Does Sweden's constitution really prevent tougher coronavirus measures?

Richard Orange
Richard Orange - [email protected] • 21 Nov, 2020 Updated Sat 21 Nov 2020 10:00 CEST
Does Sweden's constitution really prevent tougher coronavirus measures?

Sweden's government has long claimed the constitution prevents it from ordering shopping centres to close or banning big private parties, let alone imposing tougher lockdown measures such as curfews or stay-at-home orders. But is this really true?


That's up for debate, even among legal experts, with many arguing that the government's hands are not completely tied. 

The Local spoke to three senior lawyers reflecting the various sides of the debate to find out what Swedish law actually says about stricter measures, lockdowns, and states of emergency.


Why can't Sweden just put in place a state of emergency? 

Unlike France, Germany or Spain, Sweden's constitution does not give the government the right to impose a state of emergency giving it special powers to combat the pandemic. This can only be done in wartime (or at least when war is looming).

"Unlike many other European countries, we lack emergency legislation where you can just press a button and say 'now we are in such a crisis that we need to empower the government to do certain things," explains Krister Thelin, a retired judge and former deputy justice minister.

This means Sweden must follow ordinary legislative processes, including putting proposed law changes to parliament.

Krister Thelin when he was a judge back in 2007. Photo: Pontus Lundahl / TT

What does the constitution say? 

Article 2 of Sweden's current constitution, from 1974, enshrines several basic rights. 
These include the right "to organise and participate in gatherings for information, expression or other similar purposes or for the performance of works of art"; the "right to demonstration"; the right to travel freely in the country and the right of public access.
The 17th section of the second chapter says "limits to the right to trade" are allowed only "to protect pressing public interests and never solely in order to further the economic interests of a particular person or enterprise". 
Individuals' rights are also protected under the European Convention on Human Rights, which was incorporated into Swedish law in 1995. Article 2 of additional Protocol 4, for instance, protects freedom of movement. 
On the face of it, these restrictions rule out most of the coercive coronavirus measures imposed in other countries. They mean no travel bans, no curfews, and make it difficult to force the closure of bars, restaurants, gyms, shops and shopping centres.  
But Mark Klamberg, a professor in international law at Stockholm University, argues that as most of the Swedish protections are duplicated in the European Convention, every other European Union country faces a similar constitutional barrier -- and they have imposed lockdowns nonetheless. 
"My argument is basically this: if other countries can introduce different measures that to some extent are more strict than Sweden, and they are also subject to the European Convention on Human Rights -- the same criteria as we have to obey -- we should be able to do the same." 


Can there be exceptions to the constitution? 
"One has to distinguish between absolute and relative rights," Klamberg explains.

"Absolute rights are rights that can never be interfered with, an obvious example, is the prohibition against torture. Most other rights are relative, and that means that the state can interfere with these rights." 
Indeed, rather than have an all-encompassing emergency law, Sweden's approach to handling crises is instead to embed specific emergency clauses into other laws, specifying when the state may interfere with constitutionally protected rights. 
"The idea is that each separate legal statute where relevant should contain clauses which may be used for emergency situations, an approach called författningsberedskap, “anticipatory statutorification", Klamberg wrote in an article laying out why he thinks the government could impose tougher measures. 
Parliament can pass laws which allow the state to interfere with constitutionally protected rights. Photo: Anders Löwdin/Sveriges riksdag
What exceptions to the constitution already exist in Swedish law which are relevant to the pandemic? 
This is where the experts start to differ. Both the Act on Protection Against Contagious Diseases, and the Public Order Act empower the government to infringe on the constitutional rights of citizens and residents of Sweden. 
Chapter 2, section 15 of the Public Order Act allows the government to ban public gatherings in a specific area if necessary to prevent epidemics. This is the clause used to limit public gatherings to 50 people in the spring, and to eight people last week. 
The Act on Protection Against Contagious Diseases gives powers to the the Government, the Public Health Agency and the chief "prevention of contagion" doctor (smittskyddsläkare) in each region. It empowers the regional infectious diseases chiefs to put people in quarantine, ban people from entering or leaving certain areas, and to shut down certain businesses. 
The government believes that these powers are very limited, however. 
On Monday, Kristoffer Strömgren, a special advisor to health minister Lena Hallengren, tweeted out a "pandemic law for dummies" laying out what he thinks is possible. 
The government can, he argues:
1. shut down theatres, cinemas, religious services, lectures, demonstrations, markets, conferences, sport and the stop the sale of alcohol. 
It cannot:
2. close shops, shopping centres, private parties, spontaneous meetings and collective traffic. 


All the lawyers The Local spoke with found this summary either erroneous or argued it gave an incomplete account. 
"If that was from a judge or a low level public official, that would be accurate," states Klamberg. "But that tweet assumes that the law is somehow inert and cannot be changed." 
"The government," he argues, "is the body responsible for proposing new laws. So they cannot only talk about what the current law allows the government to do. They also have to relate to what it wants to. What laws are reasonable to change?"
Might the Act on Protection Against Contagious Diseases itself give the government lockdown powers? 
According to Krister Thelin it does. "My stance has always been that a clear reading of the Contagious Disease Act would allow for ordinances by the government to be issued in order to restrict, coordinate and empower, for instance, the regions to do things," he argues. 
The relevant passages are Chapter 9, Section 4 and 6. 
Section 4 reads: "the government or whatever agency the government empowers can issue the further ordinances required for appropriate protection from infection as well as the protection of individuals". 
Section 6 reads: "The government can issue special ordinances on protection from contagion according to this law, if in a peacetime crisis this has a significant impact on the possibility of maintaining effective infection control, there is a need for coordinated national measures, or from a national perspective, requires other special initiatives regarding infection control." 
As a result, Thelin believes there was in fact never any need to put in place an emergency pandemic law in spring. This law, which expired in summer, gave the government the power to introduce measures such as closing shops or restaurants without needing prior approval from parliament.
"In my view, that amendment was unnecessary, because the government had the tools under the plain reading of the contagious disease act as it stood," Thelin says. 
Krister Thelin argues that existing Swedish law would be sufficient to impose a lockdown such as that in France above. Photo: Martin Bureau/AFP
The others lawyers The Local spoke with disagreed with Thelin's reading of the law.
"It's not a common view," argues Joakim Nergelius, a professor of constitutional law at Örebro University. 
While the text of the law itself alone might allow for Thelin's interpretation, Klamberg argues, in Sweden the tradition is for lawyers to also look back at the intention of those who framed each law. 
"What is very important to us is preparatory works -- that's what the government and the different parliamentary committees write before the law is adopted. That's a source of law in Sweden," he says. He argues that the provisions are intended to refer to government coordination of state agencies, but not introducing new obligations for individuals.
It's not surprising that government's own lawyers went for the cautious interpretation, given that they might have been at risk of legal action. The lawyers of anyone challenging them would likely have referred to the preparatory works. 
Can't the government just pass new laws allowing them to impose lockdown measures? 
It can, and it already did.
The Emergency pandemic law passed on April 16th, extended section 6 of the contagious disease law, to allow it to close ports, schools, gyms, restaurants, shops and other businesses. The government could do this without first going to parliament, but had to then submit the law to parliament to review. This created a risk that measures could be imposed and then immediately repealed. 
The law expired on June 30th, without ever being used. 
This law was only possible because Sweden's constitution allows the government to pass laws which amend or infringe on any of the relative rights enshrined in it. 
The relative constitutional rights can be infringed so long as: 
1. The parliament passes a law 
2. The infringement remedies a legitimate interest or has legitimate ends (say, law enforcement, public safety, or health)
3. The infringement is deemed necessary and proportional. 
"The Constitution doesn't provide a mathematical formula on how you should weigh this, but you have to weigh these things against each other," Klamberg explains. 
Thelin goes further. According to him there is nothing to prevent an extended, much more far-reaching version of this spring's emergency pandemic law being rushed through parliament. 
"What could be done now is either to reactivate that temporary law from spring, making it possible to close bars, shopping malls, what have you, or you could add further requirements, say, if you wanted to affect the transport system, or even if you want to have a curfew," he argues.
"That would be allowed. A reformed Contagious Diseases Act would be fully in line with our Constitution."
It wouldn't take too much either, he argues. 
"I imagine if you wanted to amend the Contagious Diseases Act along the lines that I've discussed, you could do that in 14 days, or let's be generous and say a month, you could have that law in place." 
So if the government could put a new emergency pandemic law in place, why doesn't it? 
According to Joakim Nergelius, a professor of constitutional law at Örebro University, the changes Sweden's opposition forced upon the April law made it too cumbersome to use. 
"The mechanism was that if the government decided something, under that law, it would be put under the parliament's eye the next day in order for the parliament to authorise it," he says.
"That was a very strange construction. Because if you imagine a real crisis, where the government needs to make quick decisions, what would happen if the parliament said 'no'?" 
"But due to criticism from lawyers, and from the opposition, it became kind of a compromise and totally useless," he said. 
Sweden's health minister Lena Hallengren makes the same argument, blaming the opposition Moderate party for neutering the law. 
"It unfortunately in the end wasn't so useable," she said, saying the requirement to receive parliamentary approval made the law pointless. 
"It was a big problem, because it meant we need to do a big job. We wanted to have a mandate from the parliament to make quick decisions, and we didn't get that mandate." 
She argues that this means there is no point reviving the April law. 
"I think that the parliament told us that they didn't want us to have such a big mandate. When we got that no from the parliament, and most of all from the Moderate Party, we have to use other tools." 
So what now? 
The government has started work on a more wide-ranging pandemic law rather than reviving April's temporary law.

But Nergelius, despite understanding the dilemma of the government, thinks that it should have been legally better prepared and started work on this earlier. 
"Then it would have been ready now, for the second wave or whatever we call it, or for instance on the first of January, which would have been much better."
Klamberg argues that the requirement under the emergency pandemic law that government ordinances be submitted to parliament shouldn't have been seen as such an obstacle. 
It may have delayed the issuance of extra ordinances in spring, but if the law had been extended, the government would have had a lot of time to prepare. 
"They could have prolonged the temporary law and then prepared draft ordinances with supporting materials," he says. 
"[The level of infection] went down during the summer, so they've had time to draft rules. The government lawyers should have draft laws on their desks ready to go." 


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