John Waters

The Minister for Health, Stephen Donnelly, in common with several of his colleagues and more than one journalist, needs to read up on the law. 

It has come to my notice that, on the Pat Kenny Show on Newstalk on, I believe, Tuesday February 3rd, you responded to a question from Mr Kenny in a manner that suggested you are intent upon not merely breaking the law but bringing the law into disrepute. 

In an interview concerning vaccines, Mr Kenny asked you:

‘A final question: the vaccine rollout; lots of people getting vaccinated, 200,000 so far…. Is there a software system to record vaccinations, because the time might come when you might have to prove to various people that you are vaccinated before you can do action a, b or c. ‘

You replied: ‘Yes there is. Hundred per cent.’

PK: ‘And it’s working?’

There was here a strange, two-second, pause on the line.

‘Yeah,’ you responded presently. ‘Yeah. It is.’ A hint of impatience in the second ‘yeah’.

PK: ‘Y’know, access for GPs, pharmacists et cetera. When that time comes they’ll all have access to it? So that there will be a database saying that Pat Kenny or Stephen Donnelly is vaccinated?’

Another strange, perhaps three-second pause. 

‘Yes there will, yeah.’

You may be unaware, Minister, that, towards the end of last month, the Council of Europe decreed that vaccines must not be mandatory and those who do not wish to be vaccinated must not be discriminated against.

This resolution requires all member states to: 

‘ensure that citizens are informed that the vaccination is NOT mandatory and that no one is politically, socially, or otherwise pressured to get themselves vaccinated, if they do not wish to do so themselves;

‘ensure that no one is discriminated against for not having been vaccinated, due to possible health risks or not wanting to be vaccinated;’

The resolution was adopted by the Parliament of the Council on January 27th. The Parliamentary Assembly of the Council of Europe incorporates EU members and also some non-EU members such as Russia, Turkey, Belarus, Azerbaijan and Ukraine. For the avoidance of doubt, the Parliamentary Assembly of the Council of Europe has no connection with the EU, but is an international body of which the European Court of Human Rights is a part, and of which Ireland is a member. 

The website of the Department of Foreign Affairs has this to say about the Council of Europe:

‘Its activities in the human rights field, as well as the impact it makes in fostering democracy and the rule of law in Europe, are consistent with Ireland’s approach to international affairs.’

‘We co-ordinate our engagement with the Council of Europe with other Government Departments, particularly the Department of Justice and Equality.’

On the European Court of Human Rights, the website has this to say:

‘The European Court of Human Rights helps protect all of our fundamental freedoms by allowing anyone to take a case to it if they believe one of their fundamental rights, as enshrined in the European Convention on Human Rights, has been violated.’

‘The European Court of Human Rights, is based in Strasbourg. It hears applications from both individuals and member states on alleged breaches of the Convention. It is of particular importance to Ireland, given the vital role it plays in safeguarding fundamental rights. Ireland has also strongly supported efforts in recent years to reform and improve the working methods of the Court.

In is established under European law that medical treatment against a person’s will is an interference with the right to private life.

The protection of private life under Article 8 of the European Convention on Human Rights (ECHR) encompasses a person’s physical and psychological  integrity. A person’s body is an intimate aspect of his or her private life (see Y.F v Turkey) and a sound mental state is an important factor for the possibility to enjoy the right to private life (see Bensaid v UK para 47). 

Measures which affect a person’s physical integrity or mental health have to reach a certain degree of severity to qualify as an interference with the right to private life under Article 8 (see Bensaid v UK, para 46). However, the Court has also held that even minor interferences with a person’s physical integrity may fall within the scope of Article 8  if they are against the person’s will (see Storck v Germany, para 143).

As far as physical integrity is concerned, the right to private life comes into play when the interference does not reach the threshold required to qualify it as torture or inhuman treatment, which are expressly forbidden by the Convention.

Administering medicine or performing medical treatment against the will of the patient interferes with the right to private life. To be justified, it has to be based on a law and be ‘necessary in a democratic society’.

To deny people basic human or civil rights because they seek to defend their bodily integrity against an untested vaccine is tantamount to the mandating of said vaccine. That would be illegal, Minister. Since your Government has flouted the law under many headings for many months, this may cause you no more than a couple of seconds’ pause for thought. But the reckoning is coming. There is no escape. It’s later than you know. 

John Waters