The epidemic will not have spared political speech. Even less that of the President of the Republic. In an interview with the regional press on April 29, Emmanuel Macron detailed his progressive deconfinement plan. The health pass was presented by the Head of State as a simple “additional tool” to protect the French from Covid-19. “The health pass will never be a right of access that differentiates the French. It could not be compulsory to access the places of everyday life such as restaurants, theaters and cinemas ”, he assured at the time.
74 days later, in a televised address broadcast on Monday and faced with the rapid increase in cases of contamination due to the Delta variant, the tenant of the Elysee returned to his words without blinking. “Our choice is simple: to put the restrictions on the unvaccinated rather than on all. This is the meaning of the health pass that will be extended, ”he announced. Although expected, this extension nonetheless worries some legal professionals and elected officials.
What has Emmanuel Macron announced?
Established in France since June 9, the health pass has so far served as “proof” of non-contamination to access events bringing together more than 1,000 people, discos and dance bars accommodating more than 50 people or for certain trips in Corsica. or overseas. Compulsory from 11 years old, this pass was intended not to last and was to disappear as of September 30. But the Delta variant has changed that.
From July 21, the health pass – that is to say a negative PCR test, proof of Covid-19 contamination of less than six months or a complete vaccination certificate – will be mandatory to access ” places of leisure and culture ”(theaters, museums, cinemas, etc.) bringing together more than 50 people, from the age of 12. At the beginning of August it will be extended to cafes, restaurants, shopping centers, as well as to planes, trains or coaches making long journeys and to medical establishments (hospitals, retirement homes, etc.). This extension to other establishments open to the public requires the passage of a law and its promulgation.
Is it legal?
Without the details of the text to frame this extension of the health pass – it will be presented on July 19 in the Council of Ministers -, difficult to say, underlines the researcher and former professor of constitutional law Michel Lascombe. On the other hand, for the measure to comply with our Constitution, “there can be no general and absolute prohibition” for those who have not received the complete cycle of vaccination: “The government cannot say, for example, that unvaccinated people no longer have the right to access such and such a place. He must set gauges, time limits, etc. “
Seized last May by left-wing deputies at the end of the vote establishing the first version of the pass, the Constitutional Council had validated the device. In their decision, the Sages recalled that, in the text, leisure activities subject to the health pass excluded “political, union or religious activities”. A precision which is important, underlines Michel Lascombe: “It is a question of measure and proportionality between the risk to our fundamental freedoms and the danger that we seek to contain. It is not the same thing to infringe the freedom of worship and to infringe the freedom to go to the restaurant. The latter is not protected by the Constitution.
The other criterion, recalls this specialist, is that the executive must be able to “justify” the possible limitation of fundamental freedoms: “In this case, case law shows that the health situation remains accepted by the judges to justify these attacks. . “Contacted by AFP, the constitutionalist Dominique Rousseau estimated for his part that” from the point of view of the law “, establishing a broad health pass remained completely legal since the Constitution imposes on the State” the protection of public health “.
A decision rendered by the Council of State July 6, however, raises questions. Seized urgently by the association Quadrature du Net (QDN), the court rejected the suspension of the health pass, while the QDN feared “the use of sensitive personal data” (civil status, proof of vaccination status or results of test). However, to justify its decision, the judges relied on the fact that the pass was not requested for “daily activities”. For the constitutional expert and former magistrate Annabelle Pena, “the enlarged version then poses a legal problem: the question is whether this extension of the health pass does not disproportionately infringe a certain number of freedoms: the right to respect for life privacy and the freedom to come and go ”.
Why does this extension raise concerns?
Firmly opposed to the health pass, the centrist senator from Haute-Savoie, Loïc Hervé protested: “There are very worrying risks of drifts. We will entrust the prerogatives of public power to people who are not trained to do that. A bar owner who must control the identity and state of health of his customers through this extended pass, that poses a fundamental difficulty. We are falling into a world of social control. “
Beyond the fears relating to respect for the right to privacy, Annabelle Pena sees it as a “disguised vaccination obligation”. “The government does not hide it, the extension of the health pass aims to encourage vaccination. We are witnessing the establishment of a system of authorization prior to the exercise of freedom. “For this lawyer, this measure has resulted in an” inversion of the scale of values ”:” Until now, we exercise our freedom and the judge or the legislator can come to limit it exceptionally after. There, it’s the other way around. Freedom becomes the exception and prohibition becomes the rule. The crucial question will therefore relate to the framework of these measures, in particular over time.
And the debate could well shake the political class in the days to come. Polled by the Prime Minister last week, majority groups and Socialists said they were rather in favor of extending the pass. The LR group, on the other hand, had deemed it “inappropriate” in a letter to Jean Castex. In the corridors of the Senate, Loïc Hervé notes that positions on the subject are changing and the certainties of some of his colleagues are wavering. “Even though I feel like I’m very lonely, I don’t get discouraged,” he confides in 20 minutes. Those who told me a month ago, “You’re paranoid, this will not be generalized” are now telling me that they may have been naive. “