Legislation and Human Rights
Introduction to Swedish Law: Group 6
Maeve Wright
Lara Marie Müller-Esch
Ross Grimley
Anna Zehngraff
Legislation and Human Rights
The legislation is one of the most important tasks of the constitutional institutions. We were asked to
describe the Swedish system from three different perspectives:
 Firstly, when an act of law is a necessary regulation and when it is not and why.
 Secondly, which fundamental rights are absolute for Swedish citizens and for foreign citizens
and why.
 Lastly, an explanation of the systems of legal preview and legal review.
Within our group we have backgrounds in the Danish, German and Scottish legal systems. Each part of
the question will make a comparison to our own national system including when an act of law is
necessary in Denmark, the absolute rights of German citizens and foreigners in Germany and forms of
legal preview and review in the UK.
1. When is an act of law necessary as regulation and when not?
1.1. Legislative principles in Sweden
Chapter 8 in Instrument of Government (Regeringsformen 1974:152 – hereinafter “IoF”) concerns the
Swedish legislative procedure. The legislative authority of the state is vested in mainly the Riksdag, the
Swedish Parliament, but also the Government has great legislative power and can regulate certain
areas, cf. IoF ch. 8, art. 13. This is called the residual power and the Government may under some
conditions even delegate this competence of legislation to inferior administrative authorities, cf. IoF
ch. 8, art. 13. However, this competence conferred on the Government to adopt provisions in particular
matters never precludes the legislative power of the Parliament in the same areas, cf. IoF ch. 8, art. 8.
First and foremost it seems appropriate to mention that certain types of laws are not permitted at all.
This is the case concerning for instance corporal punishment and no laws can therefore instruct
anyone to be subjected to torture, cf. IoF ch. 2, art. 5.
At the same time some provisions with certain content can only be adopted by means of an act of law,
cf. IoF ch. 8, art. 2. According to this article, several areas concerning civil law, citizenship law, public
law, government regulation and procedural rules regarding the general election for both Riksdagen
and the European Parliament, must be given by law. Furthermore, rules concerning the judicial tasks
of the courts, the main features of their organisation and legal proceedings must be laid down in law,
cf. IoF ch. 11, art. 2.
As mentioned above, there are deviations and derogations from the main rule in a number of areas,
since the Government can issue ordinances and thereby issue laws without the interference of the
Parliament. Such ordinances are mainly used and are at the same time much needed in especially
wide legal areas such as the protection of life, health and personal, business activities in general,
education and vocational training. This kind of so-called secondary legislation is based either directly
on the Constitution or on delegation from the Parliament.
Most importantly, the Government can be given the competence to issue rules concerning the
enforcement of the laws, cf. IoF ch. 8, art. 5, although the Government can only adopt provisions
relating fines and not other legal effects of criminal acts, cf. IoF ch. 8, art. 3, point 1, if not granted to do
so. It is possible for the Government to legislate on charges or fees, as long as it does not concern
payments that can be considered taxes, cf. IoF ch. 8, art. 3, point 2.
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Finally, it must be mentioned that according to the common priority standards for legal sources an act
of Parliament may only be changed by means of another such act, cf. the principle of lex superior
derogat legi inferiori, after which a law higher in the hierarchy repeals the lower one.
1.2 Comparison: Legislative principles in Denmark
The Danish constitutional law is very similar to the Swedish. It is roughly the same areas that require
legislation, and is it also the same prohibitions against certain kinds of legislation that are enrolled in
the Danish Constitution. The Danish legislator uses to a great extent delegation of legislative power in
the very same way, why also the Danish government can determine much through ordinances.
However, there is a peculiar difference between the competence of the Swedish and Danish king in
relation to legislative matters. In an emergency, the Danish king is allowed to issue provisional laws, cf.
act. 23 in the Danish Constitution (Grundloven no. 169 of June the 5th 1953), while the Swedish king
has no such jurisdiction. However, this will only be of practical relevance in the event of war or other
similar crisis, but it clearly shows the difference in the role and status of the royal families.
Another particularly striking difference is the Danish parliament opportunity of delegating legislative
power to the home rule arrangements for Greenland and the Faroe Islands. This is somehow the core
example of a parliament delegating its power to the Government, who thereafter gives the competence
to inferior administrative authorities. Ever since the Greenlanders voted in favour of the SelfGovernment Act more power has been transferred from the Danish Government to the local
Greenlandic government, but the Danish retains control of particularly foreign affairs and defence and
monetary policy. A delegation as wide as this, is merely possible because of the limited material and
geographic scope and due to the fact that the delegation can be revoked, although this is not likely to
happen.
2. Absolute fundamental rights
2.1. Absolute fundamental rights for Swedish and foreign citizens
In the Swedish legal system fundamental rights can be found within the four constitutional sources
that provide fundamental laws, the so called grundlagar.
Since the purpose of fundamental laws is to protect Sweden’s democracy they are more difficult to
amend than other laws. As a result two identical decisions by the Riksdag are compulsory for an
amendment to be made.
The fundamental rights include (positive) freedoms as well as negative freedoms. In Sweden,
everybody is guaranteed the freedom of expression, the freedom of information, the freedom of
assembly and manifestation, the freedom of association, the freedom of worship and the freedom of
movement within the country’s boundaries (art.1 chap.2 RF) Furthermore no citizen my be deported
or deprived of his citizenship.
Chapter 2 of the Instrument of Government from 1974 (RF) provides provisions on most of the human
rights, regardless whether a person has got a Swedish citizenship or not.
Within this chapter rules are established concerning the question in which way and when
[fundamental] rights may or may not be restricted. Furthermore rules are given to which extent the
rights also apply to foreigners.
Art. 22 RF states that some rights also apply to foreigners whereas others only do unless the law states
something else.
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As mentioned above art.1 chapter 2 RF states freedoms that everybody living in Sweden shall have.
Nevertheless those freedoms can be divided into two groups: Freedoms/Rights that may be restricted
under certain conditions as art. 20 sets out on the one hand and rights that cannot be restricted under
any condition.
Rules how and when freedoms may be limited are laid down in the articles 12 ff. chapter 2 RF.
2.2. Comparison: Absolute fundamental rights for German and foreign citizens
Germany’s constitution provides in its Articles 1-19 GG the fundamental rights including freedoms as
well as negative freedoms for the people.
Within those articles there are two types of fundamental rights: On the one hand the so-called
„Jedermann-Grundrechte“ which are also known as universal fundamental rights and the so-called
„Deutschengrundrechte“ which only apply to German citizens in sense of Art. 116 GG.
The reason that Deutschengrundrechte only apply to Germans can be seen in the special connection to
the democratic will as well as to the idea of protecting the sovereignty of the people.
The fundamental rights are binding for all constitutional power deriving from the state, the federal
Republic of Germany.
In general the articles 1-20 („fundamental rights“) of the German constitution cannot be changed since
they somewhat guarantee certain rights to every individual living in Germany.
Nevertheless there are possibilities to restrict certain fundamental laws except for the freedom of
assembly (Art. 8 GG), the freedom of arts and science (Art. 5 III GG), the freedom of religion (Art. 4 I
GG) as well as the Human Dignity (Art. 1 I GG).
Restriction can either be made by law or on grounds of law but only if that law fulfils the requirements
of a general law which means that the law is not only valid in one certain case.
Even though the rights named above can neither be restricted by law nor on grounds of law there is a
way in which even those rights can be restricted. Such a restriction can only be made if either
fundamental rights of another person conflict with the rights of the person claiming for their
fundamental rights or if other concerns of constitutional status are tangled.
3. Legal preview and legal review in Sweden and in the UK
3.1 Legal preview
A bill goes through a number of stages in the Swedish Legislative Process. Firstly a legislative
committee appointed by the government investigates the issue and makes a first draft of the statute.
This is then circulated to bodies that may be interested and they give their opinion on the matter. A
final draft of the legislative proposal is then made and this proposal is scrutinised by the Council on
Legislation (also known as the Law Council). The council consists of former justices of the supreme
courts and these members are renewed every second year.
It is the Council on Legislation’s job to carry out legal preview and make sure that a proposed bill is in
agreement with the fundamental laws and fits in to the Swedish system before the bill is submitted to
Parliament.
However, it is not obligatory that a bill goes to the Council on Legislation, and if this step is bypassed it
will not affect the application of the law once passed by Parliament. In recent years it has become the
case that a bill must examined by the Council of Legislation in certain situations.
Article 8:18 of the Instrument of Government states that the opinion of the Council on Legislation
‘should be obtained’ when the bill concerns certain matters including freedom of the press and
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freedom of expression through other media, restriction of fundamental rights and certain
administrative laws. A condition is imposed that ‘The foregoing does not how-ever apply, if obtaining
the opinion of the Council on Legislation would be without significance having regard to the nature of the
matter, or would delay the handling of legislation in such a way that serious detriment would result.’. But
the government must inform the Riksdag of the reason why a bill concerning the matters listed has not
been submitted to the Council on Legislation.
This provides a form of legal preview, and aims to ensure that any proposed bill will not conflict with
the Swedish constitution (technically this includes the ECHR, although the convention is not always
treated as if it carried constitutional weight), and since Sweden’s accession to the EU in 1995, the
council must also ensure that there is compatibility with EU law.
Council opinions carry a lot of weight and are taken into consideration the majority of the time.
However it is important to stress that opinions of the Council on Legislation are not binding and the
government may go ahead with a proposal that the Council has explicitly disagreed with.
What then is the significance of legal preview? Is the Council on Legislation an unimportant body? No,
they are not, and the reason for this lies in the relationship between judicial preview and judicial
review, which is essentially this; if the council were to explicitly oppose a piece of legislation, this is a
strong indication that if the legislation were to be called into question by way of judicial review in the
future, the courts would likely disapply it or at least creatively interpret it in a way which would
address the alleged inconsistency.
Before we move on to judicial review, we might make a brief comparison between Swedish and British
law.
In the UK there is essentially no form of judicial preview. The only mechanism by which there will be
such judicial considerations in the drafting stages of legislation is that of judicial review, in that it
would be prudent for the legislature to consider the possibility of future judicial review while drafting
legislation.
3.2. Judicial review
By way of comparison it is worth noting that due to the emphasis on what we might call
‘democratically representative sovereignty’ in both Sweden and the UK (i.e. popular sovereignty and
parliamentary sovereignty respectively) judicial review plays a rather limited role in both states.
While in Sweden judicial review found a statutory footing in 1979 – in chapter 11 article 14 IG – it has
been a recognised legal doctrine in Sweden since 1880 and the case of NJA 1951, 39. As the law stands,
judicial review is to be exercised when the court or another public body finds that a statutory provision
is at odds with another superior statute, a fundamental legal principle, or that the procedure by which
the provision should be enacted was not properly adhered to. In such circumstances, the provision in
question can be waived.
Judicial review in Sweden has historically been exercised with great restraint and until
recently there was a requirement that legislation enacted by parliament or government could only be
subject to judicial review in cases of ‘manifest error’. In codifying judicial review it was of paramount
importance that judicial review would not undermine popular sovereignty in Sweden, and this is likely
why the requirement of manifest error was included in the legislation.
What were the implications of including the requirement of ‘manifest error’?
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Most significantly the ambiguity inherent in this qualification had a restrictive effect on the
applicability of judicial review. What if one judges’ opinion of what constituted a ‘manifest error’ was
different from another’s?
In this respect the statutory framing of judicial review could be said to have weakened the doctrine in
Sweden by over-restricting its applicability. While 2010 saw this requirement abolished it is too early
to properly assess the impact that this change will have, but the hope is to allow the Swedish courts
and public bodies to use judicial review more frequently.
3.3. Comparison: UK
In the UK, there is a constitutional basis for judicial review just as there is in Sweden, arising from the
ultra vires doctrine i.e. that when a public body acts beyond the power conferred to it by legislation,
this will be ground for the decision to be challenged and potentially struck down by the courts. What
sets aside judicial review in the UK however is the focus on judicial review as a product of the common
law.
First it should be noted that the conventional view is that, by virtue of the parliament having unlimited
legislative competence and being accountable to no higher authority, judicial review as it is framed in
statute would not be applicable to acts of the UK parliament. However in two recent and highly
controversial cases (R (Jackson) v Attorney General and AXA General Insurance Ltd. and Others v Lord
Advocate) the UK courts declared that they had a ‘residual’ power of judicial review on common law
grounds.
The judgement in these joint cases was long and complex but the outcome was essentially that where
any parliament, be it the Scottish parliament or the UK parliament, were to enact a law which
diminished the role of the courts in protecting the individual, or sought to abolish or exclude judicial
review, that legislation should not be applied by the courts.
This definition of judicial review is new and undeveloped but as it stands and by virtue of the fact that
it is a definition created by the judiciary, it is a very broad definition. However, this is not to say that it
is now likely that judicial review of parliamentary legislation will become commonplace in the UK, and
in fact no such cases have yet been heard.
3.4 Impact of EU Membership?
In both the UK and Sweden, EU membership has had a huge impact on the perceived importance of
judicial review as in subscribing to the EU a state must surrender a certain degree of legal sovereignty
in accepting that in certain cases Community law will prevail over domestic law.
This means that the institutions of judicial review (and judicial preview in the case of Sweden) must
take Community law and compatibility with the ECHR into account, and decisions by public bodies are
subject to these requirements. Both countries have been slow in implementing these adjustments
which is most likely attributable to the doctrines of popular sovereignty which act as keystones in both
countries’ constitutional frameworks.
In summary, both countries allow limited scope for judicial review due to the significance of
parliamentary or popular sovereignty and in both systems there is a general unwritten consensus that
judicial review should be reserved only for exceptional cases. However both systems have seen an
increasing shift towards more supervisory jurisdiction for the courts, albeit through different means.
In cases of judicial review it is common in both Sweden and the UK for courts to favour resolution by
means of creative interpretation of the disputed legislation or decision rather than disapplication. This
again tends to show the want to preserve popular sovereignty rather than moving towards what might
be called judicial activism, as exists in the US for example, which might threaten democracy and the
Rule of Law.
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