Response to interpellation 2023/24:851 on the Council for Legislation's position
Translated from Swedish by AI; the translation may contain errors. The Swedish text is the original.
Summary AI, written in advance
I consider the Council for Legislation's work to be an important part of the legislative process that strengthens the quality of the legislation 1. I believe that the government carefully analyzes the Council for Legislation's views and reports its position in detail 1. I consider that practice is already established and that no legislative regulation is needed to state reasons for deviating from advisory opinions 1. I want to expand the scope of the review to include constitutional proposals regarding fundamental freedoms and rights 1 2 and emphasize that the Council for Legislation's opinions are taken extremely seriously 3. I believe that the government has handled the views seriously by planning an evaluation 3. MP considers that the preparation was hasty with a short consultation period 4 and argues that there is a great need to strengthen the Council for Legislation's position 4.
Written by AI in advance and may contain errors. The numbers lead to the speech a statement builds on; check against the text below.
Justitieministern Gunnar Strömmer (M)
Mr. Speaker! Rasmus Ling has asked me whether the government will in the future be more responsive to the Council for Legislation's opinions, whether I will appoint an inquiry into strengthening the Council for Legislation's position, and how I view the proposal to strengthen the Council for Legislation's position in such a way that in cases where the government departs from the Council for Legislation's views, the government shall state the reasons for this.
Let me begin by emphasizing that the Council on Legislation's work constitutes an important part of the legislative process. That review involves a preliminary check of whether the government's proposals for legislation are compatible with the constitutional laws and with the legal order in general, and not least how the proposals stand against the requirements of the rule of law. The review thus contributes to strengthening the quality of the legislation.
The Council on Legislation's special role in the legislative work has a long tradition. Since its establishment in 1909, the Council on Legislation's role and significance in the Swedish legislative process has been strengthened. After the introduction of the 1974 Instrument of Government, it became mandatory to obtain an opinion, and more types of laws have come to be included in the Council on Legislation's scope of review. This mandatory element was introduced as recently as 2011.
If the government refrains from requesting an opinion regarding legislative proposals within the mandatory area, there is an obligation for the government to justify why the Council on Legislation has not been consulted. There is also a possibility for the Riksdag to decide to request an opinion from the Council on Legislation if the committee makes a different assessment regarding the obligation to request an opinion.
There is no obligation to provide justification when the Council on Legislation rejects a proposal, but the government makes a different assessment. This lies in the nature of the matter because the opinion has an advisory character. Despite that, it is a self-evident fact that the Council on Legislation's views carry great weight in the continued legislative work and that the government, in a bill, presents its view on the Council on Legislation's views.
The government has, during the first half of the parliamentary term, initiated and implemented a large number of urgent reforms in several different areas. This applies in particular to the fight against organized crime, where it has been necessary to take pattern-breaking measures to push back the gangs and increase safety in society. The extensive reform work has had to be carried out at a high pace.
For the government, it is a matter of course to always carefully analyze the Council on Legislation's views. The government's position on the views - in particular when a proposal is rejected - is always reported in detail in the bill. In several cases, adjustments have also been made following views from the Council on Legislation.
That the government's position on the Council on Legislation's views is always presented in the bill is a well-established practice that has applied for a long time. I can therefore not see that there is any need at this point to legally regulate an obligation to state the reasons why the government does not follow the Council on Legislation's advisory opinion.
The question of whether the Council on Legislation's formal position in the legislative process should be further strengthened is complex and raises questions about how the realm is governed and our parliamentary system of government. To achieve a further strengthened position for the Council on Legislation, constitutional amendments with a broad political anchoring are required. I think it should be noted that the 2020 Constitutional Committee has submitted a proposal which means that the requirement to obtain an opinion from the Council on Legislation is extended to also include constitutional proposals regarding fundamental freedoms and rights. That proposal is currently being prepared within the Government Offices.
The Council on Legislation already has a strong position today, and it shall continue to be protected. I am happy to continue a dialogue on this with the parties in the Riksdag in order to long-term protect and develop the quality of the legislative process.
Rasmus Ling (MP)
Mr. Speaker! I thank you very much for the answer from the Minister for Justice to this interpellation.
In 2018, the Moderate Party secretary, who at the time was Gunnar Strömmer, said the following: It is deeply harmful to disregard the Council on Legislation's objections. As Minister of Justice, Gunnar Strömmer has in various contexts said: We shall, of course, see what the Council on Legislation has pointed out.
I mean that it is more than a nuance difference between these two ways of expressing oneself. I mean that they are different approaches, Mr. Speaker.
This interpellation is written against the background of the sharp criticism that Gunnar Strömmer, on repeated occasions during the previous and the period before that, directed against the then government and how it acted towards the Council on Legislation.
Gunnar Strömmer was very clear before he became Minister for Justice that he wanted to see changes regarding the position of the Council on Legislation and that it should be strengthened. There were also concrete proposals from the Moderates on how this could be done.
In the response that arrived here today, it unfortunately shines by its absence. I think, Mr. Speaker, that it is a pity.
As the Minister for Justice says, the Council on Legislation received greater weight in 2011. This was due, at that time, to a cooperation that the government parties in the then Alliance had with the Green Party in that constitutional investigation. It was notably Moderate Henrik von Sydow and Peter Eriksson from the Green Party, but naturally also others.
There were quite a few constitutional issues that one actually found a consensus on. In the end, it was all parties. But I want to assert, Mr. Speaker, that this would not have happened if the Miljöpartiet and the alliance parties had not pulled in the same direction on these issues at this time.
Mr. Speaker! The Minister for Justice says that he wants to have a dialogue with the parties in the Riksdag about this. I propose a parliamentary committee for that purpose. I believe that it would be a good way forward.
I shall also say, Mr. Speaker, that I mean that there may be reasons for a government, regardless of color, to submit proposals even if the Council on Legislation has objections. It is the government that governs the realm. It is the Riksdag that is the legislator. There have been reasons in the past. There may be reasons in the future as well.
Looking historically, one sees that there have been many examples. I can mention two. The Council on Legislation had objections regarding the consent legislation applicable to sexual offenses. That was also the case in a completely different matter, which concerned Cementa on Gotland and the regulatory framework surrounding it. These are two examples where the Council on Legislation had objections but where the government and subsequently the Riksdag went against them.
I am sure, Mr. Speaker, that Gunnar Strömmer has prepared himself with examples of when the previous government did not follow the Council on Legislation - he is, of course, free to do so. From my side, the point is not to pile up examples of what this government or the previous government has done, but my point is that it shall be better going forward.
I believe, Mr. Speaker, that in a governing position, one very easily ends up in a situation where one does not give the Council on Legislation the weight that it actually should have, and I believe that it has ended up that way all too often.
An example in the recent past during the term is the visitation zones, which the Council on Legislation thought should be made time-limited. They also completely rejected the law on ID checks from the Ministry of Infrastructure as well as the proposal regarding anonymous witnesses.
The question is therefore whether the government considers the opinions of the Council on Legislation to carry particular weight.
Justitieministern Gunnar Strömmer (M)
Mr. Speaker! Thank you, Rasmus Ling, for the opportunity to discuss these important issues today!
To begin with, I just want to confirm the importance of us having a strong and robust Council on Legislation in our legislative processes.
When it comes to the historical description, I agree with Rasmus Ling, and I say this not to review but merely as an account of how it actually has been: Traditionally, it has been social democracy that has entered from a fairly clear position of popular sovereignty and wanted to avoid what has been perceived as the risk of lawyers who are not elected obtaining too much influence at the expense of the elected.
Against this has stood a kind of separation of powers perspective where it is seen that different parts of our democratic constitutional state also play an important role when it comes to legislative issues. This also includes the possibility of having a more robust preliminary review in the form of a Council on Legislation, especially when it concerns highlighting legislative proposals from a constitutional point of view or from a fundamental freedom and rights point of view. The progress that has been made most recently with the 2009 reform in this area has been important to give the Council on Legislation the position that the Council on Legislation rightfully should have.
When it comes to the reform ambition, it is intact. I myself sat in the latest constitutional committee. The committee perhaps did not explicitly have this on its table according to the directives that came from the previous government, in which Miljöpartiet also participated, but some of us introduced questions into the constitutional committee's work. This resulted, among other things, in a proposal that I myself put forward in that committee, namely that the Council on Legislation's opinion shall also be sought on questions concerning freedom and rights issues in Chapter 2 of the Instrument of Government - there is, I think, a logic in that the Council on Legislation's role is particularly significant precisely when it comes to fundamental freedom and rights issues.
That proposal also received support and is included in the Fundamental Law Committee's proposal which we are currently processing. Without anticipating that processing, much speaks in favor of the fact that it may be included in what we will eventually lay before the Riksdag, which is an expression of strengthening the Council for Legislation's role, not least when it comes to fundamental questions of civil rights and liberties.
How should one then handle the Council on Legislation's opinions in practice? It is quite true that on a number of occasions in opposition I have been very critical of how previous governments have handled, in particular, the most far-reaching criticism from the Council on Legislation. One example Rasmus Ling himself mentioned, namely the handling of Cementa on Gotland with very fundamental objections. Another such issue concerned the so-called unaccompanied minors, where the Council on Legislation wrote that "the limit has been reached here for what is acceptable in terms of how legislation can be designed."
This does not, of course, mean that one should have a rigid stance toward every statement. One must evaluate and analyze the statement and sort out what are fundamental objections regarding basic freedoms and rights and the rule of law on the one hand, and more procedural or technical legal points on the other, where it is natural that the fundamental rights objections carry very great weight.
If I am to take a concrete example to echo what Rasmus Ling raised, namely the so-called security zones, it is quite correct that the Council on Legislation requested a time limit. What we achieved was in practice exactly what the Council on Legislation requested: We specified a point in time at which this legislation shall be evaluated, we described the process for how it should proceed, and we concluded by saying that if the evaluation shows that the legislation does not measure up, it shall not remain in place either.
Rasmus Ling (MP)
Mr. Speaker! As Gunnar Strömmer himself says, he has been critical of actions regarding statements on a number of occasions. What I mean is that one should have carried that attitude with them in a clearer way when one has actually stepped into the government itself.
It is possible to take the approach that the role of the Council on Legislation should be changed constitutionally, which the Moderaterna have previously wanted and Gunnar Strömmer has previously argued. I think, for myself and for the Miljöpartiet, that it would have been good. Exactly how it could occur must become the subject of discussion between the parties in a profound way, but in that case, such a discussion must be initiated.
Mr. Speaker! Even if one does not go that way and make a change purely constitutionally, one can of course choose to act according to the weight one believes the Council on Legislation should have - that is, to value an opinion according to the regulatory framework one would have preferred to see, which would mean that the Council on Legislation's opinions would carry more weight than they have been allowed to do on a number of occasions during this mandate period.
The visitation zones were one example. A perhaps even clearer example was the law on ID checks from the Infrastructure Department – still quite close to Gunnar Strömmers desk – where the proposal was, therefore, rejected but the government still proceeded with it, furthermore in a very forced process.
Mr. Speaker! The Moderates had two concrete proposals in opposition. One was that a requirement for a renewed Council of State review should be introduced in cases where the Council of State rejected a proposal. The other was that a two-thirds majority in the Riksdag should be required to be able to go against the Council of State.
I would like to ask how Gunnar Strömmer views these two proposals today. There may possibly have been even more proposals that I have missed; in that case, the Minister is welcome to also account for those. But these two, I think, are clear and very interesting. It would be positive to look at this in a parliamentary committee, because I believe that it would strengthen the position of the Council on Legislation in a very clear way.
The Moderates have also submitted a motion that a special investigation should be appointed to look at how the Council for Legislation's role could be strengthened. The main proposer was Karin Enström, who is thus Gunnar Strömmers successor in the position of party secretary for the Moderates.
Justitieministern Gunnar Strömmer (M)
Mr. Speaker! Let me begin by emphasizing that I personally and the government take the Council on Legislation's opinions extremely seriously. This is expressed, among other things, in how we treat the Council on Legislation's views in the continued legislative process.
If I only base this on the Ministry of Justice's work, the Council on Legislation process is prepared very carefully, of course. This applies to both what we send as a referral to the Council on Legislation and the meetings that take place with the Council on Legislation regarding this. We also bring home the comments that come from the Council on Legislation and try as far as possible to meet the Council on Legislation in these comments. Furthermore, we also develop in the bill how we have handled the issues.
Rasmus Ling raises the issue of the security zones. Let me therefore, for this purpose, read out exactly how we handled the Council for Legislation's views in that part.
First, however, I just want to say that the opposition wanted to assert that democracy was about to collapse because of these visitation zones. There was no limit to what kind of blow against Swedish democracy and the protection of civil rights and liberties these zones constituted. On that point, the Council on Legislation gave the opposition completely wrong, because it was established that the proposal was compatible with fundamental civil rights and liberties. On the other hand, we came to more technical legal issues and procedural issues.
Let me therefore explain how we described this in the bill: "The Council on Legislation considers that the regulation and its application should be monitored and that a follow-up can be ensured by making the regulation time-limited."
Similar views on time limits are put forward by several referral bodies, including Centrum för rättvisa and the Parliamentary Ombudsmen. The importance of follow-up is also emphasized by, among others, the Swedish Crime Prevention Council, the Swedish Police Union and the Swedish Police Authority.
The proposed regulation on security zones entails a risk of increased infringement on personal privacy. Furthermore, it means that body searches and searches of vehicles will be allowed to be used under new conditions. Just as the Council on Legislation, among others, considers that the regulation should be evaluated, the government therefore considers that the regulation should be evaluated. An evaluation shall be carried out, either through an inquiry or a government mandate to the relevant authority. In the evaluation, in line with what the Swedish Police Authority requests, the use of security zones from an effectiveness, equal treatment, and privacy perspective, as well as the practical application and the continued need for the regulation on security zones, shall be analyzed.
The Council on Legislation wants to see a pre-determined point in time when an evaluation can be initiated, which gives the government the opportunity to plan well in advance for how the follow-up shall be carried out. A sufficiently extensive basis is required so that a robust and well-founded follow-up of the new regulation can be carried out. The evaluation shall therefore be initiated approximately three years after the entry into force. By deciding now when the evaluation shall take place, the government sees no need to time-limit the legislation.
Then we develop how the Swedish Police Authority shall prepare this methodically by documenting every individual search, and so on.
What I mean is that this is an extraordinarily serious way to address the Council on Legislation's principled and practical views on the merits and to provide a detailed account of the considerations that the government has made, and it is an expression of the importance we attach to the Council on Legislation's reviews of our legislative proposals.
Regarding the reforms that Rasmus Ling points out, I have a certain correction regarding the qualified majority. I want to remember that we expressed that it could be relevant in connection with fundamental civil and liberty issues, if it concerns the European Convention or more fundamental rule of law issues. I will gladly return in the next post and explain my position in those parts.
Rasmus Ling (MP)
Mr. Speaker! My criticism regarding the security zones, the visitation zones, has been addressed in substance. They are not measures that are good. I mean that the police should have sufficient opportunities regardless, and so on. We have had that debate, and I am happy to have it again. I think the preparation of the matter was sloppy with a short referral time for the referral bodies.
I have never spoken about the downfall of democracy in connection with this matter. That type of remark should not be hurled at me by the Minister for Justice. If someone else has done so, one must address it in that direction, but those words have not come from me.
Regarding the weight of how one handles the Council on Legislation's criticism, anonymous witnesses are perhaps a better example. The Council on Legislation rejects on principled grounds, and one also has a number of other objections. If we are to be honest, that area is a significantly larger reform of the Swedish justice system than visitation zones.
Regarding the Moderate proposal, I read that it concerns a two-thirds majority regardless of what issue it concerns. I googled this, and that was how it was quoted. If it was designed in some other way, it may have happened.
Mr. Speaker! It would have been good if the questions had been subject to a committee. I believe there is a great need to strengthen the position of the Council on Legislation. I believe it is possible for the parties to do this broadly, so that it does not become a situation where one party wants to do this in opposition but then, in a government position, does not think it is as important.
Justitieministern Gunnar Strömmer (M)
Mr. Speaker! Once again, I thank Rasmus Ling for the opportunity to discuss these important issues. We can be in complete agreement on the importance of having a well-functioning preliminary review as an important element in our legislative process. The Council on Legislation is our Swedish model for that, and I welcome the reforms that have been made in recent years, not least in the interaction between the bourgeois parties and the Green Party, to achieve a more robust role and position for the Council on Legislation.
I am also open to continuing to discuss the forms and the content of further reforms aimed at strengthening the position of the Council on Legislation (Lagrådet). I am pleased that we in the constitutional committee, which concluded its work just at the beginning of the mandate period, received such an important reform, namely to strengthen the position of the Council on Legislation when it comes to fundamental civil and human rights issues in the Instrument of Government. To the extent that we return with the proposal to the Riksdag, I believe in a broad consensus regarding this. I am happy to further discuss other potential strengthenings of the position of the Council on Legislation.
The second is more practical here and now, namely that I carry with me in my work a great respect for the Council on Legislation. I dare to assert that the government and the Ministry of Justice devote a great deal of care to the referrals sent to the Council on Legislation and to the handling of the opinions that come from the Council on Legislation.
In a democracy of our caliber, the government and the legislature must ultimately choose a path, especially when one finds oneself in a situation where different legitimate interests stand against each other and a balancing must take place. On the other hand, it is absolutely fundamental that every legislative product lives up to the requirements of the constitution and the European Convention. I dare to assert that our legislative products do.
Source: The Swedish Parliament. The speeches come from the open data of the Riksdag, translated into English by AI, which may contain errors.