united-kingdom scotland
What constitutes a &quot;proportionate means of achieving a legitimate aim&quot; in the Equality Act?
<p>Recently, an amendment was made to <a href="https://www.legislation.gov.uk/ssi/2021/277" rel="nofollow noreferrer">The Health Protection (Coronavirus) (Requirements) (Scotland) Regulations 2021</a>, which requires particular venues to check that their customers are fully vaccinated, or have an exemption from a given list.</p>
<p>The <a href="https://www.legislation.gov.uk/ukpga/2010/15/contents" rel="nofollow noreferrer">Equality Act 2010</a> makes it illegal to indirectly discriminate against someone due to a protected characteristic, unless it is a &quot;proportionate means of achieving a legitimate aim&quot; (or falls within some other prescribed cases). Some of these characteristics (such as &quot;religion or belief&quot;) are not included in the exemptions, however, could be the reason somebody is not vaccinated.</p>
<p>What constitutes a &quot;proportionate means of achieving a legitimate aim&quot;? Would one have to look at the aims of the new legislation to decide if excluding some patrons is a &quot;proportionate means of achieving a legitimate aim&quot;? 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 &quot;legitimate aim&quot; in itself?</p>

<blockquote>
<p>What constitutes a &quot;proportionate means of achieving a legitimate
aim&quot;?</p>
</blockquote>
<p>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.</p>
<blockquote>
<p>Would one have to look at the aims of the new legislation to decide if
excluding some patrons is a &quot;proportionate means of achieving a
legitimate aim&quot;?</p>
</blockquote>
<p>Yes.</p>
<p>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.</p>
<p>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).</p>
<p>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 &quot;proportionate means of achieving a legitimate aim&quot; requirement of the Equality Act of 2010, particularly if it isn't targeted as something that only people in a protected class need.</p>
<p>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.</p>
<p>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.</p>
