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Interview
Health lawyer criticizes crisis management: “The Federal Council assumes very little leadership role”
Christoph Zenger analyzed the Epidemic Act on behalf of the federal government. Criticize that their recommendations have not been implemented.
Badly prepared for Corona’s fall? Simonetta Sommaruga and Alain Berset.
Christoph Zenger is a renowned Swiss health lawyer. Until the beginning of the year he was director of the Center for Health Law and Health Management at the University of Bern for 15 years. Zenger has dealt extensively with the Law of Epidemics. In 2018, the law professor co-authored a 217-page analysis on the role of the federal government in the particular situation and on the question of how well equipped it is.
Health Attorney Christoph A. Zenger
We are in the ninth month of the crown. What is your qualification for crisis management in Switzerland?
Christoph Zenger: I am not someone who distributes ratings. But Switzerland is not currently very successful. The numbers are high. Our situation is similar to that of the beginning of the year. It is surprising that nothing else was done in the summer to prevent that from happening. After all, from the spring it was predictable what else would happen.
How could that happen?
We have a host of systemic and governance issues in fighting pandemics, and Covid-19 has relentlessly exposed them. It is also clear that federalism is decisive for the cohesion of Switzerland, but not suitable for crisis situations.
Why?
Let’s start with the Federal Council. It has long been based on making recommendations rather than setting simple, clear rules. We remain in a special position. The Federal Council has management responsibility in this.
In your opinion, has the Federal Council deviated from its responsibility?
Yes, I think he should have played his role very differently. Federal Councilor Alain Berset expressly said in the summer that the cantons are now responsible. But that is not true in the particular situation.
The law states that you must listen to the cantons.
Yes, but it is not that the cantons decide for themselves. According to the Law on Epidemics, the special situation occurs when the ordinary enforcement bodies, that is, the cantons, cannot combat the spread of a communicable disease. From the end of the blockade until today, the Federal Council has rightly emphasized that we are in a special position; then he himself assumes that the cantons are overwhelmed. In this situation you have to lead. For a long time, one has felt very little of this. Only now, when the crisis worsens again, does a little more.
Why is the Federal Council being delayed?
In addition to political pressure from interest groups, I see two explanations. The first, political: you can order measures, but you have a problem with compliance. Because it lacks the organs to carry out the measures to be reviewed. The cantons have to do that. And of them, especially the largest, are opposed to the federal government prescribing the measures. The Federal Council gives in to this resistance.
And the second explanation?
It is also possible that we have a leadership problem within the Federal Council that is now having an impact here in the fight against the pandemic.
The assumption is obvious that collegiate authorities are less decisive than executives in which a single boss is responsible. Is it a system problem?
Let me put it this way: As a collegiate authority, the Federal Council is not exactly predestined to lead in a coordinated manner. But you’ve seen in other difficult times that you can do it anyway. At the moment, however, there is not much to do with this, I find the actions of the Federal Council erratic. There is no discernible strategy.
The Federal Council took action on the fines this week; you want them to be easier to distribute in the future. About those who reject masks. Is it the correct step?
Yes, this is the correct step because a rule is strengthened when infractions are easier to sanction. However, this is a selective measure, you should not expect too much from it.
Where specifically would you have wanted more repression?
For events and meetings, the federal government should have developed binding national rules much earlier.
The federal government lacks enforcement instruments. This is a problem that is difficult to get rid of. Or are you thinking of the army?
No, I would not do it militarily. But I think the law should give the federal government more powers to enforce such a pandemic. If necessary, he should be able to ensure compliance himself, with his own available staff and structures, such as community service, but above all by being able to access and use cantonal resources directly in the particular situation. This cannot be done without a national operational body in charge of the operation; this is foreseen in the Epidemic Law, but was never implemented. This is taking its toll now.
This is one of several issues you describe here and highlighted for the federal government in an analysis of the Epidemic Act in 2018. Apparently it received little attention.
In fact, we were surprised that nothing else had been done earlier. But it must also be said: good things take time, and until the beginning of this year no one in Switzerland, except a few specialists, really expected such a pandemic to occur here. The law regulates the content strategy and measures the options in an exemplary way, but the organizational part was neglected, which body does what in a crisis. That is why all ad hoc solutions have emerged in recent months, for example, the scientific working group.
In his analysis, he wrote that such a body is needed because the BAG does not have extensive specialist knowledge in the event of a crisis. Are you satisfied with the result?
No, not much. Nowhere is it clearly regulated what role this working group should fulfill. And meaningful communication between authorities becomes impossible because individual members repeatedly raise their profile with demands about what should be done. The result is that, in the meantime, many people are so confused that they say, I do what I want.
Paint something even black. Also, it’s okay for science to speak up when it discovers it’s not being listened to enough.
Scientists can do that. If you hold a position in a task force in the event of a crisis, this does not apply. Disciplined and uniform communication is required. Today it is unclear what the official statements are and when they are opinions of individual members. The working group lacks leadership and its tasks and methods of communication are unregulated. The federal government should do this immediately.
The last few weeks have also brought hope: a vaccine is within reach. Now the federal government has to get people vaccinated too.
I don’t think opposition to Covid-19 vaccination is particularly strong, except in politically active care associations. Covid-19 is too contagious for that, the possible consequences with quarantine, severe courses and consequential damages too great. Good communication is important now. The Confederation must convince the public that, despite all the rush, the vaccines will be seriously tested by the Swissmedic licensing authority and only approved if they are safe and effective.
