The one-size-fits-all Covid passport

Earlier this week, the High Court in the Basque Country ruled against the regional government’s wish to make the Covid certificate a requirement for gaining entrance to bars, restaurants, discos and concerts. The court was of the view that the government’s measure would violate fundamental rights. It concluded that the ends did not justify the means.

In announcing its judgement, the court stated that the fundamental rights being affected were “several and important”. Therefore, the government’s measure, namely the restriction of these rights, must “adequately observe different facets of the principle of proportionality”.

It went on to consider the situation with Covid in the Basque Country, the government having offered figures and infection data for the whole region. It was here that the judgement started to become particularly interesting, as the government was presuming that these figures and data were the same in all parts of the region.

The court determined that it could not be demonstrated that the figures were the same. Therefore, applying the same measure uniformly in the Basque Country could not be justified.

Before considering this uniform application, it might be noted that the ruling was by two judges’ votes to one. The judge who was in favour has previously been against Basque government measures. On this occasion, he was not.

In the absence of the Spanish government having adopted a nationwide approach to the use of the Covid passport (real name Digital Covid Certificate, as you will know if you have one), the fate of regional government measures is being decided by small panels of judges - three in the case of the Basque court, whereas there are typically five in the Balearics (as an example). And these judges are adopting what at times are fundamentally different positions on fundamental rights.

I don’t for one minute question the judgements of any of the judges in any of the regions, except to say that there seems to be a question as to how fundamental rights, constitutionally, can be defined. One judge thinks one way; another judge has an opposite view. And on top of what the judiciary concludes, there is another arm of the legal system which has its opinion - the offices of the prosecutors.

In the Basque Country, the Prosecutor’s Office was in favour of the government’s measure. Yet there have been occasions in the Balearics, including taking matters to the Supreme Court, when the Prosecutor’s Office has opposed the government, citing its role in defence of fundamental rights.

I’m not saying that the prosecutor in the Basque Country or the Balearics is any more or any less the defender of rights than the other; just that the prosecutors, like the judges, seem to interpret this differently. And it is an interpretation which is fundamental. Is there, or can there be, a universal, one-size-fits-all interpretation of fundamental rights?

The Covid passport and other Covid issues, e.g. the curfew, have raised this question possibly like never before. As a consequence, courts in the different regions of Spain are being asked to arbitrate on government measures that do have significant implications. And their decisions are by no means the same. In the Balearics, the high court has backed the use of the certificate for nightlife. If asked, it may also do for bars and restaurants. The court in Galicia has looked favourably on the certificate.

Decisions in Aragon, Catalonia and Navarre were pending at the time of writing in respect of what is a one-size-fits-all approach. The certificate was originally for travel. Now it’s for all manner of things.

But while there have been differences of opinion between regional courts, I am unaware of any of them having considered the use of the Covid certificate in quite the way that the Basque court has - uniformly across the whole region. In the Basque Country, the conclusion of the judges is basically that a one-size-fits-all application would be wrong in a geographical sense as well as anything to do with fundamental rights.

I don’t know that the same consideration would be made here - Mallorca is after all smaller than the Basque Country - but were it be, we can now easily see (thanks to a health ministry update) how vaccination is by municipality and so how the use of the Covid certificate could be.

For example, 84% of the target population in Pollensa is double jabbed. In Sa Pobla, this is higher - 86.5%. Yet in Alcudia it is 76.3%. The lowest rates are Banyalbufar 72.4%, Ses Salines 72.2%, Deya 60.9% and Escorca only 24.6%. The highest is Santa Maria with 89.3%. Calvia is 74.6% and Palma 81.4%.

Quite a variation, with some municipalities perhaps needing the “incentive” of the certificate, as it has been referred to, more than others.

A uniform approach to the application of the passport/certificate? A court says no. Avoidance of utter confusion, on the other hand, suggests yes.