by David MgGrogan
Following yesterday’s news reports about the pro-vaccination ruling in the European Court of Human Rights, we asked David McGrogan, Associate Professor of Law at Northumbria Law School, to take a look at the judgment for us. Turns out, everything wasn’t as it seemed.
A recent decision of the European Court of Human Rights has made something of a splash, because it appears, as the headline on the BBC website puts it, to suggest that the Court has “backed mandatory pre-school jabs“. This immediately calls up images of small children being forcibly vaccinated irrespective of their parents’ wishes. As is often the case, however, the reality is a lot less dramatic. The Court’s decision is really just a faithful application of what must, perhaps regrettably, be the correct legal position. However, it is an important case for those Lockdown Sceptics readers who are wary about vaccinations to understand, because it is a foretaste of the conclusion that a UK court would almost certainly reach in similar circumstances.
The case in question, Vavricka and Others v Czech Republic (App No. 47621/13) concerned a series of six applications from Czech citizens concerning the position in Czech law that all permanent residents must undergo certain routine vaccinations or face a fine, and that preschool facilities may only accept children who have received the vaccinations in question. The applicants, some of whom were parents who had been fined for not allowing their children to be vaccinated, and some of whom had been denied places at preschool facilities as children, argued amongst other things that the consequences of the application of the law in question violated their rights under Article 8 of the Convention – namely the right to respect for their private lives. The Court held that while there had been an interference with this right, it was justified as having been lawfully enacted and being “necessary in a democratic society… for the protection of health” pursuant to that Article.
It is important first to make clear that the Court absolutely did not “back mandatory pre-school jabs”. The Court’s decision was the proper and circumspect one to adopt in the circumstances – i.e., that it is not the place of an international court to override the decisions of national authorities who are accountable to their electorates, as a general principle, and those national authorities must therefore have a wide “margin of appreciation” in how they choose to balance competing interests (those here being the right to privacy and the requirement to protect health). The position in Czech law was somewhat more prescriptive than most of the other parties to the European Convention, but there were other governments (the French, Polish and Slovak ones) which adopted similar positions, and there was therefore no real basis for concluding that the law in question was not “necessary in a democratic society”.
Also relevant in making this determination was that the consequences of failing to obey the law in question were not particularly severe – the fines imposed were not high, and the rule requiring pre-schools to refuse to accept non-vaccinated children did not apply to primary or secondary schools; there was also no question of any child being forcibly vaccinated as a consequence of its parents breaching their legal obligations. All that would happen (admittedly quite a big thing) was that the child in question would not be allowed to attend pre-school.
Finally, the Court was persuaded that the Czech authorities were attempting to meet a genuine social need – namely, to maintain ‘herd immunity’ so as to protect those children who were particularly vulnerable to certain diseases, or who were themselves unable to be vaccinated because of a medical condition. There was therefore an element of ‘social solidarity’ about the law – requiring the vast majority of small children to undergo the minor inconvenience and risks associated with vaccination in the name of protecting the small minority who could not – and the law was therefore better thought of as ultimately protective, rather than punitive, in character.
The Court’s decision is difficult to impugn when one considers the context, despite the personal distaste that libertarians among us might feel about coercing parents into ‘consenting’ to vaccinating their children. The European Court of Human Rights is not the guardian of constitutional rights in the same way as, for instance, the US Supreme Court. It is generally at pains to recognise that, by default, questions of policy and the balancing of competing interests are really for national governments to decide, because they are the ones with democratic legitimacy. And the judges were in the end only loyally applying the Convention itself, which explicitly caveats that the right to privacy under Article 8 (as most other rights) may be restricted where necessary for the protection of health, and the wider doctrinal position in international human rights law, which is that an individual’s right to privacy must be weighed against – and does not trump – the right to health of others.
Nobody should be under any illusions that courts in the UK would come to a very different conclusion to the European Court if the government were to introduce a similar law to the Czech one in question. It is already the case that parental opposition to vaccination of their children may be, in effect, ignored if the child is subject to a care order (Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664). UK courts do not have the power to strike out Acts of Parliament as unlawful in any event, but were an Act to be passed by Parliament requiring children to be vaccinated on the same terms as in Czech law it would be unlikely to be subject to successful challenge.
David McGrogan is an Associate Professor of Law at Northumbria Law School.
