Whether or not the State has the right to demand you take the Coronavirus vaccination, or any other vaccination compulsory for that matter, is one of the most contentious subjects of our times. And it is not only ‘anti-vaxxers’ who are troubled by some Governments across the world stating that citizens will be excluded from employment, social activities, and other aspects of society if they do not consent to the jab. Many of those who had no objections to voluntarily getting vaccinated baulk at the idea of being told what they can and cannot do with their own bodies.
It is important to qualify that few countries are going as far as to make vaccination a condition on being able to participate fully in society. And even fewer are making inoculation against Coronavirus mandatory. However, many States are demanding that care home and healthcare workers get their vaccination by a certain date. Others are stating that being vaccinated is a prerequisite for travel in and out of the country. And some are going even further, making vaccination mandatory for all public service workers. A good roundup of the current situation can be found here.
Why are some countries making the Coronavirus vaccination mandatory and others not?
Compulsory vaccination against a devastating disease is not new. In 1853, the British Government told its citizens that by the age of three months, all children had to be inoculated against smallpox. Refusal could result in a fine of £1, equivalent to around £130 today. Given that the average weekly wage at the time was 9s 31/2d, issuing a fine of £1 shows the commitment of the British Government to wiping out a disease that in the 19th Century killed 1 in 13 Londoners, most of whom were children.
According to The Economist, bringing in policies around compulsory vaccination in democratic nations will not be easy.
“Vaccine mandates, even of those with full approval, could still face legal and ethical challenges. Compulsion risks fuelling “anti-vax” sentiment, undermining other inoculation programmes. Punishing non-compliance usually hits poorer and migrant families hardest. Although opinion varies greatly—a survey in January by Ipsos, a pollster, found that 77% of Mexicans and 68% of Brazilians supported mandatory vaccinations for covid-19, compared with 37% of French people and 39% of Germans—democracies would struggle to force needles into arms.”
The legal and ethical arguments against compulsory Coronavirus vaccination
At the time of writing, the World Health Organisation has not given its support to compulsory Covid vaccination. It states that mandatory vaccination must be “necessary and proportionate” in the achievement of “important public-health goals.”
For countries signed up to the European Convention on Human Rights (ECHR), of which the UK is one, the most likely challenge to any vaccination mandate is that it interferes with art.8 which protects private and family life. The right to bodily integrity is also enshrined in the Universal Declaration of Human Rights.
Many countries, including Britain, have made it obligatory for care home staff and health workers to get vaccinated. This issue is the focus of challenges to compulsory vaccination trickling into the European Court of Human Rights.
The aforementioned Court recently published a press release stating that it would not grant interim measures to suspend the compulsory vaccination of health professionals in Greece. The case has been brought before the Strasbourg Court by 30 health professionals who work independently or in public health institutions. The Applicants argue that the provisions of section 206 of Law no. 4820/2021 which imposes compulsory vaccination of health-sector professionals against Covid-19 as a condition for being able to continue exercising their occupation are in breach of ECHR articles 2 (right to life), 3 (prohibition of inhuman or degrading treatment), 4 (prohibition of slavery and forced labour), 5 (right to liberty and security), 6 (right to a fair hearing), 8 (right to respect for private and family life) and 14 (prohibition of discrimination).
No reason was given for the Court’s decision. However, the pre-Covid case of Vavřička and Others v the Czech Republic provides a guide to how the European Court of Human Rights may treat the Greek case and others along the same vein. The Applicants in Vavřička challenged the Czech Republic’s requirement that all children must be vaccinated against certain diseases if they wished to attend pre-school. Fines can also be issued for non-compliance.
In making its decision that although making vaccinations compulsory interfered with private life such interference was justifiable, the Strasbourg Court considered the Court of Appeal’s decision in (Re H (A Child)(Parental Responsibility: Vaccination),  EWCA Civ 664), the judgment of the Court of Appeal of 22 May 2020 which held:
- “(i) Although vaccinations are not compulsory, the scientific evidence now clearly establishes that it is in the best medical interests of children to be vaccinated in accordance with Public Health England’s guidance unless there is a specific contra‑indication in an individual case.
- (ii) Under [the applicable statutory provision] a local authority with a care order can arrange and consent to a child in its care being vaccinated where it is satisfied that it is in the best interests of that individual child, notwithstanding the objections of parents.
- (iii) The administration of standard or routine vaccinations cannot be regarded as being a ‘serious’ or ‘grave’ matter. Except where there are significant features which suggest that, unusually, it may not be in the best interests of a child to be vaccinated, it is neither necessary nor appropriate for a local authority to refer the matter to the High Court in every case where a parent opposes the proposed vaccination of their child. To do so involves the expenditure of scarce time and resources by the local authority, the unnecessary instruction of expert medical evidence and the use of High Court time which could be better spent dealing with one of the urgent and serious matters which are always awaiting determination in the Family Division.
- (iv) Parental views regarding immunisation must always be taken into account but the matter is not to be determined by the strength of the parental view unless the view has a real bearing on the child’s welfare.”
Is compulsory vaccination in the UK inevitable?
Given the threat to the NHS, the ageing population (Coronavirus is more deadly to the elderly), and the catastrophic economic costs of lockdowns, insisting that everyone who can be vaccinated gets jabbed seems reasonable. However, international and domestic law does provide for the right to bodily autonomy. And although art.8 rights are not absolute, the right of the State to enforce vaccinations must be proportionate. There is also the question of the degree of compulsion. No one is expecting the British Government to start holding people down to ensure a needle gets into everyone’s arm. Furthermore, exceptionally high fines or imprisonment would not be acceptable to the British public. However, the suspension of health professionals who refuse the vaccine is likely to be seen as a proportionate response.
There is no simple answer to the question of whether vaccinations should be compulsory, and much will depend on individual countries’ international human rights commitments and political and social structure.
For the time being, it seems the UK is being fairly cautious in its approach.
Reeds Solicitors is a leading criminal defence, family law, prison law, and mental health firm in England and Wales. You can reach us through our contact page here.
 The Health Secretary Sajid Javid confirmed in November 2021 that all NHS staff must be vaccinated by April 2022 or else face dismissal.