SARS-COV-2 as a historical opportunity for E-Government and Switzerland

SARS-CoV-2 gives Switzerland a shot across the bow (Helvetia freighter of the Swiss deep-sea fleet).

by Dr. rer. publ. Rolf Rauschenbach

The fact that public administration cannot be adequately and promptly digitized given the existing structures has now also been recognized in Bern. In a study recently published by the Federal Department of Finance (FDF) and the Conference of Cantonal Governments (KdK), three options are presented for meeting this challenge. On closer examination, however, they turn out to be unsuitable. Switzerland must reinvent itself by means of a total revision of the Federal Constitution.

The health, economic, political and social consequences SARS-CoV-2 will have for Switzerland still remain to be seen; there is no doubt however, that they will be profound. Naturally, everything possible must be done in the short term to keep the damage as low as possible. At the same time, it is appropriate to now start thinking about the future that ensues. This is for two reasons: Firstly, the current crisis is revealing weaknesses in the existing infrastructure, which has proven costly even during normal times. Secondly, because only a crisis of the current dimension might be able to provide the momentum needed to tackle the problems that have long been accumulated. Although the current debate focuses on the health system and its lack of digitization, the digitization of public administration faces the same challenge.

Problematic starting position

By way of illustration, we can quote from the ‘Evaluation Report on the Effectiveness of the Organization E-Government Switzerland in Implementing the E-Government Strategy Switzerland’, which was prepared in November 2018 for the Planning Committee of the Secretariat of E-Government Switzerland:

“The importance of e-government is recognized at all levels and there is a clear need for an intergovernmental organization […]. Many observers do not agree with expectations and the impact achieved. The demands have risen substantially, and the entire organization cannot meet them […]. There is a lack of a political vision and an expression of will for e-government […]. The political anchoring of E-Government Switzerland is not sufficient. The organizational establishment of this topic is thematically and hierarchically inappropriate for a federal office that focuses on IT […]. E-Government is a topic with transformational character and should not be located in a federal office entrusted with IT. In principle, E-Government is a topic of administrative procedures for the benefit of citizens and companies, as well as between administrative units, which has a strong political component and affects all levels of government […]. Too many actors are working on too small a range of tasks in this complex of issues, which leads to mutual obstruction and reduced effectiveness, also because of the need for mutual demarcation and the lack of a holistic approach […]. In particular, the construction of separate portals, apps and identity solutions must be critically examined […].”

Three solution variants

These assessments leave nothing to be desired in terms of clarity and remain still valid today. Against this background, the FDF and the KdK commissioned a study to develop solutions as to how the Confederation, the cantons and the municipalities can make the strategic management and coordination of their activities, initiatives and projects for digital transformation more effective. The corresponding final report “Digital Administration: Project to optimize federal steering and coordination” was published in October 2019. It proposes three variants as well as a possible implementation plan. These proposals will be presented and evaluated in the following section. An alternative approach is then outlined.

• Option 1 “Political Platform for the Development of Standards” is moderate in its level of ambition and corresponds to a targeted, selective furthering of the status quo. The target organization will take on tasks in the areas of strategy development, standard setting, provision of strategic basic services, promotion of innovation and knowledge exchange, setting incentives and consulting. However, the target organization itself has no decision-making authority; as in the past, all decisions will only be declared binding in the decision-making procedures of the cantons and other institutional actors involved.
• Option 2 “Political Platform with Binding Standard Setting” differs from option 1 in that the target organization can not only develop certain standards throughout Switzerland, but also set them bindingly. In areas other than standard setting, the target organization will continue to function only as a political platform without binding decision-making power. In order for the target organization to be able to declare standards binding, an amendment to the Federal Constitution is necessary.
• In Option 3 “Authority / Sovereign Actor”, the target organization is given considerably greater powers. In addition to binding standard setting, the new authority will be endowed with autonomous and binding decision-making powers within the entire mandate and budget framework. The target organization is conceived here as a nationwide authority with its own legal personality and corresponding responsibilities, accountability, governance and financial sovereignty within the mandate and budget framework assigned to it. As with option 2, a constitutional amendment is also required here, as the autonomy of municipalities, cantons, the Confederation and other public institutions is considerably reduced.

Fainthearted implementation plan

The report does not give preference to any of the three options. The advantages of the more far-reaching options 2 and 3 are again called into question by the difficulties of political and legal feasibility. Therefore, the authors propose a step-by-step implementation plan, which envisages that the options are implemented sequentially. So-called exit points should make it possible to cancel the implementation of options 2 or even 3 if they turn out unnecessary. Specifically, option 1 “Political Platform for the Development of Standards” would be implemented by the end of 2021. If necessary, option 2 “Political Platform with Binding Standard Development” would then be implemented by the end of 2024. Should this solution also prove to be insufficient, the creation of an authority would commence from 2025 on.

Evaluation: Way too slow…

How are these approaches to be judged? If we consider the challenges cited at the beginning, it is clear that option 1 is completely unsuitable for advancing public administrations with regard to digitization. This variant merely continues the status quo, which has already been proven as problematic. While options 2 and 3 are more radical in their approach, the idea that their implementation would not begin for two and five years respectively seems incongruous in view of the inefficiency and system deficiencies that exist today and the rapid pace of technological change. With today’s structures, we cannot afford to have a patchwork of systems and processes that run the risk of not being able to catch up with the ever-growing backlog. While the digitization of public administration was slow before the COVID 19 pandemic, we are now presented with a historic opportunity to tackle the digital transformation of the public administration with the highest priority and combined forces.

… and inadequate to the challenge

Does this mean that an authority according to option 3 must be created immediately? At first glance, this approach seems promising. The new sovereign actor would be a sui generis institutional figure within the federal structures. Other authorities that have been created recently (Swissmedic 2002, Finma 2007) cover narrowly defined areas and mainly implement federal law; cantonal or even municipal authorities are hardly directly affected by them. However, this would be different in the case of the new e-government authority: it would set technical and organizational standards and processes across all policy areas and finance strategic projects that largely pre-define the digital reality of the federal authorities, the cantons and the communes. This would severely infringe upon autonomies typical of federal structures and it could be expected that municipalities and cantons would politically block the work of the new authority. It is unclear to what extent the authors of the final report are aware of this problem, as the statements on the possible concrete tasks of the new target organization remain rather vague. Interoperability services, common registers and electronic document exchange are mentioned as possible future projects, without explaining what the substantial differences between these concepts are in the present context. With regards to the concept of standard setting and development, it also remains unclear in which areas the authority should standardize – and in which it should not. Standards are essential for digitization. Once they have been defined, requirements for software, hardware, organization, governance etc. can to a large extent be derived directly from them. Furthermore, standards are not developed and defined in isolation, but must be coordinated with other, already existing standards within their area of application. Sooner or later this leads to a comprehensive standardization of all relevant systems and processes. Standards are therefore de facto much more than just standards, provided of course that they are implemented by everyone.

In other words, option 3 is based on the fundamental misconception that a federal, multi-departmental state system committed to the rule of law and direct democratic processes can be digitally transformed with an additional, technocratic authority. As can be seen in all other areas of life, values, processes and structures change fundamentally in the course of digitization. The technical challenges often prove to be the least significant; the organizational and cultural changes that are also necessary usually require a much greater deployment of resources. The state cannot escape these dynamics and the corresponding challenges or take a shortcut to avoid them.

Total revision of the Federal Constitution unavoidable

If the Swiss state system is to be made fit for the 21st century, it must be completely overhauled. The principles of federalism, direct-democratic participation, the rule of law and the social state are not under discussion here, but the exact form that they would take. They must be reinterpreted in the context of a revision of the Federal Constitution. In terms of content, the following three questions must be clarified:

1. Which state tasks can be digitized?
2. At which federal level are these tasks best performed?
3. To what extent would cantons and communes have to be merged or restructured so that they can fulfil their tasks independently?

The instrument of partial revision of the Federal Constitution would not be permissible for a comprehensive reorganization, as the single-subject rule would be violated. The suitable instrument would be a total revision of the Federal Constitution; in this specific case, the procedure could be as follows:

1. The Federal Assembly and the Federal Council shall set up a task force which, within 6 months, shall undertake the following tasks: Development of a rough concept of how the total revision is to be carried out (legal aspects, organizational matters, personnel issues, financing, etc.) It also develops suitable instruments to make the total revision participatory.
2. If a majority of the National Council and the Council of States is in favor of drawing up a totally revised constitution, no consultation with a majority of the people and the cantons is required; however, this would be advisable to increase the legitimacy of the project.
3. If the people and the cantons approve the drafting of a totally revised constitution, the actual work for the parliament begins. It formulates the new constitutional provisions with the support of the administration, academia and the participation of the citizens.
4. The totally revised Constitution shall be submitted to the People and the Cantons. Since, if adopted, the cantons and communes would be merged or reformed, these reforms must also be approved by popular votes.

There is no doubt that the challenges of a total revision are many times greater than those of options 2 and 3 discussed above, but the long overdue quantum leap in the efficient fulfilment of state tasks is unlikely to be achieved otherwise. The direct health and economic consequences of the COVID 19 pandemic will be epochal for Switzerland. However, if the crisis can be successfully combined with a total revision of the constitution, which is necessary for the digitalization of government tasks, Switzerland will be in a better position than ever before after the corona pandemic.

Originally published in German in BundesRundschau 1/2020, pp. 12-15. The views expressed belong to the author and do not necessarily reflect those of Procivis.

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