The Constitution and Mandatory Vaccinations

8kczg9v0swrydm

Is the Irish Constitution able to protect citizens from mandatory vaccinations if such a measure is enforced by the government?

My thoughts would be that AG v Ryan (the right to bodily integrity) could be invoked if it came to a court case. However, to what extent could the State then claim public policy or public interest?

In a related question, is there any EU/ECHR law applicable?

Raisins

Gracelynn Plump Ace wrote: »

Is the Irish Constitution able to protect citizens from mandatory vaccinations if such a measure is enforced by the government?

My thoughts would be that AG v Ryan (the right to bodily integrity) could be invoked if it came to a court case. However, to what extent could the State then claim public policy or public interest?

In a related question, is there any EU/ECHR law applicable?

Hello college assignment.

In a related question how would you propose going about this discussion in 2,500 words.

8kczg9v0swrydm

I think this recent Council of Europe resolution could be relevant:

https://pace.coe.int/en/files/29004/html

Point 7.3:

with respect to ensuring high vaccine uptake:

7.3.1 ensure that citizens are informed that the vaccination is NOT mandatory and that no one is politically, socially, or otherwise pressured to get themselves vaccinated, if they do not wish to do so themselves;

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

How much weight would such a resolution carry?

Peregrinus

Legally, very little.

It urges countries not to adopt mandatory vaccination regimes, and not to discriminate against those who decline vaccination for one reason or another.

NB: It urges this in order to ensure high vaccine uptake; there's plently of evidence that voluntary regimes acheive higher compliance than mandatory ones. It does not suggest that a mandatory regime would be unlawful or in breach of the ECHR, and it does not assert that there is a right to refuse vaccination.

It has political force, but little or no legal force. If, despite this resolution, a country were to adopt a mandatory vaccination regime, I don't think this resolution would lead any court to conclude that the vaccination law was unlawful, unconstititional or a breach of the ECHR - not least becsuse the resultion itself does not say any of these things, but also because the body which passed the resolution - the Parliamentary Assembly of the Council of Europe - has no competence to rule on such matters.

8kczg9v0swrydm

Peregrinus wrote: »

Legally, very little.

It urges countries not to adopt mandatory vaccination regimes, and not to discriminate against those who decline vaccination for one reason or another.

NB: It urges this in order to ensure high vaccine uptake; there's plently of evidence that voluntary regimes acheive higher compliance than mandatory ones. It does not suggest that a mandatory regime would be unlawful or in breach of the ECHR, and it does not assert that there is a right to refuse vaccination.

It has political force, but little or no legal force. If, despite this resolution, a country were to adopt a mandatory vaccination regime, I don't think this resolution would lead any court to conclude that the vaccination law was unlawful, unconstititional or a breach of the ECHR - not least becsuse the resultion itself does not say any of these things, but also because the body which passed the resolution - the Parliamentary Assembly of the Council of Europe - has no competence to rule on such matters.

That is an insightful analysis.

While such a resolution does not legally bind, I do think it carries political clout. Alongside the ECHR, the CoE is one of the chief guardians of human rights and rule of law in Europe. The language on mandatory vaccinations is pretty forceful. Although one could not rely on it as law, I could see how the ECHR (court) might use it as an expression of contemporary human rights policy under the ECHR system.

For a statement of the law, one would probably have to examine ECHR case law on bodily integrity, privacy, proportionality and public policy.

However, my main interest is in the Irish Constitution. Any applicable cases?

Del2005

Gracelynn Plump Ace wrote: »

I think this recent Council of Europe resolution could be relevant:

https://pace.coe.int/en/files/29004/html

Point 7.3:




How much weight would such a resolution carry?

How would 7.3.2 be worked if airlines, other tourism activities or even shops/services require proof of vaccination before providing their service?

Peregrinus

Well, 7.3.2 calls for states to ensure that "no-one is discriminated against for not having been vaccinated", but doesn't go into the detail of what this might mean — which is the very question you are raising. The resolution leaves that up to states to work out for themselves (which is a prominent feature of how the European Convention on Human Rights generall works, incidentally - principles are laid out and then states have to work out how to apply those principles in practice, with an acceptance that different states may apply them somewhat differently, and there is no one right way of doing this).

Nobody likes discrimination, but in point of fact all our bans on discrimination are larded with exceptions, qualifications, modifications, etc which are seen as either reasonable or necessary - e.g. discrimination on the grounds of age is forbidden, yet it's a central feature of school and university admission processes, getting a driving licence, voting, and much else. Discrimination on the grounds of sex is forbidden and yet we have separate toilets and changing rooms for men and women. Discrimination on the grounds of national or ethnic origin is forbidden, but a social club for Polish people would be perfectly lawful. Etc, etc, etc.

In other words, prohibitions against discrimination are invariably qualified by the admission of cases in which we regard discrimination as appropriate. So, are there circumstances in which it might be appropriate to treat vaccinated and unvaccinated people differently? That's up to states to decide in the first instance, but there are obvious situations - e.g. medical situations, or hiring care staff for a home for elderly people - whether whether someone is vaccinated or not would be a highly relevant consideration. So there's obviously going to be some situations in which it will be permitted to treat people differently depending on whether they have been vaccinated. And, depending on the evidence about what the effects of the vaccine are, there might be many such situation. For example, if there is evidence that vaccinated people are signficantly less likely to infect others with Covid, then it might be reasonable to exclude unvaccinated people from situations, places or activities that create a risk of infecting others. Airlines, for instance, might say that they won't carry unvaccinated passengers, or that they will only carry them if they have a recent, clear Covid test. The law might permit this. It wouldn't necessarily be in contradiction with the Parliamentary Assembly resolution, because that is declaring a principle only, not an absolute rule.

Peregrinus

Gracelynn Plump Ace wrote: »

. . . However, my main interest is in the Irish Constitution. Any applicable cases?

I should have thought of this one earlier; AG -v- Ryan is the obvious starting point here. The plaintiff objected to fluoridation of the public water supply, on the basis that it was injurious to her health and therefore an infringement on her "person", and so a breach her rights under Art 40.3. The case is foundational for the idea that there are "unspecified personal rights" that enjoy constitutional protection, and it affirms that there is a right to bodily integrity, but it explicitly does not define the scope or limits of that right.

It didn't need to define them, because it held that, on the evidence, water fluoridation was not injurious to health, which was the basis on which the plaintiff argued her rights were being infringed.

It seems to me that this opens up two possible lines of argument:

1. Water fluoridation may not be injurious to healt but Covid vaccination may be. Of course, to run this line of argument you'd need actual evidence of a material risk to health from the vaccine.

2. Argue that the right to bodily integrity extends to a right to decline medical treatment even if it isn't shown to be injurious to health. I haven't looked into this, but off the top of my head I think this would be a novel argument — I think the bodily integrity cases so far have revolved around claims that state action was injuring or threatening to injury the plaintiff's health. So you'd be looking to get the court to do what it wouldn't do in Ryan, and rule on the scope of the right to bodily integrity and, in particular, whether the right extends to a right to decline medical treatment.

I don't think the current climate is favourable to the discovery of new unspecified rights or the expansion of the scope of existing ones but, again, I haven't kept up with the case-law on this, so who knows?

Of course, we don't have the issue unless we have a mandatory vaccination law to begin with which, right now, we don't. Arguing that the right to bodily integrity means the state cannot pass a law allowing them to strap you to the table and vaccinate you over your protests is one thing; arguing that the law cannot allow other people to treat you differently because you are not vaccinated is quite another.

Article earlier on the news saying Government may legislate to allow employees who refuse vaccination to be moved/let go on H&S grounds. This is in response to some care home employees refusing to get vaccinated.

Uk Government said employers will be protected.

https://www.google.ie/amp/s/www.dailymail.co.uk/news/article-9235025/amp/Bosses-legally-demand-staff-vaccinated-against-Covid-health-safety-laws.html

Peregrinus

Peregrinus wrote: »

Of course, we don't have the issue unless we have a mandatory vaccination law to begin with which, right now, we don't. Arguing that the right to bodily integrity means the state cannot pass a law allowing them to strap you to the table and vaccinate you over your protests is one thing; arguing that the law cannot allow other people to treat you differently because you are not vaccinated is quite another.

Unlikely to get a mandatory vaccination law. More likely to get a series of laws setting out restrictions on access to certain amenities and reduction of legal protections for employment etc. for people who unreasonably refuse to take the vaccine. With unreasonable refusal being defined as a refusal other than on the basis of a specific medical condition precluding one from taking it etc.

eleventh

Deleted User wrote: »

More likely to get a series of laws setting out restrictions on access to certain amenities and reduction of legal protections for employment etc. for people who unreasonably refuse to take the vaccine.

If someone is vaccinated against covid, why would they expect others to also be vaccinated? Explain that.

eleventh

eleventh wrote: »

If someone is vaccinated against covid, why would they expect others to also be vaccinated? Explain that.

Presumably to protect those who have not, or cannot be vaccinated. Also, vaccine does not give 100% immunity from infection, therefore the more people vaccinated, the less likely people are to come in contact with an infectious person.

eleventh

eleventh wrote: »

If someone is vaccinated against covid, why would they expect others to also be vaccinated? Explain that.

Vaccines protect the individual who can take the vaccine. Eradicating a disease or reducing it to a point that is effectively eradicated requires actual herd immunity. That comes from almost everyone taking the vaccine. Once a sufficient number of people take the vaccine, and that is a very high percentage, the herd immunity effect means that unvaccinated persons such as newborns and immuno-compromised people (who cannot take the vaccine) are also protected.

Basically, proper population based vaccination requires us to act collectively for the benefit of all rather than individually for the benefit of ourselves. If we do the latter then babies and people who cannot take the vaccine remain at serious risk. That's the sort of balancing of rights that the Oireachtas can take into account when putting national interest over individual rights.

eleventh

Dav010 wrote: »

Presumably to protect those who have not, or cannot be vaccinated.

You presume wrong because many, if not most, who decline a vaccine neither want nor need your 'protection'.

Notice the word "protection" has been thrown around a lot since this thing started.
It should be looked into - what the word means or should mean in a legal context if nothing else.
Same with "health & safety", another buzzword.

Also, vaccine does not give 100% immunity from infection, therefore the more people vaccinated, the less likely people are to come in contact with an infectious person.

Does it give ANY immunity? According to reports I read, there is no claim that any immunity is conferred by taking of these vaccines. They claim to lessen the symptoms for the person vaccinated, if they happen to get ill (with covid, "covid-related" or whatever the latest criteria covers).

eleventh

eleventh wrote: »

You presume wrong because many, if not most, who decline a vaccine neither want nor need your 'protection'.

Notice the word "protection" has been thrown around a lot since this thing started.
It should be looked into - what the word means or should mean in a legal context if nothing else.
Same with "health & safety", another buzzword.

Does it give ANY immunity? According to reports I read, there is no claim that any immunity is conferred by taking of these vaccines. They claim to lessen the symptoms for the person vaccinated, if they happen to get ill (with covid, "covid-related" or whatever the latest criteria covers).

Not to protect the people who do not wish to be vaccinated, rather to protect others from those who become infectious as a consequence of their refusal.

All employers have H&S responsibilities, all employees are entitled to a safe working environment. It is probable that Covid vaccination status will be a strong consideration in future.

In relation to immunity:

https://www2.hse.ie/screening-and-vaccinations/covid-19-vaccine/immunity-covid-19-vaccine.html

eleventh

Dav010 wrote: »

In relation to immunity:

https://www2.hse.ie/screening-and-vaccinations/covid-19-vaccine/immunity-covid-19-vaccine.html

Sounds like it was written by a child.

Some quotes:

"It takes 3 weeks for a dose to start to work". No definition of what "work" is supposed to mean - could mean anything.

"After having both doses of a COVID-19 vaccine, most people will be protected against the virus."
Again, so vague. Nothing about immunity. That word 'protected' again - covers *anything* apparently.

"We do not know yet if being vaccinated stops you from spreading COVID-19 to other people."
No claim of immunity - as I said in my post.

*scrolls to check who authored the document *
Nobody it seems, but "fact checked by vaccine experts working in Ireland".

Larbre34

40.4 is crystal clear. Because of it, no Government would ever consider mandatory vaccination. Habeas corpus and all that jazz.

eleventh

eleventh wrote: »

You presume wrong because many, if not most, who decline a vaccine neither want nor need your 'protection'.

Notice the word "protection" has been thrown around a lot since this thing started.
It should be looked into - what the word means or should mean in a legal context if nothing else.
Same with "health & safety", another buzzword.

Does it give ANY immunity? According to reports I read, there is no claim that any immunity is conferred by taking of these vaccines. They claim to lessen the symptoms for the person vaccinated, if they happen to get ill (with covid, "covid-related" or whatever the latest criteria covers).

That's two words. And your post has zero value.

Larbre34

Larbre34 wrote: »

40.4 is crystal clear. Because of it, no Government would ever consider mandatory vaccination. Habeas corpus and all that jazz.

Yeah... that's not relevant. You want Art. 40.3.2 and it's not clear AT ALL.

Peregrinus

Larbre34 wrote: »

40.4 is crystal clear. Because of it, no Government would ever consider mandatory vaccination. Habeas corpus and all that jazz.

What in God's name has habeas corpus got to do with mandatory vaccination? Habeas corpus is a legal procedure for questioning the lawfulness of someone's imprisonment.

Larbre34

Peregrinus wrote: »

What in God's name has habeas corpus got to do with mandatory vaccination? Habeas corpus is a legal procedure for questioning the lawfulness of someone's imprisonment.

Exactly.

Peregrinus

Then why are you bringing it up? It has nothing to do with vaccination.

Larbre34

Peregrinus wrote: »

Then why are you bringing it up? It has nothing to do with vaccination.

Yes.

Peregrinus

It's gradually dawning on me that you were being sarcastic all along. Sorry about that; you always lose a few of the slower ones along the way.