold that there is no sufficient reason to exclude human foetuses from the category ‘living human being’; they therefore apply the general objection to vaccines which used tissue derived from deliberately aborted human foetuses.

The AstraZeneca (Oxford) vaccine used such tissues in its manufacture. The Pfizer/Biontech did not, but some of the testing used human foetal cell lines. The existing MMR vaccine is refused by some people on the same grounds (yes, completely separate from dubious claims regarding autism).

As I said, I do not attempt to pass judgement on these objections, but I note in passing that when schoolchildren were offered a flu vaccine last winter, parents were carefully informed that a non-porcine-derived alternative would be offered if required (by, for example, Islamic believers). As far as I am aware, no money or effort has been directed at producing a COVID-19 vaccine completely independent of aborted human-foetal tissue, and no alternative to the similar MMR-vaccine has ever been offered in Britain, although one is licensed in Japan.

The ‘moral’ argument goes against coercion

The final, knock-down of vaccine authoritarians is that it’s about other people. Never mind if you yourself are at very low risk from the disease, and might be more inconvenienced by the vaccine; you have no right to infect others.

As the Irreverend Podcast recently argued (in a welcome, because rare, diatribe against vaccine authoritarianism), this line actually draws attention to the superfluity of the vaccine-certifying enterprise: if the vaccine works, people who haven’t refused it will be protected, so by definition you’re only hurting yourself. I suppose the answer would be that the vaccine reduces susceptibility but does not eradicate it, so people need the cumulative protection of other people’s vaccinations.

But, crucially, this ‘selfishness’ argument tells against coercion. Offer moral persuasion all you like, but you can’t use it to justify compelled consent. For if the main reason to get vaccinated is to benefit other people, then if you compel vaccination (by making it a condition of livelihood or liberty), you are forcibly carrying out medical procedures for the benefit of someone other than the patient. And that is the very essence of medical abuse; preventing that kind of crime was the driving spirit of the Nuremberg Code.

If you accept the kind of thing Mary Wakefield has argued for, or Guy de la Bédoyère appears to accept, it is difficult to see how that differs in quality, rather than in degree, from other, more obviously unjust, practices. Why not make people’s rights dependent on contribution to blood banks (it wouldn’t really be blood ‘donation’)? I could write the case for it myself. Once you’ve accepted that, why not compulsory bone marrow donations? Compulsory sterilisations? Hell, what right have you got to deny your spare kidney to some other citizen who needs it?

Lockdown for life

Those who do not accept the necessity, justice and proportionality of lockdowns, and all their spawn, being imposed on the general population cannot logically accept (let alone propose) that we should impose lockdown on individuals for refusing to undergo a medical procedure demanded by the Government or anyone else with power over them. As we’ve been saying for the past 11 months, earning a living, or travelling, or going to the supermarket, or to the theatre, or to church are not extraordinarily privileges. They are our normal rights. They cannot be conditional on signing over possession of our bodies.

To adapt Mary Wakefield’s metaphor, in being lured to accept vaccine passports, we are being told “the only way out of this prison is in your convict smock up this dark tunnel I’ve dug” – by the very person who is swinging the keys to the front gate in one hand and holding the clothes we came in with tucked under his other arm.

So, lockdown sceptics: when the Lockdown of a Thousand Regulations appears to withdraw, leaving a wooden-horse-shaped Vaccine Passport on the beach as a proposal of unity, compromise and freedom – don’t for God’s sake wheel it into the city and start burning thanks offerings.

Run down to the beach with flame-throwers, and bloody well incinerate the ghastly beast.

Please.

The author is a post-doc in the arts at a Russell Group university.