15 November 2016


Prof. Dr. Hans-Ueli Vogt

Hans-Ueli Vogt is a member of both the Swiss National Assembly and the Legal Commission of the National Council. He is also a full professor of law at the University of Zurich. Hans-Ueli recently drafted the "self-determination initiative". This initiative, which will be subject to a referendum, seeks to ensure that the Federal Constitution becomes the ultimate source of law for the Swiss Confederation: putting its constitution above non-obligatory laws such as bilateral agreements with the EU.

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Prof. Dr. iur. Matthias Mahlmann

Matthias Mahlmann is the Chair of Philosophy and Theory of Law, Legal Sociology and International Public Law at the University of Zurich. He has been visiting professor at the Central European University, Budapest; the Hebrew University, Jerusalem; Georgetown University Law Center, Washington, DC. He also serves as the BOK Visiting International Professor at the University of Pennsylvania Law School 2016/2017. He has been a legal consultant to different public bodies, including the Swiss Federal Government and the European Commission.

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Dr. iur. RA Peter Studer

Peter Studer is a lawyer and publicist. From 1978 to 1987 he was the chief editor of the Zurich newspaper Tages-Anzeiger. From 1990 to 1999 he was the chief editor of Swiss Television. He then spent the next seven years at the Swiss Press Council. Peter taught media law at the University of St. Gallen.

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Andrea Huber

Andrea Huber is the initiator and head of the campaign “Schutzfaktor M – Menschenrechte schützen uns“, a coalition of 80 Swiss NGOs that opposes any political attempts to weaken the protection that the European Convention on Human Rights provides to Switzerland. She studied Political Sciences, law and media at the university of Berne. Dedicated to the protection and promotion of human rights, Andrea has been working as co-director for Amnesty International Switzerland and as a consultant and project manager for various organizations. She is also a member of the expert commission of "éducation 21" (Education for Sustainable Development).

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Luke Gittos

Luke Gittos is a solicitor practising criminal law and legal editor for the online magazine spiked. He also convenes the London Legal Salon, a discussion group on the law and politics, and recently set up the City of London Appeals Clinic. He regularly appears in the media to comment on legal and political issues. His first book, Why Rape Culture Is A Dangerous Myth: From Steubenville to Ched Evans, was published in September 2015.

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chaired by:

Andrew Wheelhouse

Andrew Wheelhouse is a senior paralegal at Bates Wells Braithwaite LLP. He specialises in media law and has a strong interest in public law. Previously he worked as a foreign law clerk at the Constitutional Court of South Africa. He holds a BA in law from St John’s College, Cambridge and an LLM from University College London. He was called to the Bar of England & Wales in 2013 and is currently cross-qualifying as a solicitor at Bates Wells Braithwaite, one of the leading law firms for work in the charity and not for profit sector.

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Human rights, sovereignty and democracy

The European Convention on Human Rights (Convention), which came into force in 1953, was motivated by the desire to prevent the worst abuses of the Second World War and protect citizens of European countries from the threat of Communism. Today, the body that rules on the Convention, the European Court of Human Rights (ECHR), has become an important source of law by determining when national laws, regulations or legal judgments contravene the Convention.

0byuxlsngrzs5zukxmlfrywlqa1ew2560-h1234-iv1But the way in which the ECHR has defined the Convention ever more broadly – for example, to create protections for minority groups or to include health insurance premiums and welfare reform – has come in for considerable criticism. Are recent judgments enacting the spirit of the Convention by broadening the application of rights to ever more areas and groups? Or has this process of interpretation gone way beyond its original scope to become a means of undermining democracy and the sovereignty of nations? Many would argue that the legislative process is often too slow in protecting rights and point to the dangers of majoritarianism. Others believe bypassing elected institutions and lawmakers is fundamentally undemocratic.

Switzerland intends to hold a national vote on a “self-determination initiative” to decide whether its Federal Constitution should be the ultimate source of law for the Swiss Confederation. The objective of this controversial Federal popular initiative is to put the constitution above non-obligatory international laws and the influence of foreign judges and powers.

Meanwhile, the current Conservative government in the UK has committed to scrapping the Human Rights Act – which incorporated the Convention into UK law – in favour of a British Bill of Rights, which would ‘reverse the mission creep that has meant human rights law being used for more and more purposes, and often with little regard for the rights of wider society’.

What should be the balance between giving freedom to lawmakers and voters to enact anything they want and retaining some ‘fundamental’ rights that may not be breached? Is giving judges such a large say a useful means to protect our rights or does it simply bypass democracy? Indeed, is democracy overrated, as some have suggested? Would we be better to rely on the judgment of experts and supranational bodies that aren’t directly answerable to the electorate?


Recommended reading:

  1. Federal popular initiative “Swiss law instead of foreign judges (Self-determination initiative)”
    Interview with Lukas Reimann, National Councillor SVP SG
    "The variant of our initiative committee is that the people should remain the highest authority in the country. The variant of the opponents of the initiative is that increasingly delegation takes place to experts and expert bodies and to any intergovernmental committees. This way we are deprived of freedom and democratic rights."
  2. An attack on human rights or strengthening democracy?
    Swiss Info
    ... ending the Convention would mean that decisions made by the Swiss Federal Court – the highest court in the land – could no longer be appealed in the European Court of Human Rights. Opponents of the initiative believe that passing it could be interpreted by other countries as a breach of contract, which would jeopardise the stability and legal certainty of the country, as well as its success as an economic centre.
  3. Human Rights Act will be scrapped, government confirms
    The Week
    The Conservatives plan to introduce a "British bill of rights" rooted in "British values". The Human Rights Act contains a "laudable" set of principles for a modern democratic nation, says the party, and it does not plan to introduce new basic rights. Instead, its aim is to "restore common sense and tackle the misuse of the rights contained in the Convention".
  4. The Human Rights Act
    The Human Rights Act protects all of us - young and old, rich and poor. Hopefully you will never need to rely on it, but every year hundreds of people do. Despite this, the Government wants to replace our Human Rights Act with their “British Bill of Rights and Responsibilities”. This would weaken everyone’s rights – leaving politicians to decide when our fundamental freedoms should apply.
  5. The liberal case for scrapping the Human Rights Act
    Luke Gittos, spiked-online
    Human-rights laws are flawed in both practice and principle. They are flawed in practice because they consistently fail to curb the draconian excesses of our legal system. And they are flawed in principle because they permit unelected judges to determine the extent of our freedoms.
  6. Plan for UK military to opt out of European Convention on Human Rights
    The Guardian
    Controversial plans for the military to opt out from the European convention on human rights (ECHR) during future conflicts will be introduced by ministers, to see off what the prime minister described as an “industry of vexatious claims” against soldiers.....

    Rev Nicholas Mercer, formerly a lieutenant colonel and senior legal military adviser to the 1st Armoured Division during the Iraq war, attacked the government for inventing an “orchestrated narrative”.

    “The idea that the claims are largely spurious is nonsense,” ...
  7. HRA: giving democracy a hammering
    Jon Holbrook, barrister
    The Human Rights Act (HRA) is wrong for several reasons, but principally because it enables political issues (prisoner enfranchisement, assisted suicide, welfare reform, etc) to be treated as legal ones. In a democracy, political issues should be the sole responsibility of elected representatives who make laws after engaging with the public. Legal issues should be the sole responsibility of judges who give judgements after hearing submissions from lawyers about the law. The big political picture, informed by contested values and beliefs, should be the preserve of politicians; the detail, informed by settled laws, is for judges. Putting it simply, it is for parliament to make the law and judges to interpret and apply it.
  8. The government is playing a dangerous game trying to scrap the Human Rights Act
    Philippe Sands, professor of law at University College London.
    The European convention reflected a deal, a compact between countries that claim to share a sense of values as to the liberty and dignity of the human person. In return for the shedding of some sovereignty, we obtain the right to hold others to account. The price paid in this country has not been a great one. Our common law has retained its essential vibrancy and values, the essence of which is exported through the convention and its interpretation by our courts. There has been no avalanche of cases, no transformation of a cherished approach, no implosion of essential parliamentary sovereignty, no dictatorship of the judges. Where Strasbourg has spoken against the UK, it has generally been right to do so.
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