Covid-Status Certification Contents

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2Concerns and uncertainty with Covid-status certifications

The science around Covid

29.There is no doubt that if a Covid-status certification system is to be introduced, there must be a clear scientific case for its introduction. This point was made to us by all our witnesses and is one that the Government has accepted. We found that, in order to demonstrate such a clear scientific case for introduction of such a system, there are four key issues to be considered: transmission of the virus; the effectiveness of vaccines (on symptomatic disease, hospitalisation, mortality, infection, and transmission); the implications of new variants; and the accuracy of testing.

Transmission

30.Professor Trisha Greenhalgh, Professor of Primary Care Health Sciences at the University of Oxford, explained that the transmission of the virus is “predominantly airborne” and that “indoor transmission is so much more common than outdoor transmission”.40 Professor Peter Openshaw, Professor of Experimental Medicine at Imperial College London, further explained that, in his opinion, transmission was coming both from the small particles that reach the lung and also larger particles that can be deposited in a person’s nose or eye.41 This is particularly the case in instances where people are speaking loudly close to other people’s faces as they are more likely to be in the jet of someone’s exhaled air.42 Asked how different environments affect transmission, Professor Greenhalgh told the Committee:

The first question is how fresh is the air that is being breathed. If it is stale air, and think about the kids in the classroom, of course if that air is fresh that is much less of a problem.

The second is, are you in the direct jet of somebody’s exhaled air or, as Professor Openshaw has said, the secretions. So if you could catch it on their exhalation. The third is what is the local incidence of disease. You could say that the same pub in 2018 was much less dangerous than it is in 2021 because the incidence of Covid is different. It is not just about the building… outdoor environments are much safer than indoors so the marquee with the sides rolled up is much safer than the indoor environment. Outdoors could be risky if someone is shouting directly in your face. That does happen. For example, Cheltenham races 2020 is probably the only major outdoor super spreader event, although people argue about that.

Going back indoors… unventilated spaces are the big danger. The basement club with the windows shut or possibly without any windows in the room. Another thing to take account of is the size of the space. Cars are really bad. If you look at the measured—I think one of the only places they have reliably cultured the virus from the air is in cars because they are such a small volume …

The other thing to think about is prolonged close contact. Spending two or three hours indoors compared to say popping into the corner shop for a pint of milk. It is going to be much worse. It is absolutely about the viral load of the person who is exhaling but it is also the longer that person is indoors and exhaling into stale air, the worse it is. Finally whether people are vocalising or not. In summary, the worst-case scenario is anywhere where you have a small unventilated space that people are in for a long time making a noise when they are close together.43

Vaccines

31.We asked Professor Openshaw and Professor Judith Breuer , Professor of Virology at University College London, about the effect of the vaccines on transmission and infection. Professor Openshaw told us he thought:

[I]t is remarkable that we now have a range of vaccines, eight licensed vaccines, all of which not only generate brilliant immune responses but also protect very well, generally, against the more severe end of diseases, perhaps because the virus requires a more systematic penetration in order to cause that very severe end of the range of disease. However, the vaccine response that is necessary to prevent viral replication in the moist mucosal surfaces is not necessarily very well induced by that type of immune triggering. Ideally, to get a really good immune response, the best way at the moment would be to have a mild infection and then be boosted by an intramuscular vaccine. That generally would give a very good response.44

32.Professor Breuer told us that:

There is good evidence that they do reduce transmission, we don’t know for how long. There is a very nice household study, and households are a good place to study transmission because you know when people are exposed. The problem with looking at it generally is that you do not know when they are exposed. If we do prospective studies in households, you know when the index case occurred and you know when they exposed the household. There is at least a 50% reduction in transmission under those circumstances and household transmission is thought to be the most extreme, it is where we would expect to see transmission. We do this with lots of different infections. Household transmission is definitely down by at least 50%.

If you look at some of the studies that are coming out in population terms, it is about 70% to as high as 90% in some studies where it is done at a population level, looking at care homes and things like that. They do not necessarily have exact exposure data. The vaccines do help. We know that the vaccines reduce viral loads and that is a very important part of transmission because the higher the viral load the more likely you are to transmit. We know that all the vaccines that we have looked at in this country reduce the amount of viral load. They are very effective.

One dose reportedly can reduce transmission by 20% to 30%. Vaccines are very effective at reducing transmission. The question I suppose is how much do you need to reduce transmission by in order to stop seeing circulation. Once you have no circulation then it doesn’t matter if a vaccine is slightly less effective because there is nothing to be effective against. We have lots of examples of vaccines that we use very successfully where they are not that great but because we have managed to get the transmission rates right down, it does not matter so much. I think the two vaccines, as they stand, are capable of really reducing transmission rates.45

33.On the effect of vaccines on the rate of transmission in different environments, Professor Greenhalgh told the Committee that the vaccine would reduce transmission across the board in different environments. As such, those areas such as indoor poorly ventilated venues where people are spending large amounts of time, remain the highest risk, albeit a reduced risk.46

34.The Committee are encouraged by the latest Public Health England Vaccine Surveillance Report that shows promising data for the effectiveness of both the Pfizer/BioNTech and Oxford/AstraZeneca vaccines. The Coronavirus dashboard also indicates that the overall take up rate of the vaccines is good, with the overall vaccine uptake in England at 61%% for the first dose and 43% for the second dose up to 8 June 2021, and Vaccine Surveillance Report further estimates as of 30 May 75.4% of the adult population had Covid antibodies from either infection or vaccination.47 However, we note that only the effectiveness of the vaccines against symptomatic disease and hospitalisation after one dose has a high level of confidence, which demonstrates that there is still a high level of uncertainty.48

Variants

35.We have seen that the impact of the Covid-19 pandemic in the UK and other countries around the world has been strongly affected by the emergence of new variants. As Professor Breuer explained to us:

For variants to arise the virus needs to be replicating. It needs to be reproducing itself. It needs to be infecting cells and making copies of itself. When it makes these copies during the course of normal infection, it will produce mistakes and those are known as mutations in the reading of the code, the genetic code. It is producing mistakes all the time. We have lots of variants occurring all the time, it is just that when it produces a mistake that gives the particular virus an advantage in the host it is in or in the host it then infects, it will then become fitter than other variants. That advantage could be an ease of spread, ease of transmission or just making more of itself, anything like that will give it an advantage. The key thing is that you need the virus to be replicating in order to get variants. If the virus is not spreading, you will not get variants.49

36.Professor Openshaw added to this explanation that:

The more global reproduction of the virus that is occurring, the more likely it is that variants will arise. That is one of the reasons to emphasise the message from the World Health Organisation that none of us is safe until all of us are safe. We must roll out vaccines globally in order to try to limit the amount of viral replication and therefore limit the rate at which new variants are emerging.50

Testing

37.Both Professor Breuer and Professor Openshaw said that testing was “fraught with difficulties”.51 When asked how long a test might be good for under a Covid-status certification system, Professor Openshaw told us:

It tells you what your status is at that moment. It does not necessarily tell you what your status is going to be in two, three or four days’ time. It is a balance between the practicalities of repeated testing and the amount of new information that you can gain … .Would I feel safe to sit next somebody on a flight if they had had a negative PCR test two days earlier? I think probably that would give me some reassurance. If it was a week earlier, a little bit of reassurance but not really very much because the time course for shedding is such that a week before is not really going to predict how much virus they are shedding at that time. A lateral flow test, a rapid test, the 30-minute test, done when you are about to board the aeroplane would give me some reassurance that at the moment they are probably not going to infect me. I would still wear a mask and wash my hands.52

38.Asked if knowing vaccination status or having a negative test result is a better, Professor Greenhalgh said that in her view one is not a substitute for the other. Ultimately, she said what would concern her is the local instances of Covid.

If it is absolutely ripping through the town I would not be going out of the house probably. I certainly would not be going indoors with other people, whether some of them had vaccination certificates or not. If Covid was ripping through the town what I would like is for people to be masked and vaccinated, and for the windows to be open, and for not spending very much time indoors.53

39.Professor Breuer added that:

it is all about probabilities and what is being said is basically we reduce the likelihood by having low transmission, you reduce the likelihood if there is high transmission by having masks, you reduce the likelihood of someone being positive and transmitting if they have a negative test. It stacks up. You can multiply them and the probabilities all reduce every intervention that you include.54

40.We also asked Professor Openshaw and Professor Breuer about the likelihood of herd immunity to Covid-19 in the UK. Professor Openshaw told us while it was technically possible, the new variants that have emerged have pushed up the percentage of the population that would need immunity from approximately 60% to closer to 80% to achieve this.55 Professor Breuer said that, in her opinion, herd immunity cannot be achieved when new variants are continually being introduced into a country, making it vitally important to “keep rates down everywhere and for respiratory viruses it is very hard to have herd immunity without restricting the import of variants for it to be universal”.56

The Government’s scientific case

41.The Minister told us that the scientific case is that the introduction of Covid-status certificates “can have a role to play in making venues safer… The scientific case would be that, if you have a group of people in a venue and the people in that venue you are confident have either had the disease or are vaccinated or have recently tested negative, the risk of a super-spreader event, the risk of transmission, diminishes”.57 When asked how the risk to individuals and the public is measured, the Minister told us:

There are a panoply of different ways in which we look at those risks. The different risks are the transmissibility of the virus and its variants; the extent to which people have acquired protection through vaccination or other means; and then the consequences if people were to be infected, either vaccinated or unvaccinated. Both the infection fatality rate, the likely hospitalisation rate and increasingly we have to take into account phenomena such as long Covid, which is a portmanteau term for a variety of conditions associated with people who have had the virus. We look at all of those.58

However, when asked what the thresholds for introducing a certificates system would be, the Minster could only tell us:

The judgment would be to what extent, given everything else that we are doing, would it enable life to return to as close to normal as possible in as many venues as possible? Again, it goes back to the point that we made earlier, there is inevitably a trade-off. There is a cost and there is a hassle factor, versus confidence about these venues being safer. It goes back to Lloyd [Russell-Moyle]’s point earlier that we can make some venues safer but it is a matter of judgment, on a spectrum …

… Two important points. The first is a judgment overall about whether or not certification is the right thing to do has to be taken against the incidence of the virus in the country, the prevalence of any particular variant and its transmissibility, set against protection overall, vaccination being the most effective of it.59

42.Dr Susan Hopkins was able to provide the Committee with the figures on the effectiveness of the vaccines against the original B.1.1.7 (the Alpha or “Kent”) variant, however, she was more cautious in regards to B.1.617.2 (the Delta or “Indian”) variant, saying that they do not currently have accurate measures of reduced transmission or measures of reductions in asymptomatic infection for the vaccines on that variant.60

43.The Minister told us that a list was being drawn up by the “COVID-19 Task Force, assisted by colleagues in Public Health England, the UK Health Protection Agency, the CMO and others” setting out the venues that could be included in a certificate system and the thresholds for the introduction of certificates for these venues.61 However, neither the Minister nor officials were able to set out for us what these thresholds might be nor could they provide any objective measures of the effect a certificate would add to the protection that is being established through the vaccine programme.

44.Dr Hopkins told us:

We know from the original B.1.1.7 variant, which was circulating with high frequency in December, January and February in this country, that the vaccine reduced the risk of transmission by about 50% both in household studies performed in England and in Scotland. It also reduced the risk of asymptomatic infection in healthcare workers by about 70%, so that meant that if you do not have even an asymptomatic infection by regular testing that can be detected then the risk of transmission of course is not there either.

However, we are cautious with B.1.617.2—the variant that first arose in India—as with this variant we do not have measures of reduced transmission or measures of reductions in asymptomatic infection. We do know that two doses of the vaccines that are currently in use in the UK provide adequate protection against symptomatic infection but not asymptomatic and, therefore, we are learning more every day.62

45.The Committee is very encouraged by the evidence we heard both from our expert witness and from the Government as regards vaccine efficacy. What the Committee also heard, however, was that there are significant areas of scientific uncertainty as regards to transmission, effectiveness of the vaccines, implications of new variants and accuracy of testing. The Government has so far failed to make the scientific case for the introduction of a Covid-status certification, in particular in light of the scientific uncertainties highlighted to the Committee. Given that, to date, 61% of the UK population has received at least one dose and 43% has received two doses of the vaccine and this is increasing by the day, there needs to be a clear and demonstrable benefit from the introduction of a Covid-status certification system. It appears to us that the success of the vaccination programme makes a Covid-status certification system unnecessary. The Government must clearly set out the scientific case for a Covid-status certification system alongside any announcement it makes introducing such a system. This is essential for the public understanding of the decision-making process behind such a system and to increase public acceptance of and compliance with vital measures to combat the pandemic.

46.While the Government has not set out the locations, events and venues which would be included in a Covid-status certification system, it did provide some indications that certification might be used for venues such as nightclubs, large events like football matches and for international air travel, but would not be used for corporation buses or the Underground or in small business such as standard pubs and restaurants. It is clear from the evidence we heard that indoor locations which are densely-packed, noisy and poorly ventilated pose the highest risk of transmission, even after vaccination. However, this description could easily apply to some of those premises which the Government has indicated would be included in the scope of the Covid-status certification system and those which it does not envisage such a system applying to. This gives the impression that, if it were to introduce such a system, decisions would be made almost arbitrarily and would not be based on scientific or public health reasons. The Committee is concerned that it appears as if the Government has pre-empted the conclusions of its own review and made decisions on a largely arbitrary basis as to what locations will be included or exempted from the system, regardless of the scientific evidence.

47.The Committee welcomes the Government’s commitment to publish the applicable thresholds for when Covid-status certificates may be required by particular locations, and believes that the thresholds for requiring certification should be published alongside the introduction of any such system so that a better understanding of the rationale and decision-making process can be ascertained. While we accept that new factors, such as the emergence and prevalence of a new variant, may mean that thresholds need to be changed, it would be better for this to be done publicly, accompanied with clear explanations, than for the Government to make the decisions in opaque ways.

Economic, cultural and social impacts

48.We heard from representatives of the hospitality, performing arts and sports sectors, three of the sectors that have been hardest hit by the restrictions put in place to combat Covid-19. All of these sectors have experienced devastating economic and social impacts due to Covid restrictions, in particular from social distancing rules. Emma McClarkin of the Beer and Pub Association told us that the effect on both pubs and brewers had been “nothing short of catastrophic”.63 Richard Jordan, theatre producer, described “a perfect storm” that had been “absolutely devastating” for theatre and wider arts industry.64 Bill Bush, Director of Policy, Premier League, set out that the cost to the Premier League has been upward of £1 billion and could be as high as £2 billion. He also emphasised that the Premier League was in a relatively strong position compared to lower leagues and other sports where broadcasting is a smaller percentage of their income. The return of attendance for these sports, he told us, is a vital component for their survival.65

49.All three witnesses emphasised the imperative nature of the dropping of legal social distancing restrictions to the survival of businesses and individual livelihoods within their industries.66 Bill Bush told us that “it would be unfair and not understood if venue attendance were somehow not seen as part of a general loosening of restrictions”.67 Another common concern expressed by all three representatives was the detrimental effect of uncertainty on the confidence of customers and audiences. Richard Jordan relayed that the experience in the arts sector of opening up in December followed swiftly by having to cancel and shut down shows had been very damaging.68

50.While all three representatives were clear on the importance of ending social distancing restrictions, their positions on the introduction of certification differed. Bill Bush expressed concern about future mitigation being needed to combat a new variant or a winter surge:

We would rather open up, understand the risk factors and take them on board with things like maximising ventilation and so on, and have Covid certification embracing both vaccination and testing as a fallback that is likely to be needed, so that we fall back to a certificated population of attendees rather than social distancing with all the destruction of opportunity and employment that flows from that, still worse behind closed doors.69

He went on to clarify that he and the Premier League were not in favour of a move to a society that requires papers before going to watch a football match and would like to avoid certificates if possible, but nevertheless explained that “We see Covid certification as the lesser of evils. It has significant downsides but the next stop on the line is social distancing, which is awful for sports and other entertainment events large and small.”70

51.Similarly, Richard Jordan told us:

Our principle in the arts and entertainment industry would be to operate without social distancing. If the decision to come is that a certificate will alleviate that choice and it is either/or, then it would be a cautious yes to the certificate. However, absolutely, if it comes in, it has to reflect its moral and economic responsibilities for such an introduction.71

52.He also raised concerns about the extent to which a certificate system would impact on the spontaneity that is such an important part of attendances for theatre and other arts. This was a concern also expressed by Emma McClarkin, who expressed a clear position against certification:

We are implacably against the introduction of vaccine certification for entry to pubs. It would completely go to Richard’s point on spontaneity. The local pub is a place you can go that can be a hub. You do not know when you will want to go to the pub, but you know it will be there whenever you need it. That would be a significant hurdle and barrier for people to overcome to go there. We do not need any more thinking twice among our consumers. We need them to know that the pub is there, it is open and they will get back to life as normal when they are there.72

53.An issue that was very clear from the evidence of all three sectors was that they have severe concerns about the logistical and practical difficulties of implementing a certification system. Emma McClarkin told us:

It would have a significant impact on the running of businesses in terms of the staffing and the costs to businesses. We have done a recent survey. Even just as a hurdle, it would detract about 25% of our trade from coming in. If you need a cost for that, it is about 25% of our revenue, which is an awful lot of money. Some businesses cannot absorb that. They cannot afford another member of staff to police an entry point. That is hugely significant.73

54.Richard Jordan also raised concerns about the cost of implementation, but also how it could practically be implemented in smaller venues and in particular at large scale festivals like the Brighton and Edinburgh fringes where there are thousands of productions in a range of venues.74

55.The hospitality, arts and sports sectors have been some of the hardest hit sectors of the UK economy and society. All three witnesses were very clear about the damaging effect of social distancing restrictions. As set out above, we have not seen a convincing scientific case for a Covid-status certification system, and we do not see how it would aid in the decision to remove and prevent the reimposition of social distancing requirements. It is clear that neither the hospitality nor the arts industry would institute a certification system unless it was imposed upon them as part of the transition towards a permanent end to social distancing restrictions. We are also not convinced that a Covid-status certification system would provide the fall-back protection that the Premier League suggest it could provide should social distancing measures remain in place. We are also not clear that a Covid-status certification system would provide any tangible increase in the public’s confidence in returning to pubs, restaurants, comedy clubs, theatres or sports stadia. It is however clear to the Committee that the introduction of a Covid-status certification system would place new burdens and costs on those industries which have already suffered significantly and continue to suffer as a result of the measures put in place to combat the pandemic. Given the Government’s assessment that the case for certificates is “finely balanced”, the lack of a clear scientific case and the extra burdens and costs that it would place on the businesses and people who it would affect directly, it would be detrimental to the UK’s cultural, social and economic interests for a certificate system to be introduced in any respect domestically.

Ethical issues

Discrimination

56.The Committee has heard serious moral, ethical and legal concerns with the idea of introducing a Covid-status certification system. Liberty,the civil liberties advocacy group, has said that that “it’s impossible to have Covid-status certificates which do not result in human rights abuses. We should all be able to live our lives free from unnecessary interference–any form of immunity passport would rob us of that”.75 The Nuffield Council of Bioethics has also warned that “the negative impacts of certification are likely to fall disproportionately on those who are already socially marginalised and disadvantaged.”76

57.Professor Mills told us that introducing a Covid-status certification system involves weighing up “human rights versus public health and protection of the population”.77 The key question to be asked in relation to the Government’s proposals will be how they seek do this. Professor Wolff similarly highlighted this dichotomy, saying:

the issues of rights are very important but I think we have to realise that public health is also very important. There are occasions, there are precedents where we suspend human rights temporarily because of emergencies, as we have done to some degree during lockdown.78

58.Silkie Carlo told us that some of the most profound issues and concerns with Covid-status certification are around equality and discrimination.79 Both Silkie Carlo and Rt Hon David Davis MP explained that there are whole range of people who for legitimate reasons are unable or find it difficult to access or choose not to get the vaccine. Silkie Carlo warned that some of these reasons engage protected characteristics under the Equality Act 2010, including age, disability, pregnancy, religion and belief.80 As such she told us that there is a:

high risk of indirect discrimination and certainly it raises a profound ethical issue and a practical one as well. The onerous requirement to have a certificate will, in practice, socially and economically exclude some of the most marginalised groups and punish them as a result and further deteriorate trust.81

59.The concerns about the potential discrimination are supported by data from the ONS showing that vaccination rates are lower among certain demographic groups. When categorising people by self-reported ethnic group, vaccination rates for people over 50 in England are highest for White British (93.7%), Indian (90.9%) and Bangladeshi (86.9%), and lowest for Black Caribbean (66.8%), Black African (71.2%) and Pakistani (78.4%). Additionally, while people identifying as Christian, Hindu, Sikh, Jewish and no religion all have vaccination rates above 90%, it is lower for those identifying as Buddhist (83.3%), other religions (81.4%), and Muslim (78.8%). The ONS data also show that vaccination rates were lower according to areas of deprivation, with the vaccination rate in the most deprived areas being 87.8% compared to 94.5% in the least deprived areas.82

Coercing vaccine uptake

60.Rt Hon David Davis MP expressed concern that the introduction of Covid-status certificates “in effect coerces those people” into taking a vaccine and that “that is also against a number of international conventions we are signatories to”.83 He pointed to the recent Council of Europe resolution on Covid-19 vaccines: ethical, legal and practical considerations that urges Member States, “with respect to ensuring a high vaccine uptake”, to:

ensure that citizens are informed that the vaccination is not mandatory and that no one is under political, social or other pressure to be vaccinated if they do not wish to do so;

ensure that no one is discriminated against for not having been vaccinated, due to possible health risks or not wanting to be vaccinated.84

The proposal for Covid-status certification, he argued, explicitly would do what that resolution warns against by coercing people to get vaccinated and “explicitly discriminates against people who have not been vaccinated”.85

61.When asked about whether the introduction of Covid-status certification was intended to coerce or encourage people to take the vaccine, the Minister said “No”, going on to say “Yes, we want to drive uptake of the vaccine, absolutely, but, no, the certification system is not intended to do that. No.”86

62.When asked about the wider ethical concerns surrounding the idea of introducing a Covid-status certification system, the Minister told us:

There are two very important things. The first thing is that, overall, through the pandemic people’s freedoms have been restricted for public health reasons. None of us like it but we all know the rationale. We might put the balance on one side of the ledger or on the other a wee bit more, but we understand that. Of course, you are absolutely right, when the principle of Covid-status certification was first raised one of the big concerns was: are vaccinations available to people who are older not younger; is this discriminatory on the basis of age?

We know that for a variety of reasons, of which this Committee is familiar, that vaccine take-up among some communities—particularly but not exclusively some BAME communities—was lower, so was there a risk of either direct or indirect discrimination? That is why we wanted to make sure that any form of Covid-status certification also allowed for testing and it is why we wanted to make sure that we did everything possible to increase vaccine take-up among communities where vaccine figures were lower.

Even with all of those measures in place, you still have to make a judgment in the round. Of course, one of the things that you quite rightly raised, John [McDonnell], about which we are concerned, is making sure that anything that we put forward is fair, respects people’s rights and can command public confidence and assent.87

63.The Minister and Kathy Hall also set out that the Government had been looking at equalities issues as part of its review into Covid-status certification and in the event that such a system were to be introduced, an Equalities Impact Assessment would be produced to accompany the legislation introducing such a system. The Minister committed to ensuring that MPs would have the opportunity to look at the Equalities Impact Assessment and the work carried out on equality issues before making a decision on any measures.88

64.A Covid-status certification system would, by its very nature, be discriminatory. The evidence of vaccine uptake is a clear indication that such a system would likely disproportionately discriminate against people on the basis of race, religion and socio-economic background, as well as on the basis of age due to the sequencing of the vaccine rollout. While the Committee accepts that in emergency situations the prospect of temporary infringement of rights may need to be weighed against public health or other emergency considerations, these occasions should only ever be when there is an overwhelming case of necessity and should, in all situations, be proportionate to that necessity. In the case of Covid-status certificates, by the Minister’s own admission, the case is “finely balanced”. The Committee finds that there is no justification for engaging in what is likely to be a significant infringement of individual rights by introducing a Covid-status certification system and given the absence of convincing scientific case and the large the number of uncertainties that remain, we recommend that the Government abandon the idea of using a Covid-status certification system domestically.

65.If the Government moves forward with any proposals to introduce such a system, despite the absence of a scientific case for doing so, a full Equalities Impact Assessment must be provided in good time and certainly in advance of any parliamentary vote on the legislation underpinning that system.

Data protection

66.Ethical concerns were also brought to the Committee’s attention about data protection in our oral evidence sessions. Professor Wolff said:

If we are implementing this, we would need to think about the level of security needed. Should people have to register with a national database? Should there be an actual passport that gets scanned? As soon as you think about the protections you need to put in against fraud, the passports will have to contain quite a lot of information. That point worries me. I am not worried so much about whether a pub knows whether I have had a vaccine, but what it has to do to authenticate my certificate may mean that a database has to be created, which itself could be liable to hacking or some other intrusion.89

67.Moreover, Silkie Carlo said:

The implication is that every individual will need to carry with them either an app and a smartphone to indicate this data, which engages privacy rights and data protection rights, or they will have to have a slip of paper that displays something like a QR code. It also engages privacy because what underlies this whole proposal is the idea of a requirement for vaccination or a requirement for medical testing. Both of these engage bodily autonomy, which engages privacy rights as well.90

68.Serious concerns were also raised with the Committee that a Covid-status certificate system could be a backdoor way of introducing an ID card system to the UK. Silkie Carlo told the Committee that this was “a very serious risk. In some ways, the proposal for Covid-status certificates could go further beyond the idea of an identity card in intrusion and pervasiveness.”91 Rt Hon David Davis MP agreed, telling the Committee that “[t]he first clue is to look at the proposal of the Department of Health to add it to our existing health accounts. Silkie is absolutely right that it will not be the last use. There will be something else added to it and something else added to it.”92 Furthermore, Professor Wolff told the Committee that “[t]his is potentially a slippery slope to ID cards. There are unintended consequences for particular individuals and there are also social and economic transformations that sometimes happen as a result of what look like small, innocent steps in the reconfiguration of power.”93

69.Addressing the concern that a Covid-status certificate system could be a back door to introducing an ID card system, the Minister told us:

In the United Kingdom, again for a host of historical reasons, there has always be scepticism towards that form of national registration simply for operating as a citizen, moving around and so on. It is not intended to use Covid-status certification as a Trojan horse for anything like that.94

70.Professor Mills told us that one of the key issues is whether the public feel their data is being harvested and adequate data privacy and security measures are in place. Professor Mills further highlighted the apparent lack of a Data Protection Impact Assessment for the NHS app, where the Government has decided to host a Covid-status certificate feature. We asked the Government why there was not a Data Protection Impact Assessment (DPIA) for the NHS app, like there is for the NHS Covid-19 app.95

71.Dr Susan Hopkins told us that the DPIA already existed and she had recently reviewed it.96 The Minister committed to sending the DPIA to the Committee, and shared the DPIA with the Committee on Wednesday 9 June asking that it not be published as “DPIAs are internal assessments, that are routinely iterated and therefore not made public”.97 The Committee will review the DPIA, but are content unless there are areas of concern to respect the request for confidentiality.

72.On the wider concerns about data protection, the Minister told us that the Government does and would continue to do everything possible to protect people’s data and guard against cyber-attacks. However, he then went on to say that:

Even with the strongest data protection requirements, you can still find that hostile actors can disrupt the operation of public services. I am not diminishing for a moment the need for appropriate data protection but we need to be on our mettle in dealing with cyber incursions.98

73.We have strong concerns about the data protection risks that are involved in establishing a Covid-status certification system. Again, given that the Government have not established a clear scientific case, nor a good overriding public interest case, for the introduction of a Covid-status certification system, establishing the infrastructure necessary for such a system is an ineffective use of resources that cannot be justified. Furthermore, if a certificate system were introduced the Government would be introducing a system fraught with data protection and security risks. The Committee believes that the Data Protection Impact Assessment for any app hosting a Covid-status certificate should be published.

74.While it may not be the Government’s intention for the potential introduction of Covid-status certificates to be a route to introducing ID cards into the UK, there are clear similarities and legitimate concerns that this could occur. Parliament should be aware of these concerns and take them into account when considering any potential Covid-status certification system proposed by the Government.

International Travel

75.While this inquiry was underway, on 28th April 2021, the Secretary of State for Transport, Grant Shapps MP, announced that the NHS app would be used for Covid-status certification for the purpose of international travel.99 We raised the issue of why the Government had decided to pre-empt its own review and make this announcement with the Minister. He told us that he did not think that the announcement made by the Transport Secretary did pre-empt the conclusions of that report, and that he thought that “whatever decision is taken, having the infrastructure in place is a requirement of being able to move ahead.”100 He went on to say:

We certainly know that international travel … will almost certainly require proof of Covid-status certification. Vaccination has certainly been agreed by many countries and many jurisdictions as one of the most appropriate and reliable ways of providing that information. It is a service that the NHS provides and one that citizens are understandably anxious to take up, but there is no requirement to do so.101

76.When asked why the certificate was added to the NHS app before any country had agreed to accept it, the Minister reiterated that he thought it was better to have the “infrastructure in place in order to be able to operationalise it at that moment that that protocol was agreed”.102 He also told us that a “small [but significant] number of countries” had agreed to accept the NHS app certificate, but that the EU and countries like the U.S. had not yet agreed to accept the Certificate.103 Kathy Hall added that the “[t]he digital certificate and the Covid certificate are based on the WHO interim data standards for Covid vaccination. There are countries that have said they will accept either both or one of those”.104

77.The Minister went on to explain that the aim for Covid-status certificates for international travel is:

that the individual countries or jurisdictions would agree mutually or plurilaterally or multilaterally to recognise each other’s certification, much as they recognise the integrity of individual nations’ systems when it comes to regulating, for example, other health protocols.105

78.The decision to launch the Covid-status certificate function on the NHS app for international travel, without notifying and consulting Parliament, could be construed as contempt for Parliament and this Committee. The policy should have been set out in advance of any decision being taken to enable scrutiny, and the House should have been given the opportunity to vote on the proposals. Furthermore, it remains to be seen whether the certificate that has already been launched will be universally or widely accepted by other countries in its current form.

79.It is all the more unfortunate that the Government took the approach it did on this issue, as it appears to the Committee that demonstrating Covid-status may become a necessary feature of international travel in order to avoid excessive quarantine and testing requirements over the coming months and possibly years. The data protection concerns raised above still appertain to the use of the NHS app for this purpose and the Government should ensure that the very minimum necessary personal data is shared with foreign governments through the certificate.

Legislative Options for Introducing the System

80.The Government has already sought to introduce a Covid-status certificate. Concern has been expressed to the Committee that the Government might seek to avoid the appropriate level of scrutiny for a Covid-status certification system by introducing it through secondary legislation. Rt Hon David Davis MP stressed to the Committee importance of primary and not secondary legislation being used, telling us: “If we do this it should be primary legislation because it is so serious. It is such a major deviation from our historic approach.”106

81.The Bingham Centre have expressed similar concerns arguing that:

From a Rule of Law point of view, any vaccine certificate scheme must be introduced using new primary legislation. Delegated legislation will not provide Parliament with a sufficient opportunity to review, debate, and amend the Government’s proposals. Parliament’s ability to scrutinise delegated legislation is inherently limited. Delegated legislation cannot be amended by Parliament except in exceptionally rare circumstances. This means that MPs and Peers are almost always presented with an all-or-nothing choice when scrutinising statutory instruments: either approve or reject the instrument in its entirety. Either House would be making a significant political statement if it rejected a statutory instrument, and this rarely happens in practice. Therefore, there is little scope for Parliament to push for changes to be made to the details of proposed statutory instruments, and little incentive for the Government to compromise in response to Parliamentary pressure. In addition, Parliament spends far less time debating secondary legislation than it spends debating primary legislation.107

82.When questioned on whether primary or secondary legislation would be used to introduce a Covid-status certification system, the Minister said:

Were we to go ahead with a form of Covid-status certification, there is a range of potential legislative options, but if we were to have a legal change we would have a vote on the floor of the House of Commons. I think some people have made the point that secondary legislation, which would be done by means of statutory instruments in a Committee would be unsatisfactory. I agree with that, but it may be possible that if we need to go ahead one can use secondary legislation but have it debated and voted on, on the floor of the House, by the whole House.108

83.The introduction a Covid-status certification system would have a serious impact on businesses and individuals and has the possibility of infringing rights and being discriminatory in nature. In light of that, we believe that it would be inappropriate for a system with such a potentially wide adverse impact to be introduced by secondary legislation. Using secondary legislation would not only not fit with the constitutional significance of the legislation but importantly it would deprive Parliament the opportunity to make amendments. Given that the Government has not made the scientific case for a Covid-status certification system, and in its own assessment the case is “finely balanced”, the introduction of such a system must be by way of primary legislation. This would allow for the full implications and ramifications of the proposals to be fully and properly considered by the Government and would also allow Parliament the appropriate amount of time to consider, scrutinise and where necessary amend the Government’s proposals.