COVID-19: Liberty of Conscience and the Law

On 21 May 2020, at the No. 10 Downing Street press briefing, a member of the public (Finlay from Ardrossan) asked: “If a vaccine is developed, will it be mandatory? If not, how will you bridge the difference in opinion between those who believe it necessary and those who do not?”¹ In essence, this was a profound question as the UK was emerging out of the first lockdown. The reply from the Honourable Matt Hancock MP, Secretary of State for Health and Social Care, was inconclusive. He said: “The question of whether it’s mandatory ias not one we have addressed yet.”² However, Professor John Newton, a British epidemiologist and Public Health expert, responded that “vaccine programmes are more successful by consent”,³ and this echoed Lord Donaldson’s dictum: “An adult patient who . . . suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment. . . . This right of choice is not limited to decisions which others might regard as sensible.”⁴ And this includes vaccination.

A year on, and, in the process of coming out of the third lockdown, the UK now has vaccines being rolled out and approximately over 20 million people inoculated. However, Finlay’s question has yet to be fully addressed. There are currently British companies that are seriously considering ‘no jab, no job’ contracts to require new and existing staff to vaccinate. However, other sectors express concern that such measures may lead to implications in the short and long term on employment law.

UK COVID-19 ‘Status Certificate’ Review in Context.

Nadhim Zahawi, the Vaccine Minister, initially warned that the use of domestic vaccine passports would be wrong and ‘discriminatory’. Subsequently, however, he acknowledged that some “companies might press ahead with their own schemes”.⁵ The Prime Minister, Boris Johnson, expressed reservations about introducing domestic passports, arguing that the idea raised “moral and legal issues”:⁶ but then he seemed to change his mind, citing the international community of nations that had already embraced the idea, but also at the domestic level he believed that “COVID-19 Status Certificates”⁷ could enable the kick-starting of business. However, some government ministers were deeply uneasy that such documents could “lead to discrimination against people who cannot, or will not, receive the COVID-19 jab . . . a prospect that may end up being tested in courts”.⁸ Boris Johnson acknowledges there are “deep and complex” issues⁹ with using vaccine passports or certificates to attest an individual’s COVID-19 status. Hence the Prime Minister has appointed the Cabinet Office Minister, Michael Gove, to lead the review over the matter.

Legal Implications
Barrister Louise Hooper of Garden Court Chambers observes, “It is clear that mandatory medical treatment and vaccination are explicitly prohibited by the Act [Coronavirus Act 2020].”¹⁰ To compel someone in the UK to be vaccinated would require a change in the law (primary legislation). It is worth noting that Louise Hooper adds: “There is, however, potential for abuse to infringement of civil liberties and human rights unless the powers contained in the Coronavirus Act are exercised lawfully.”¹¹ On the other hand, an individual’s human rights may be curtailed through regulatory powers¹² given to the Secretary of State to deal with an emergency for the shortest time possible: for example, an order to self-isolate, etc. In such circumstances, the exercise of such powers must be “reasonable, proportionate and necessary”.

Bridging the Difference
The ethical dilemma surrounding the COVID-19 vaccination issue is this: on one hand, going unvaccinated exposes others to risk, and this violates their rights. And, on the other hand, the curtailment of one’s principle of consent inevitably infringes on their liberty of conscience. The answer is not a simple one. It demands that a delicate balance be struck between the two competing interests in the face of an ongoing and ever-evolving COVID-19 pandemic. Hence Finlay’s implied axiom, “Bridge the difference in opinion,” must not be lost sight of. The balancing of the two competing interests in vaccination acceptance or refusal is crucial. Use the skills of persuasion, and not draconian measures for both sides to comply, to minimise the ‘disadvantage’ – in this case, the spread of infection and subsequent deaths. The means used to achieve the goal must not be only one-sided: for, if challenged in the courts, it will be for the service provider or employer to justify its practice. The question of whether the implementation provides a proportionate means of achieving a legitimate aim may be approached by the courts in two stages:¹³

Is the aim of the practice or measure taken legal and non-discriminatory, and one that represents a real, objective consideration?

If the aim is legitimate, is the means of achieving it proportionate – that is, appropriate, reasonable and necessary in the circumstances?

Conclusion
We are living in challenging times, albeit couched with opportunities to witness for God. Let us seize these moments during the COVID-19 pandemic pandemonium to “courteously and respectfully”¹⁴ endeavour “to preserve liberty of conscience”¹⁵ and thus be agents of change to “bridge the difference”.

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^{1 https://www.youtube.com/watch?v=WE6aDXWUy7s
2 Ibid.
3 Ibid.
4 Court of Appeal, Civil Division – Lord Donaldson, Re T (Adult) [1992]
4 All ER 649 at 653
5 Financial Times, 16 February 2021
6 Ibid.
7 Evening Standard, 22 February 2021
8 Financial Times, 16 February 2021
9 Evening Standard, 22 February 2021
10 Barrister Louise Hooper, “Coronavirus Act 2020: Does It Permit
Mandatory Vaccinations?” Friday, 1 May, 2020
11 Ibid.
12 Health Protection (Coronavirus) Regulations 2020
13 Equality Act 2020 Code of Practice – Services, Public Functions And
Associations
14 1 Peter 3:15
15 Testimonies for the Church, Vol. 5, pp. 713, 714}