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Europe's human rights judges are right not to ban compulsory vaccines

9 April 2021

10:29 PM

9 April 2021

10:29 PM

If you think public health authorities in England are overbearing, spare a thought for the Czechs. Parents who fail to have children vaccinated face being fined or having their offspring excluded from nurseries. Now, in a landmark ruling, the European Court of Human Rights, has backed that policy. But even critics aghast at the thought of compulsory vaccinations should welcome the court’s verdict. Why? Because human rights judges should not be butting in here.

The Czech law bends over backwards to accommodate welfare concerns: vaccinations are free; there are exceptions for good medical reasons; and any vaccine-generated injury is automatically compensated. Yet it was still an obvious target for human rights challenge on individualist grounds.

An indignant gentleman called Pavel Vavřička, who objected on principle to being ordered to expose his children to what he saw as unjustifiable risks and punished when he refused, duly obliged. He complained in Strasbourg that the law infringed his rights to a private life and to freedom of thought and conscience. He was joined in these complaints by a number of younger people who had been excluded from various pre-school establishments as a result of not being properly immunised.

Faced with a straight fight between the pretensions of public health technocracy and the feelings of a sceptical individual, the Human Rights Court unhesitatingly backed the former. True, fining someone for not getting a child vaccinated, and refusing an unvaccinated child entrance to a school, interfered with private life.

But it served a legitimate aim, said the court; it was not disproportionate; it served a pressing social need; and in such a case the state, which had a responsibility to promote public health, should be given a lot of leeway under human rights law when deciding how to satisfy that need. Vavřička had nothing to complain about.

Of course, the court’s verdict will not settle the debate here. Those who object to the Czech vaccine policy will detect a disquieting air of nanny about making kids get jabbed. Anyway, they might say, isn’t it the role of human rights judges to act as a bulwark against overbearing statism? Why have they simply rolled over when it comes to a draconian policy like this?

Yet these same critics should remember that whatever the judges’ reasons for not intervening, it is absolutely correct that human rights judges should stay out of this matter. The concept of human rights, as something above and beyond ordinary law, only makes sense if we limit those rights to really serious matters – state torture or murder, for example, or random house-to-house searches by paramilitary police at three in the morning – which no decent state should ever be allowed to practise and remain in the pale of civilisation.

Only something that drastic can justify what is done with human rights claims: namely, elbowing aside democracy and leaving the question in the hands of a corps of cosmopolitan adjudicators drawing salaries from the Council of Europe but explicitly owing professional allegiance to neither country nor culture within that continent. The further human rights transcend this limit, the louder, and the more justified, the calls for the UK to abandon the entire scheme of the European Convention and start over again.

Compulsory vaccination, especially where enforcement is limited to a fine for failing to show up, rather than arrest followed by forcible administration, comes nowhere near this level. Indeed, anyone but a human rights lawyer would wonder how anyone could think it infringed a right to either private life or freedom of thought in the first place. (Under Strasbourg practice it actually does, but the story of the gentle expansion of those concepts is for another time).

To any dispassionate observer, it is simply a matter of social policy that should, like all such matters, be sorted out in the rough and tumble of a democratic polity. If the Czechs don’t like the way they have been dragooned into an intrusive public health state, it is for them to vote it out. Conservatives in the Czech Republic should now be massing to persuade them to do just that, preferably with the strong moral support of conservatives in other countries such as Britain.

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