After a long time swinging between various positions the UK Government has decided not to impose a vaccine passport scheme in England- though they have kept the potential to introduce one if necessary later in the year. In other parts of the UK however, the situation is different. Both Scotland and Wales have introduced measures to mandate the carrying and display of vaccine passports for those visiting nightclubs or attending large-scale events.

As with many Covid measures, the decision has not been universally welcomed. In Scotland, the Night Time Industries Association Scotland, a representative for nightclubs have launched a legal challenge against the proposals arguing that the Scottish Government conducted insufficient consultation and engagement with stakeholders before implementing the scheme.

In addition to concerns over the lack of engagement, there are also worries that the definition used in the legislation, intended to apply to the 100 nightclubs in Scotland, might be sufficiently broad to catch nearly 2000 other venues too, leading to establishments having to turn people away for not having the right information.

The judicial review claim in Scotland could be very interesting. The measures were not formally consulted on in the usual manner, though the Government claims it continues to work with business on the proposals. Of course, it’s not the first time we’ve seen a cases such as this in the courts (though the others were in England), and the courts have generally taken the approach that consultation is important, even if it is not in the usual forms.

There may however be a distinction between those cases and this one. Those cases all revolved around decisions taken at the height of the pandemic when decisions needed to be made very quickly, and there was not time for full-length consultation and engagement. It is possible however that a decision on vaccine passports might be viewed quite differently. This was not a decision that needed to be made in short time- it has been clear for a long time that these sort of schemes might be necessary- so why did the Scottish Government not consult properly on it? Even if it was not a complete full-length consultation, there was ample time to conduct one of the slightly truncated formal exercises that have become commonplace over the pandemic.

It may well be that the Court of Session does not consider this distinction sufficiently significant to distinguish it from the principles articulated in the earlier case (Particularly Article 39), but it may serve as an interesting measure of when judges feel the need to put their foot down on this kind of decision-making taken. Last week, the Institute for Government published their Parliamentary Monitor 2021 paper, looking at the state of the legislature this year, and making a clear call for the Government to “drop its dismissive approach to scrutiny”.

It’s a call we can only agree with, and we do wonder if the vaccine passport issue might be a key turning point. Part of this return and fulfilment of scrutiny must be the return to more complete and proper consultation and engagement, and it should become unacceptable to be undertaking the sort of exercises we’ve seen during Covid, which whilst they have been loosely compliant with the principles of consultation, have not been what we would expect in normal times. Whether the Scottish judges distinguish the case from previous examples or not, this return should come as soon as possible.