Cabinet Office’s call for evidence on COVID-status certifications – Law Society response

The proposals

The government is reviewing whether COVID-status certification could play a role in:

• reopening our economy
• reducing restrictions on social contact, and
• improving safety

'COVID-status certification' refers to the use of testing or vaccination data to confirm in different settings that individuals have a lower risk of getting sick with or transmitting COVID-19 to others.

Such certification would be available both to vaccinated people and to unvaccinated people who have been tested.

The government wanted views on a potential certification scheme in the following areas:

• ethical
• equalities
• privacy
• legal
• operational

Our view

The more detailed the government guidance on how to use the proposed scheme, the more clarity employers, employees and consumers will have.

If the guidance is not comprehensive, there is a risk that the objectives of the scheme will not be fulfilled and/or that further strain will be placed on the courts and tribunal system as people seek clarity through litigation.

This would not be a good use of an already heavily burdened justice system.

The main factors

The main factors we say the government should consider are:

Existing guidance

• What implication does the proposed scheme have on existing COVID-secure guidance such as social distancing in the workplace and workplace testing?
• How will government ensure that no-one is unduly disadvantaged as a result of not yet being given access to the vaccine?

Discrimination

The Equality Act 2010 prohibits employers from discriminating against employees for reasons including:

• age
• race
• disability
• pregnancy
• religious belief

In developing the scheme, the government must consider carefully the potential impacts on people sharing different protected characteristics and how those impacts could be mitigated.

Data

The technology used will need to have high levels of security.

This includes:

• the technology the government uses for the COVID-status certification
• the data processing mechanisms that employers who may be required to check the certificate use

The public will want to be confident that the data will only be used for specific and limited purposes.

Places where solicitors regularly work

In evaluating risks to their employees, firms will wish to understand the arrangements in place where solicitors regularly work, such as in:

• courts
• police stations
• places of detention

They will also need to understand what certification their employees will need in order to access such settings.

Next steps

The consultation closed on 29 March 2021.

The results of the consultation are being analysed, and the government hopes to offer more details as to how the scheme will work before step 4 of the roadmap to recovery is implemented.