Picture credit: Jorg Greuel/Getty
Artillery Row

Democracy contra the majority

What does democracy mean if it is not related to the popular will?

In June 2021, the Swiss electorate voted on a raft of measures under their system of direct democracy. Amongst the proposals was the revised CO2 Act, which set out Switzerland’s climate policy and the measures the Alpine nation would adopt to maintain its emission reduction targets as instructed by the Paris Agreement. New measures included, inter alia, a tax on air travel and a car fuel levy, alongside greater investment in green technology such as electric vehicle charging stations. By a margin of 52 to 48 percent (yes, that again!), the Swiss electorate rejected the proposal, and the government duly went back to the drawing board. Another successful execution of Switzerland’s unique system of popular initiatives — vox populi, vox Dei.

Then, last week, a verdict was reached at the European Court of Human Rights after four Swiss individuals and a Swiss association representing older women brought a claim against their government, arguing that the Swiss authorities had violated their human rights by failing to take sufficient action to mitigate the effects of climate change. The Court ruled in their favour on account of Article 8 — the right to respect for private and family life — which was interpreted as encompassing “a right to effective protection by the State authorities from the serious adverse effects of climate change on lives, health, well-being and quality of life”.

In essence, the Court ruled that by following through on the referendum result … the Swiss state had violated its own population’s human rights

The Court acknowledged that Switzerland’s climate strategy had been disrupted by the people rejecting the CO2 Act in the 2021 referendum and stated that a “legislative lacuna” had followed. A revised Act, which was confirmed in a referendum in June 2023, sets out “general objectives and targets but [not] the concrete measures to achieve those targets”. The Court concluded that in failing to devise, develop, and implement a relevant legislative and administrative framework, the Swiss authorities were not meeting the “positive obligations derived from Article 8”, and were therefore in violation of the European Convention on Human Rights. In essence, the Court ruled that by following through on the referendum result and dumping the CO2 Act’s measures, the Swiss state had violated its own population’s human rights.

Prominent British lawyer Jessica Simor KC, who represented the applicants, shared her delight following the verdict in a TV interview. She argued that Switzerland is “particularly problematic because they have referendums”, which pose an issue in relation to human rights due to “the conflict between this idea of democracy as just what the people choose, and democracy as entailing some fundamental and universal rights”. Simor is unambiguous on what side of the conflict she supports, adding: “democracy is not merely rule of the majority; it is also rule of the majority subject to some fundamental norms”.

The description of democracy given by Simor is by no means novel; the conflict between the majority will and the protection of minority rights and civil liberties has been a feature of liberal democracy since inception. It is not constitutionally unprecedented to have tension between judicial decisions and democratic verdicts. In legalese, it is known as the counter-majoritarian difficulty — the conflict that arises when judicial review contradicts an expressed majority will. But under the surface of Simor’s innocuous pronunciations on the importance of “fundamental norms” is a pernicious political tendency that aims to stop issues from being legitimately contested in a democracy, thereby disempowering electorates.

Spearheaded by a cadre of well-known lawyers and their supporters, this tendency seeks to use the courts, rather than electoral politics, as the vehicle for delivering social change. In a technique dubbed lawfare, groups such as the Good Law Project use litigation as a “tool for positive change”. Some issues are so complex and important that only the expert class, which they conveniently hold themselves to be a part of, should decide on them. It engages in a form of post-politics that posits there to be objectively correct courses of action, as dictated by the experts, where opposition is motivated by ignorance and emotion. Contentious political issues are reduced to technical matters; “How can you reasonably be opposed to a car fuel levy when the experts have concluded that it is good?”.

This worldview was directly attacked in Michael Gove’s infamous quip that “the people in this country have had enough of experts from organisations with acronyms saying that they know what is best”. Rather than heed the resonance of Gove’s statement as a sign that the balance between the expert class and public sentiment had been knocked out of kilter, the statement was mocked and vilified as an example of the pernicious threat the public could be to good governance. The subsequent victory of Gove’s Vote Leave campaign was not met with humility and introspection, but a doubling down on rule by the experts.

For Simor and her ilk, the lesson of Brexit was that the public were irredeemably prejudiced, ignorant, and above all, dangerous. Susceptible to misinformation as they were (remember the red bus?), the public could not be trusted to make such deeply consequential decisions, so attempting to persuade the peons of the righteousness of a given cause was a waste of time. Simor herself then took part in a concerted campaign to frustrate and thwart Brexit through the courts. In one such judicial appeal, the presiding Lord Justice Hickinbottom noted that the applicants “clearly oppose the UK leaving the EU”, adding that “the debate which the claimant seeks to promote belongs firmly in the political arena, not the courts”, He reiterated that “[j]udicial review is not, and should not be regarded as, politics by another means”.

Simor took no notice. In her view, “there is no bright line between politics and law” and “[judicial powers] are necessarily political because their proper application ensures the maintenance of freedom that forms the bedrock of a true democracy”.

With Brexit now largely a closed chapter, climate change is the latest cause célèbre to be taken from a democratically contested issue and elevated to a technical issue to be dealt with by experts. By its nature, climate change seems like the ideal problem to be solved through scientific objectivity and political neutrality, above the corruption, prejudices, and ignorance of democratic politics. 

Yet even if we assume that the scientists are correct in their prognosis, that their models of various future climate scenarios are accurate, it does not follow that there is only one scientific and apolitical course of action to be taken. Like any issue which encompasses so many aspects of life, there exist various legitimate competing interests that dictate what policies ought to be implemented. One might conclude that European states must reach emission neutrality within a few decades regardless of the high financial cost, or equally that the relatively minor contribution of European states to global emissions (the EU27 are responsible for 6.7 percent of global emissions, and Switzerland just 0.1 percent) means that trying to retard climate change is futile, with money being more effectively spent on mitigation measures. Elderly Swiss women may be better served if their government rolled out a program of free air conditioning units rather than disincentivising air travel, for example. 

what is democracy now except a government of, by, and for old Swiss women?

While the Swiss allowed their electorate to weigh up the pros and cons of any climate measures and conclude by democratic agreement, this latest ECHR ruling, based on a spurious reading of Article 8, means that it will now be the exclusive domain of the expert class, where the electorate have no democratic recourse to change path. Simor celebrated this as a victory for democracy and entrenchment of a fundamental and universal right, but what is democracy now except a government of, by, and for old Swiss women?

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