Peters (R on the application of) v The Secretary of State for Health and Social Care

The court held that regulations preventing unvaccinated workers from entering care homes were not arguably ultra vires. They did not compel medical treatment: individuals retained the choice whether to be vaccinated, subject to the employment consequence of being unable to work in a care home unless exempt. The specific powers in the Health and Social Care Act 2008 were capable of authorising the measure and were not displaced by the general prohibition in the Public Health (Control of Disease) Act 1984. Challenges based on inadequate inquiry, irrationality, Articles 8 and 14 of the Convention, and alternative policy choices were unarguable. The Government had a broad discretion in making a high-level public health decision supported by scientific evidence.

Two linked renewed applications sought permission to challenge the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, particularly regulation 5(3)(b). The provision prevented a person from entering care-home premises unless vaccinated with an authorised vaccine or exempt for clinical reasons.

Julie Peters and Nicola Findlay, who worked in care homes, advanced five grounds concerning vires, inquiry and relevant considerations, irrationality, and Convention rights. Dr Fairburn advanced overlapping vires and irrationality grounds and also faced an issue as to standing. The central questions were whether the regulations unlawfully mandated vaccination, exceeded the statutory powers, or were unlawful on public-law or Convention grounds.

1. Permission refused. None of the grounds in either claim was arguable.
2. Regulation 5(3)(b) did not mandate vaccination. It preserved individual autonomy while attaching a consequence to the choice not to vaccinate: exclusion from work in a care home unless an exemption applied. Section 45E of the Public Health (Control of Disease) Act 1984 was therefore not engaged. Alternatively, the specific powers in sections 20 and 161 of the Health and Social Care Act 2008 prevailed over the general provision in section 45E. The Convention could not be used to create a different reading of the statutory scheme (paras [6]-[12], [32]).
3. The challenges to the Government’s evidence-gathering and policy choices were substantially the same as the irrationality challenge. The Government had evidence that vaccination among care-home workers was incomplete, scientific advice concerning the vulnerability of care-home residents, and a legitimate choice whether to regulate individual workers or care homes. It was entitled to treat the relevant dual vaccination threshold as a minimum floor rather than a ceiling. The evidence concerning the duration and extent of natural immunity did not require an exemption. These were high-level political and social choices within a broad governmental discretion, as illustrated by Dolan and SC (paras [13]-[25], [33]).
4. The Article 8 challenge was unarguable. By analogy with Vavřička v Czech Republic, preventing unvaccinated workers from working in care homes did not establish a breach. In any event, protecting the lives of vulnerable care-home residents supplied weighty justification, and the Government enjoyed a wide margin of discretion. Article 14 added nothing material; any indirect discrimination was in any event justified in the pandemic context (paras [26]-[30]).
5. Dr Fairburn lacked standing. He was vaccinated, did not work in care homes, and was affected only indirectly through his consultancy work. Permission was refused in his claim also (paras [34]-[35]).

Not stated in the judgment.