The clock is ticking to the introduction of Scottish vaccine passports.

At the start of October nightclubs, indoor gigs for 500 unseated people, and football matches with crowds of more than 10,000 amongst other things will require all customers to be double vaccinated and be able to prove it.

With the combined majority of the SNP and the Green Party, the Scottish Parliament approved this proposal earlier in the month despite every other political party opposing it. It was only yesterday though that the First Minister provided a legal definition for nightclubs that will appear in the vaccine certificate regulations which have not yet been published. 

READ MORE: Nightclub bosses launch legal action over Scotland's vaccine passport plans

This announcement may have been the spur to launch a legal action that could stop the clock on the vaccine passport D-day.  The Night Time Industries Association (NTIA) today stated that “regrettably” they are raising an action in the Scottish Courts.

On what basis legally could these proposed laws be challenged?  Technically as the passports will be introduced by regulations drawn up by the Scottish Government the Scottish Courts have the power to overturn them completely if they believe them to be unlawful.  So the stakes are very high.

One of the key phrases here is “proportionate”.  One of the reasons that Nicola Sturgeon gave for lifting most of the lockdown restrictions in August despite the virus still being prevalent in society was it would be disproportionate to keep limits on the Scottish people’s human rights.  As death rates and infections fell, the lockdown had to go.

Indeed “proportionality” has been discussed already in the Scottish Courts this year regarding our lockdown. A coalition of churches successfully challenged the limits on religious gatherings. In an action of judicial review, Lord Braid ruled that the regulations breached the human right of the freedom of religion in a disproportionate way. That means the laws as they stood then were over the top given the state of the pandemic and the importance of people accessing religious worship.

The significance of this ruling was lost somewhat as the restrictions on church services were being lifted anyway due to the easing of lockdown a matter of days after the Court issued its judgment. 

For the courts to delay or block vaccine passports almost before they even begin would clearly have a different level of significance. However,  there are difficulties in this legal action.

If NTIA bring a judicial review on the basis of rights being breached the first question would be which rights? There is no legal human right to go dancing, sadly. However, there could be an argument that restricting nightclub activity affects the human’s right to a private life. Also, it could be said that this activity is being targeted unfairly as compared to other activities – for example, pubs and restaurants.

So is it proportionate to require customers of nightclubs to be double vaccinated and pass over their medical data and does it breach their right to privacy? This is particularly significant as it is not being applied across the board in a full lockdown scenario.

Another dimension which seems to be emphasised by NTIA is the lack of consultation with the Scottish Government on this scheme.  This is very significant because another ground that could be argued under judicial review is that proper procedures were not followed when drafting the law.  If consultation was minimal or absent a case could be made that the law has not been properly drawn up and as a result, the vaccine passports could be overturned.

During the last eighteen months there was a lot of talk of potential legal actions brought by businesses as restrictions changed in detail, most of these came to nothing. Now as we are out of full lockdown the targeted vaccine passports plans backed by the Scottish Parliament form the basis for a clear court action. Time may be running out but there is definitely the potential for more legal delay.

Dr Nick McKerrell, Senior Lecturer in Law. Glasgow Caledonian University.