Policy paper: Proposal for mandatory COVID certification in a Plan B scenario

Introduction

This document fulfils the commitment, set out in the Autumn and Winter Plan, to provide organisations with more detail about the proposed certification regime that would be introduced as part of Plan B.

The government invites feedback on these proposals. A call for evidence runs until 11 October.

Autumn and Winter Plan

The COVID-19 Response: Autumn and Winter Plan 2021, published on 14 September, sets out the government’s aims to sustain the progress made and prepare the country for future challenges, while ensuring the National Health Service (NHS) does not come under unsustainable pressure during this period.

The government plans to achieve this by:

• building our defences through pharmaceutical interventions: vaccines, antivirals and disease modifying therapeutics
• identifying and isolating positive cases to limit transmission: test, trace and isolate
• supporting the NHS and social care: managing pressures and recovering services
• advising people on how to protect themselves and others: clear guidance and communications
• pursuing an international approach: helping to vaccinate the world and managing risks at the border

If the data suggests the NHS is likely to come under unsustainable pressure, the government has prepared a Plan B for England. Given the high levels of protection in the adult population against COVID-19 by vaccination, relatively small changes in policy and behaviour could have a big impact on reducing transmission, bending the epidemic curve and relieving pressure on the NHS. The government’s Plan B prioritises measures which can help control transmission of the virus while seeking to minimise economic and social impacts. This includes:

• communicating clearly and urgently to the public that the level of risk has increased, and with it the need to behave more cautiously
• introducing mandatory vaccine-only COVID-status certification in certain settings
• legally mandating face coverings in certain settings

The government would also consider asking people once again to work from home if they can, for a limited period. The government recognises this causes more disruption and has greater immediate costs to the economy and some businesses than the other Plan B interventions. A final decision would be made based on the data at the time.

What this policy statement is for

If Plan B is implemented, it could be at short notice in response to concerning data. In the Autumn and Winter Plan, the government committed to publishing more details about mandatory vaccine certification. This policy statement sets out detailed proposals on certification, so that organisations and individuals can understand the policy and can prepare their own contingency plans should mandatory certification be implemented. The government would seek to give businesses at least one week’s notice before mandatory vaccine certification came into force. The government would also provide detailed guidance on the operation of the policy.

The government set out its intention that vaccine certification could form part of a Plan B, however, final decisions on the policy have not been made. The government invites responses on these proposals. The government is particularly interested in views from businesses, event organisers and venue operators, including from those that have experience of requiring certification on a voluntary basis over the summer and on the proposals for the workforce.

The government invites submissions of evidence and is also engaging with stakeholder representative groups. This opportunity for engagement will enable the government to take into account relevant comments and views, making any warranted revisions. The government is asking for responses by 11 October, although we encourage stakeholders to submit views as quickly as possible in case there is a need to introduce certification, as part of Plan B, at short notice.

Context

Under Plan B, in certain settings:

• mandatory vaccine-only certification could be introduced for all visitors aged 18 or over
• members of the workforce aged 18 or over in these settings could then be required to test regularly, if they are not fully vaccinated

This would mean that adult visitors would need to be fully vaccinated to access the settings in which certification is required. There would be a small number of exemptions for medical reasons and for those on clinical trials. In order to allow workforce participation in these settings, government proposes that the unvaccinated adult workforce in certified settings would be required to undergo regular testing. The government will further explore this proposal with relevant stakeholders.

The government intends to take a proportionate approach, balancing the impact on public health with the economic and social impacts. The policy would be focussed on settings where crowds mix and come into close contact. Mandating vaccine-only certification could allow settings that have experienced long periods of closure to remain open, and is preferable to closing venues entirely or reimposing capacity caps or social distancing.

If introduced, the government expects that mandatory vaccine-only certification would be introduced for the following venues and events:

• all nightclubs and other venues open after 1am with alcohol, music and dancing
• indoor events with 500 or more attendees where those attendees are likely to stand and mix to a significant degree, or move around during the event, such as music venues or large receptions
• outdoor, crowded settings with 4,000 or more attendees where those attendees are likely to stand, or move around during the event, such as outdoor festivals
• any settings with 10,000 or more attendees, such as large sports and music stadia

The government hopes that it would not be necessary to mandate vaccine certification more widely than these settings, though as the Autumn and Winter Plan explained this cannot be entirely ruled out.

There are some settings that would be exempt from requirements to use certification, including communal worship, wedding ceremonies, funerals and other commemorative events; guidance on minimising risk in these settings will be provided. Free, unticketed outdoor events in public spaces, including street parties, protests and mass participation sporting events, would also be exempt.

The NHS COVID Pass (accessible via the NHS App and NHS.UK and letter via NHS.UK or by calling 119) is already available as a tool that organisations in England can use to help limit the risk of transmission in their venues and events. More than 200 events and venues have made voluntary use of the NHS COVID Pass, and the government continues to encourage venues to use voluntary certification to keep their customers safer.

At present, the NHS COVID Pass displays an individual’s COVID status on the basis of vaccine, test or natural immunity status. If mandatory certification were introduced, the NHS COVID Pass would switch so that it certified individuals based on vaccine status only. Organisations which are out of scope would continue to be able to accept testing as a voluntary measure, but would need to accept alternative methods (such as emails or text messages) as confirmation of a negative test result.

Benefits of vaccine certification

The government carried out a review into COVID-status certification earlier this year. The COVID-Status Certification Review: Report, concluded that COVID-status certification could provide a means of keeping events going and businesses operating if needed over the autumn and winter.

Vaccines reduce the likelihood of someone becoming infected, and, therefore, vaccine certification reduces the risk of onward transmission if an infected person does enter a venue. Vaccination also reduces the chances of someone who is infected being hospitalised or dying.

Allowing negative test results for COVID-19 certification does provide some assurance that an individual is not infectious when the test is taken, and for a short time afterwards. The proposal is therefore that the workforce would be able to vaccinate or test under supervision so that those who choose not to be vaccinated are not prevented from participating in the workforce. The window of protection declines rapidly after the test is taken and regular testing would therefore be needed.

Settings where certification would apply

If introduced, the government expects that mandatory vaccine-only certification would be introduced in the following settings:

• nightclubs, dance halls and discotheques: all nightclubs, dance halls and discotheques would be in scope. In addition, any other setting that shares specified characteristics with these venues would also be in scope. This would be determined by a setting meeting all of the following criteria:
  • is open between 1am and 5am
  • serves alcohol during this period
  • has a dance floor or space for dancing to be used by members of the public
  • provides music for that dancing
• indoor events with 500 or more attendees: events at indoor settings with 500 or more attendees where attendees are likely to stand or move around and where these attendees have not been allocated seating
• outdoor events with 4,000 or more attendees: events at outdoor settings with 4,000 or more attendees where attendees are likely to stand or move around and where these attendees have not been allocated seating
• very large events with 10,000 or more attendees: events at settings with 10,000 or more attendees, irrespective of how many attendees are seated

Rationale

The proposal on the settings where certification would apply is based chiefly on public health evidence, including from the Scientific Advisory Group for Emergencies (SAGE) and the Events Research Programme (ERP). The highest risks of transmission are associated with indoor settings, particularly those which are poorly ventilated and unstructured where people are likely to mix in close proximity, and settings where people engage in energetic activity, including dancing, shouting and singing.

A fair and rational balance needs to be struck between public health impact and proportionality. The attendance thresholds included in the proposal are broadly related to the relative riskiness of the activity. This would help to reduce economic disruption and disproportionate burdens, such as door checks, on smaller venues. In very large settings (that is 10,000 or more attendees), although the evidence shows that seated activities are less risky, there is likely to be an additional risk of crowding, for example on public transport outside the venues or at pinch points within the venues. The impact of a super spreader event on the community would also be greater where a higher number of people are infected. Any setting with 10,000 or more attendees would therefore be included.

Nightclubs, dance halls and discotheques

Nightclubs, dance halls and discotheques would be required to implement certification when hosting indoor events, irrespective of the number of attendees. In line with the 4,000 attendee threshold the government proposes for outdoor events, however, nightclubs, dance halls and discotheques would be able to hold outdoor events with fewer than 4,000 attendees without requiring certification.

Other venues that share specified characteristics with nightclubs would also be required to implement certification when they meet all of the following criteria:

• are open between 1am and 5am
• serve alcohol during this period
• have a dance floor or space for dancing to be used by members of the public
• provide music for that dancing

Where these venues do not meet all of these criteria, they would not be required to implement certification. For example, a bar would not have to implement certification if it closed before 1am, ceased serving alcohol by 1am, turned off its music for dancing, or closed its dancefloor or any other space for dancing.

Nightclubs, dance halls and discotheques would no longer be required to implement certification if they closed their dancefloors or turned off their music for dancing. For example, a nightclub would no longer be required to implement certification if it repurposed as a bar by covering its dancefloor with tables and chairs.

Where any venues described above host activities that are seated (with a capacity under 10,000), they would not be required to implement certification for those activities. A nightclub hosting a seated concert with fewer than 10,000 attendees would therefore not be required to implement certification for that concert.

There would also be exemptions provided for these venues when hosting dance and exercise classes, ballroom dancing, and specific performances and rehearsals.

If a nightclub or venue with nightclub characteristics is situated within a larger venue, but can be separated from the rest of the venue such that attendees at the larger venue can be segregated from those attending the nightclub, certification requirements would only apply to the nightclub at all times, and certification checks could therefore be carried out at the entrance to that part of the venue.

All other in-scope events

For all other settings, certification would only apply where a venue is hosting an event that meets the attendance threshold.

Day-to-day activities in certain venues would not be captured, and certification requirements would only apply if they were hosting events exhibiting the criteria that require certification. For example, a museum would not be in scope for certification unless hosting an event such as a reception, ball or performance in which 500 or more attendees were standing or moving around. Only those attending the event would be required to show an NHS COVID Pass. As long as a venue could separate those attending the event from the rest of the venue, other people in the venue would not be required to show an NHS COVID Pass. An indoor conference would not meet the requirement for certification if it hosted fewer than 500 attendees or ensured that attendees were seated for the duration of the event and did not host any unseated activities (such as a drinks reception) as part of the event.

Indoor events with 500 or more attendees

Events at indoor settings with 500 or more attendees would be required to implement certification where those attending the event are likely to stand or move around during all or part of the event. This would not include where someone only leaves their seat to go to the bathroom, obtain food or drink, or leave the event.

Settings would be regarded as ‘indoor’ based on the definition provided by existing Smoke-free (Premises and Enforcement) Regulations 2006.

Outdoor events with 4,000 or more attendees

Events at outdoor settings with 4,000 or more attendees would be required to implement certification where those attending the event are likely to stand or move around during all or part of the event. As per indoor events with 500 or more attendees, this also would not include events at outdoor settings where someone only leaves their seat to go to the bathroom, obtain food or drink, or leave the event.

Very large events with over 10,000 or more attendees

Events at settings with 10,000 or more attendees would be required to implement certification, irrespective of how many of these attendees were standing.

Exempt events

If introduced, a number of events would be exempt from mandatory certification requirements. These would be:

• communal worship, wedding and civil partnership ceremonies and equivalents (including alternative wedding ceremonies), funerals, and commemorative events
• wedding receptions and other significant life-cycle events (such as a bar and bat mitzvah, mehndi ceremony or christening)
• outdoor events in public spaces where these are unticketed and not charged for (such as street parties, protests, carnivals and marathons)
• events in private dwellings (including private gardens) where these are unticketed and not charged for

Attendance thresholds

Under these proposals, whether a venue or an event would be required to implement certification would depend on the specific characteristics of the setting. If a venue hosted an event where the number of attendees was below the relevant thresholds, or where the design of the setting (in the case of indoor settings with 500 or more attendees or outdoor settings with 4,000 or more attendees) was altered, such as by operating a seated event, then certification would not be required.

For attendance thresholds specifically, a venue would need to decide ahead of an event whether or not it would limit attendees to below the relevant threshold. If it was not implementing certification, it would need to ensure that the attendance thresholds were not exceeded at any point during the event. For example, a venue could host an outdoor event with 4,000 or more attendees throughout the day without requiring certification but would not be able to permit 4,000 or more attendees at any one point during the course of the event.

For indoor settings with 500 or more attendees and outdoor settings with 4,000 or more attendees, only those standing would count towards the attendance threshold.

For multi-day events, the attendance threshold for the event would be determined by how many attendees were inside the venue at any one point, rather than during the course of the day or over the course of several days. For example, a 3-day indoor event with 1,000 attendees in total would not be required to put in place certification if it ensured there were never 500 or more unseated attendees at the event at any point in time.

Those working or providing services at an event or venue would not be counted towards the attendee limits for any type of venue.

Proposal for workforce requirements

If mandatory certification is introduced, the government’s current proposal is that every person aged 18 or over providing services in person in venues where certification would be expected to either be:

• fully vaccinated
• exempt (for medical reasons, or as a result of clinical trial participation in a COVID-19 vaccine trial)
• undertaking regular, supervised testing

The government will further explore this proposal with organisations, business representative organisations, and unions.

Under the government’s proposal, operators of venues or events should check the vaccination status of their workforce who are not regularly testing. They should use the NHS COVID Pass to confirm that they are vaccinated or exempt. The operator would be the person responsible for organising that event or the person responsible for the management of the premises in which the event is to be held (as relevant). Where a member of the workforce was vaccinated or exempt, responsible persons would only need to check their status when they first entered the venue, not each time they attend work.

The government proposes that members of the workforce who were not vaccinated or exempt could instead test regularly. Before they provide any services at the event or venue, the workforce could complete a supervised test and receive a test result. Testing would need to be completed within 72 hours of the start of any shift.

Under these proposals, those organising events would be required to nominate or appoint supervisors to oversee testing for those who are not vaccinated or exempt. Tests could be supervised remotely or in person, within the venue or at another place. Supervisors would not be expected to practically assist workforce testing, but to monitor that those being tested are following the manufacturer’s instructions and a valid and negative test result is received. Supervisors could be from the same businesses as the responsible person or from another appropriate company. Where test supervision was delegated, the organiser of the event would be responsible for ensuring that reasonable measures were taken to ensure that the appointed person monitored each member of the workforce who is required to take a test. Reasonable measures could include contracting an organisation to supervise tests, instructing an appointed person to supervise the testing, spot checking that supervision was being completed or maintaining records of supervision.

Lateral flow devices (LFDs) can currently be ordered at no cost from NHS Test and Trace. Tests are also offered free of charge at many local pharmacies. The COVID-19 Response: Autumn and Winter Plan 2021 highlighted that, at a later stage, as the government’s response to the virus changes, universal free provision of LFDs will end, and individuals and organisations using the tests will begin to bear the cost.

Who would have to show the NHS COVID Pass

Should mandatory certification be introduced, all visitors aged 18 and over to places where certification was required would have to demonstrate their vaccination status, using the NHS COVID Pass or overseas equivalents, as a condition of entry. They would have to be fully vaccinated or exempt.

Individuals are fully vaccinated when they have completed a course of doses of a UK-authorised and licensed vaccine and after a period of 14 days has passed since the final dose. At this point in time, the government expects that booster jabs would not be required in order to be considered fully vaccinated.

Anyone under 18 years of age would not be required to demonstrate their vaccination status. Individuals under 18 may not commonly have ID and therefore would not need to show proof of age.

There are a small number of other individuals that would not have to demonstrate vaccine status to enter places where certification is in use should the policy come into force, although they may be asked for proof of identification. These would include:

• police officers acting in their official capacity
• local authority officers and emergency services responders attending in their official duties
• a diplomat or someone working for an international organisation

The following groups of individuals are exempt from vaccination:

• UK COVID-19 vaccine clinical trial participants and vaccine clinical trial participants who have taken part in a clinical trial in another country whose proof of participation is recognised for UK border purposes
• the small proportion of people who should not be vaccinated for medical reasons, whose exemption has been clinically reviewed

Those who are exempt from vaccination, either through participation in a clinical trial or on medical grounds, can obtain a domestic NHS COVID Pass that is indistinguishable from the domestic NHS COVID Pass that is already available to those who are fully vaccinated. This means that the person checking the NHS COVID Pass would not be able to identify whether an individual was fully vaccinated or exempt from vaccination, just that they were certified through the NHS COVID Pass. We will set out further details on how individuals should apply for medical exemptions and how these will be clinically reviewed shortly.

Some conditions may lead to an exemption when the condition is severe, but not in less severe cases. Each application for exemption will therefore be reviewed by the clinician providing an individual’s care. Examples of conditions which indicate exemption include those with severe allergy to all COVID-19 vaccines, those with learning disabilities and those who had an adverse reaction to the first dose of the vaccine. Time-limited exemptions would also be available for those with short-term conditions. Individuals should only apply for a medical exemption if they have a genuine medical reason – not just because they are averse to getting vaccinated.

Proof of certification

The NHS COVID Pass enables individuals to share their COVID-19 vaccination and exemption status in a secure way. Only minimal personal data is shared with a venue when using the NHS COVID Pass. This will only include a name, date of birth and COVID status.

The NHS COVID Pass is available through the NHS App, the NHS.UK website, or through a letter that can be issued via NHS.UK or by calling 119.

The NHS COVID Pass can be checked visually or scanned using the NHS COVID Pass Verifier app. The verifier app enables venues to validate a customer’s COVID-19 status by scanning the 2D barcode presented on the NHS App, on a pass that has been downloaded to a smartphone wallet or the PDF download.

Devolved administrations and Crown Dependencies

These proposals would apply to England only. Health is a devolved policy. The devolved administrations in Scotland and Wales have already announced their own policies on certification.

The NHS COVID Pass is available for residents in England, Wales, and the Isle of Man.

Residents of Scotland, Wales and Northern Ireland can currently demonstrate vaccination status through a letter with the 4 health authority logos or via the digital solution in their home nation.

Vaccination proofs from other Crown Dependencies and Overseas Territories will be accepted for the purposes of mandatory vaccine certification in England.

International vaccination proof

Some vaccination proofs for international visitors are accepted at the UK border. These vaccination proofs would also be accepted for certification within England. The government is working bilaterally to extend the vaccination proofs accepted for international visitors for exemptions from quarantine. This will include proofs from:

• the EU (EU Digital COVID Certificate)
• the USA (the Centres for Disease Control and Prevention vaccination card)
• Australia
• Antigua and Barbuda
• Barbados
• Bahrain
• Brunei
• Canada
• Dominica
• Israel
• Japan
• Kuwait
• Malaysia
• New Zealand
• Qatar
• Saudi Arabia
• Singapore
• South Korea
• Taiwan
• the United Arab Emirates

If a visitor has participated in the United Kingdom vaccine roll-out overseas, they will be able to show proof of this. The government will provide guidance and examples for organisations to demonstrate the international vaccine proofs that are accepted. International visitors will be required to show their vaccination proof and ID matching the country in which they were vaccinated.

Currently only individuals with Medicines and Healthcare Products Authority (MHRA)-approved vaccines from the UK vaccination rollout can claim an NHS COVID Pass. UK residents vaccinated abroad will be able to demonstrate their vaccine status through the NHS COVID Pass from later in the year. A pilot will be rolled out in England from the end of September.

Proposal for enforcement

Should mandatory certification be introduced, venue operators would be expected to determine whether the event they were hosting fell in scope. Where an event they were hosting did fall into one of the in-scope categories, the government would expect certification to be put in place.

Venues or events, where there was the potential for attendee thresholds to be met and therefore for them to fall within scope of certification, would be required to either:

• limit visitors to the venue or event in order that it falls below that threshold
• check the vaccination status of all visitors

Businesses would be expected to produce, and keep up to date, a statement of their certification policy, setting out the measures they would introduce to ensure that they are meeting and implementing their certification requirements and to ensure the public were aware of these measures.

Events held in venues with capacities greater than the thresholds, but which limit their capacities and therefore do not apply certification, would need to evidence how they will avoid exceeding the thresholds.

Organisations would be expected to conduct 100% visual checks on attendees. However, while certification would be a legal requirement, if introduced, and would be designed to protect public health, the immediate safety of visitors and the workforce would always come first.

In some limited circumstances, the government recognises that it may not be reasonably possible for 100% visual checks of visitors’ COVID status to be carried out without endangering the safety of those attending the venue or event should mandatory certification come into force. In these cases, the responsible person may agree “reasonable measures” to check or spot check visitors’ COVID status with their local authority. Venues would also always be able to admit people to enter to avoid injury or escape a risk of harm (for example to address or avoid a medical emergency) without the need for certification checks.

Venues where certification was required would be expected to retain records containing the following information:

• the date of the event, or for a venue, the date to which the records relate
• the number of people attending the venue or event
• if they have departed from their statement of certification policy:
  • the reasons for so doing
  • the measures which were adopted on that occasion
  • how an individual’s eligibility to enter the venue was checked
• the number of occasions on which measures other than full checks were agreed with the local authority
• the number of occasions on which people have been permitted to enter the event or venue without the need for certification checks to avoid injury or escape a risk of harm

Records and statements would need to be retained for a period of 3 months. Local authorities would have powers to request these documents within 3 working days or as part of an inspection. Should mandatory certification be introduced, failure to meet requirements to apply certification (including through ensuring workforce testing is properly supervised, preventing thresholds being exceeded where not applying certification, and maintaining statements and records) would be an offence. A Fixed Penalty Notice (FPN) would be issued of £1,000 for the first offence, £2,000 for the second and £4,000 for the third offence. This would increase to a maximum of £10,000 if a person is in receipt of 4 or more penalty notices under these or other COVID regulations​.

Offences would also be established for individuals who make, adapt, supply or offer to supply false vaccination documentation. This would carry a penalty notice of £10,000. There would be no reduction in the penalty notice for early payment for this offence.

Under the mandatory certification regime, proceedings for an offence under these Regulations could be brought by a local authority or the Crown Prosecution Service.

If mandatory certification is introduced, local authorities would also have powers to issue Coronavirus Improvement Notices, Restriction Notices and Immediate Restriction Notices. Enforcement officials are familiar with using these notices for enforcing other COVID restrictions.

Improvement Notices would enable local authorities to require venues or events to make improvements to meet the requirements of the regulations within 48 hours. Failure to comply would result in the operators or organisers of these venues or events being issued a Restriction Notice, Immediate Restriction Notice, or penalty notice. Restriction Notices could be issued where a venue operator has failed to comply with the Improvement Notice, increasing the risk of exposure to COVID-19. A Restriction Notice could require the closure of the premises (or part of the premises) and/or require the contravention to end or be remedied. A Coronavirus Restriction Notice has effect for 7 days after the day on which it is issued.

Immediate Restriction Notices could be issued where requirements in the regulations are not met, and continued contravention is reasonably expected which would carry risk of exposure to COVID-19. Immediate Restriction Notices could also require the closure of the premises (or part of the premises) and/or require the contravention to end or be remedied. A Coronavirus Immediate Restriction Notice has effect for 48 hours after the time at which it is issued and would not require an operator to have failed to comply with an Improvement Notice ahead of issuing. Local authorities could also consider issuing a direction under the No. 3 Regulations if the failure to comply with mandatory COVID certification presents a serious and imminent threat to public health. See more information on the No. 3 Regulations.

These notices may be appealed to the Magistrate Courts within 28 days of issue or notification of the decision of the review in the case of an appeal in accordance with the Magistrates’ Courts Act 1980.

Regulations

If it is introduced, the government expects that certification would be implemented by making regulations under Section 45C of the Public Health (Control of Disease) Act, 1984. Following the powers set out in Section 45C, these regulations would be made to place requirements on people and settings for the purpose of reducing the public health risks posed by the spread of COVID-19.

If the data suggests the NHS is likely to come under unsustainable pressure, certification may need to be urgently introduced. It is likely that regulations would need to be introduced using the emergency procedure as set out in the Public Health (Control of Disease) Act 1984. In line with other nationally significant COVID legislation, we would seek to provide a vote in Parliament ahead of any regulations coming into force. This would be subject to the urgency of the situation and parliamentary timetabling. In any event, Parliament would need to approve any regulations made using the emergency procedure within 28 sitting days, otherwise they would cease to have effect. Any regulations to implement certification would include an expiry clause. The regulations could only be extended where they remained necessary and proportionate for responding to COVID-19. Any extension would require Parliamentary approval.

Source:  www.gov.uk/government/publications/proposal-for-mandatory-covid-certification-in-a-plan-b-scenario/proposal-for-mandatory-covid-certification-in-a-plan-b-scenario