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Recently, an amendment was made to The Health Protection (Coronavirus) (Requirements) (Scotland) Regulations 2021, which requires particular venues to check that their customers are fully vaccinated, or have an exemption from a given list.

The Equality Act 2010 makes it illegal to indirectly discriminate against someone due to a protected characteristic, unless it is a "proportionate means of achieving a legitimate aim" (or falls within some other prescribed cases). Some of these characteristics (such as "religion or belief") are not included in the exemptions, however, could be the reason somebody is not vaccinated.

What constitutes a "proportionate means of achieving a legitimate aim"? Would one have to look at the aims of the new legislation to decide if excluding some patrons is a "proportionate means of achieving a legitimate aim"? For example, Wales, which has similar new legislation, also allows a negative Covid-19 test in lieu of full vaccination. So some may say that Scotland's approach is not proportionate, as there are other measures to achieve the same aim that would not result in the discrimination. Alternatively, is complying with the new legislation a "legitimate aim" in itself?

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What constitutes a "proportionate means of achieving a legitimate aim"?

Proportionate doesn't mean exact in this context which implies a very global cost-benefit analysis. It means, at least of the same order of magnitude in significance.

Would one have to look at the aims of the new legislation to decide if excluding some patrons is a "proportionate means of achieving a legitimate aim"?

Yes.

The legitimate aim is preventing the spread of coronaviruses in order to prevent the negative consequences of ill health including death to people who are exposed to it.

The harm is not being able to go to the covered venues in person until one is vaccinated or exempt for some other reason (e.g. a recent prior infection from which quarantine has ended).

It is hard to imagine a Scottish Court or the U.K. Supreme Court, or the European Court of Human Rights concluding that this offends the "proportionate means of achieving a legitimate aim" requirement of the Equality Act of 2010, particularly if it isn't targeted as something that only people in a protected class need.

In particular, the language of the Equality Act referenced does not discuss a need for the law to be as narrowly tailored as possible to satisfy the Equality Act's requirements.

The regulations adopted seem to be subordinate to other legislation, so they probably don't trump the Equality Act, in and of themselves. I haven't carefully researched what the authorizing legislation for the regulations is, in part, because it isn't really necessary given the the regulations are clearly valid either way.

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  • Thanks for the answer. So a venue couldn't claim that simply complying with the new regulations is in itself a legitimate aim?
    – enpanelto
    Commented Oct 25, 2021 at 23:21
  • @enpanelto Governmental regulations are presumed to be valid. The venue must obey or sue to have them declared invalid. The "proportionate means of achieving a legitimate end" analysis is for a court considering a challenge to the regulations to which the venue would be only nominally or not a party, if it's not the plaintiff. In US practice, one would sue the head of the agency that enforces the regulation to test its validity, not the party subject to the regulation. I don't know how Scottish public law civil procedure is structured, but I doubt that the venue would be an important party.
    – ohwilleke
    Commented Oct 26, 2021 at 20:31
  • @empanelto You could not successfully sue the venue for following the regulations on the grounds that following the regulations violated the Equality Act. No proportionality analysis would be required.
    – ohwilleke
    Commented Oct 26, 2021 at 20:36
  • note that this is different scenario from mask requirements wherein the cabinet office published specific guidance on how businesses are to correctly apply the equality act for the purposes of honouring mask exemptions on the basis of the protected characteristic of disability. Commented Jul 23, 2022 at 9:55

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