Legal challenge to Scottish Government’s Covid vaccine passport plans

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The Scottish Government is facing a legal challenge over controversial plans to introduce vaccine passports for nightclubs and some other large events.

The Night Time Industries Association (NTIA) confirmed its lawyers were to commence proceedings, with the Scottish Government facing calls to ditch the plans – which are due to come in next week – as a result

It comes after concerns were raised that the definition of nightclubs drawn up by the Scottish Government could impact on parts of the hospitality industry.

The NTIA said the scheme – which is due to come into effect in Scotland from 5am on Friday October 1 – raises “serious issues with definition, market distortion, discrimination, resource allocation and economic impact amongst others”.

The statement continued: “It is also clear to us that the policy as currently proposed is neither proportionate, nor represents the lowest level of intervention possible to achieve the public health imperative, and it is therefore likely to be unlawful.

“Regrettably then, and given the serious flaws in the policy as proposed, we have now instructed our legal team to commence proceedings against the Scottish Government with a legal challenge to vaccination passports.”

The organisation said it had hoped that “the recent evidence of rapidly falling cases might provide government with the incentive to look again and take the sector’s concerns into account, and to engage in meaningful consultation where government and businesses could work together and design solutions that both address our shared goal of reducing the harms from Covid and are also deliverable”.

But it added: “Unfortunately, this has not happened.”

The legal challenge was confirmed less than 24 hours after First Minister Nicola Sturgeon set out more details of the scheme, including the definition of a nightclub.

This covers venues that are open between midnight and 5am, which serve alcohol after midnight, and have music for dancing as well as a dancefloor.

The scheme means people will have to prove they have had both doses of a coronavirus vaccine before entering.

First Minister Nicola Sturgeon set out details of the scheme in Holyrood on Tuesday (Fraser Bremner/Scottish Daily Mail/PA)
First Minister Nicola Sturgeon set out details of the scheme in Holyrood on Tuesday (Fraser Bremner/Scottish Daily Mail/PA)

Ms Sturgeon told the PA news agency the definition of a nightclub was “actually quite narrow”.

She said: “A vaccine certification scheme is not about making life difficult for businesses, it’s about trying to use a proportionate measure to keep transmission of the virus under control over the winter, so that we can keep businesses like nightclubs and big events open and operational rather than them facing potential closure again this winter as they faced last winter, so it’s about trying to keep the economy open.”

She also stressed that similar schemes “are operating already successfully in many countries across the world and actually on a much more extensive basis than we are proposing here for Scotland”.

But with the Tories, Labour and Liberal Democrats all voting against the measure in Holyrood, Conservative Covid-19 recovery spokesman Murdo Fraser argued that the legal challenge was a justified response to an “extreme, damaging and profoundly unfair scheme”.

He said: “The NTIA has had no choice but to take the SNP Government to court, after their concerns have been repeatedly and deliberately ignored by the Government.

“The hospitality industry has been warning of the devastating effects of the SNP’s plans for weeks. They have done everything in their power to have their concerns heard and yet the SNP has failed to engage in any kind of meaningful consultation with Scottish businesses.

“This legal action is testament to the fact that many businesses will be disproportionately and unjustifiably harmed by the SNP’s current schemes.

“I urge the SNP Government to drop these plans now, before Scotland’s economic recovery is damaged even further.”

Scottish Liberal Democrat leader Alex Cole-Hamilton said: “Hopefully this legal action will turn out to be last orders for this illiberal Covid ID card scheme.

“The Scottish Government should cut their losses and plough the resources that are going into this wasteful scheme into fixing our testing and tracing operation and ringing all of those who have yet to have two doses of the vaccine to encourage them to book an appointment.”

A Scottish Government spokeswoman said: “We want to keep businesses open and trading over what may be one of the most difficult winter periods in history. Vaccine certification is in use in many countries, often with a much wider scope than planned in Scotland, and we believe they are an essential and proportionate measure to reduce the risk posed by coronavirus.

“We are working closely with stakeholders on the rollout of the certification scheme. Further details will be announced shortly.”

Meanwhile, the issue of vaccine passports will not be scrutinised by all MSPs in Holyrood before the October 1 implementation date, following a parliamentary vote.

Labour MSP Neil Bibby sought to amend a parliamentary business motion to insert a ministerial statement on the issue next week, but MSPs voted it down by 68 votes to 53.

“This scheme will have a massive impact on businesses and workers, and will go live at the end of next week,” Mr Bibby said.

“We need a statement because there are still too many unanswered questions.”

The Scottish Tories backed the amendment, but parliamentary business minister George Adam said there has been the opportunity for debate, pointing to two Covid-19 updates from the First Minister, a topical question and John Swinney appearing before the Covid-19 Committee every two weeks.

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