The Swiss Who Will Not Eat Cheese

In a case brought against Switzerland, two people held in state custody argued that the authorities’ failure to provide them with food containing no animal-derived ingredients violated Article 9 of the Convention, which protects freedom of thought, conscience and religion. The Strasbourg court agreed.

In short: Switzerland may be the land of Swiss cheese and Swiss chocolate, but Strasbourg has now informed it that, for the vegan prisoners at least, both may come with grave human-rights implications.

The dispute may sound trivial. Its implications are far from trivial.

Hardly anybody, of course, seriously objects to prisons making reasonable – note that word – provision for dietary needs. A functioning institution in the modern world can generally offer vegetarian food without great expense or difficulty. The important issue is not whether accommodating vegans is kind, sensible or administratively possible. The question, rather, is who gets to decide that such accommodation is a legally enforceable human right binding every single one of the 46 national governments that are signatories to the ECHR.

There is no reference to veganism in the Convention. There is no article guaranteeing prisoners a diet consistent with every ethical conviction they may hold. Nor is there any evidence that the elected governments which ratified the treaty understood Article 9 to impose such an obligation.

The “Discovery” of a Right

The right was instead discovered just this week through a radical judicial interpretation of the ECHR which has the net effect of placing veganism on the same plane as religion.

The broad concept of democracy is one in which the laws of a society are derived from the popular will, with citizens consulted regularly in elections and referenda. Courts exist to enforce existing laws and to ensure that citizens have equal access to their protections. Judges, being appointed rather than elected, are expected to be restrained and cautious rather than acting as legislators without a public mandate. When judges stop being restrained and start making new laws from the bench, a fundamental question of democracy arises: who governs, and by what authority?

The ECHR was signed in the aftermath of the Second World War. It was explicitly intended as a guarantee that the horrors inflicted on civilians in that conflict could never recur. But while Europe saw barely describable atrocities inflicted on its civilians throughout that awful conflict, not even the most imaginative authors of the Convention are likely to have believed that Article 9 would one day be invoked over the contents of a prison meal tray.

A Human Rights List - or a Legislative Mandate?

Instead, what has happened is that one unelected and only very indirectly accountable institution – the Strasbourg court – has taken upon itself the authority to treat the document it is supposed to protect as a mandate to impose an ideological agenda on 46 nations that foolishly granted it the privileged position of being elevated above even the votes of their own citizens.

Supporters of this approach will say that rights must adapt to changing circumstances. That is true, but only up to a point. For example, one could convincingly argue that a prohibition on the interception of private correspondence must plainly apply to email as well as letters. But applying an existing protection to new technology is different from turning a general freedom of conscience into a positive obligation on the state to facilitate every conscientious lifestyle.

Once courts begin deriving new entitlements from language that contains no such entitlements, the question is no longer whether vegan prisoners should receive suitable meals. It is a much older and more fundamental one: who governs Europe, and by what authority?

In this case, the ruling formally binds Switzerland alone, but Strasbourg’s interpretation of Article 9 will guide future cases across all 46 Convention states and will place pressure on national authorities to make comparable accommodations for vegan prisoners. The precedent is therefore likely to be invoked in later cases.

Who Governs Europe?

The issue here is not really about vegans and which combination of vegetables they are fed in European prisons. By itself, the decision is merely an administrative headache and an additional minor financial obligation imposed on the states it binds. The broader concern is the pattern: incrementally, and without democratic consultation, the European Court of Human Rights is creating a legal framework of rights that nobody has ever voted on, and which are intended to be irreversible.

This is, above all, a breach of trust of the most grievous kind. The authors of the Convention on Human Rights sought to place a handful of fundamental liberties beyond the reach of transient political majorities. That was a defensible and honorable ambition.

What they did not intend to do was to create a second, unelected legislature, empowered to invent new rights according to the moral fashions of the age. If Strasbourg now claims that authority for itself, then Europe faces a question that its politicians have avoided for far too long: if judges can continually rewrite the meaning of the Convention without the consent of the nations that signed it, is it still the Convention that governs Europe – or the Court itself?

The Court has a very clear position on that question. It is perhaps time the public considered whether it should adopt one too.