13.1 Introduction
Migration and the rights of migrants pose a challenge to state sovereignty. While it is widely accepted that states have exclusive control over the rules governing their own nationality and are only requiredFootnote 1 to admit their own citizens into their territory, there are limits to this control when it comes to migrants; asylum seekers, in particular.Footnote 2 The right to seek and enjoy asylum and the principle of non-refoulement put constraints on a state’s power to decide who has a right to entry, as they provide the individual with a right, if not to remain in the territory, at least to have one’s claims for protection properly assessed, and to not be deported during the process. In an increasingly globalised world, this challenge to state sovereignty has become an issue of growing controversy. Controlling migration and the right to entry has become, as Dauvergne puts it, a core element, even ‘the last bastion’, of sovereignty.Footnote 3 From this perspective, the arrival of migrants in a territory, in particular migrants who may be able to challenge the measures of control imposed on them, is easily perceived as a threat. In the context of globalisation, controlling borders may also be linked to protecting national identity, which includes some and excludes others. Among the excluded are migrants, but also in some cases those who do not conform to the image of the ‘ideal’ citizen (for example minorities of different kinds).
While the issue of migration has long been debated, in recent years it has climbed up the political agenda at the global, regional and national level. Although few states in practice have ever had a particularly generous migration and/or refugee policy,Footnote 4 it could be argued that there has been a change in attitudes and in the tone of the debate over the last decade or so. Possible reasons for these changes include the securitisation of migration following the 9/11 attacks, the 2007/2008 economic crisisFootnote 5 and the rise of right-wing populism and nationalism. In Europe, the ‘refugee crisis’ of 2015/2016 had the effect not only of opening the door for measures aimed at controlling migration that would have previously been considered extreme, but also of pushing limits in other fields, such as negative rhetoric about migrants and migration, eroding migrants’ rights, and a deteriorating respect for key elements of the democratic system, including the legislative process. The resilience of legal systems established to safeguard individual rights and the democratic system was challenged during the ‘refugee crisis’ and, it could be argued, has continued to be so in its aftermath. The desire not to end up in the same situation (i.e., the ‘crisis’) again, combined with the rise of right-wing populism targeting migration as a threat to Western societies, in many countries in Europe and elsewhere has meant that the delicate balance between the interests of migration control, rights protection, and stability in the democratic process has been tilted in favour of the first of these interests.
It has been argued that extensive restrictions of migrants’ rights in a time of populism is a sign of constitutional crisis, in the sense that incremental and systematic undermining of human rights is the result of democratic decay.Footnote 6 On the other hand, it has also been proposed that while democratic decay and constitutional crisis may often coincide with restrictions of migrants’ rights through law and policy, the latter is not by default an indication of the former.Footnote 7 As Aleinikoff suggests, restrictive migration policies and intolerance against migrants in a society ‘may also be the result of everyday politics, as democracies define and redefine understandings of membership and the benefits that attach thereto’,Footnote 8 initiated by, for example, economic considerations or perceived threats to national security. In both cases, a central issue is the possibilities and limits of legal resilience against the dismantling of migrants’ rights.
There are several reasons why Sweden offers an interesting case for a discussion on legal resilience in this context. One is the reorientation of Swedish migration law and political discourse on migration in the wake of the ‘refugee crisis’.Footnote 9 This reorientation, it could be argued, is due both to the actual strain put on the Swedish reception and welfare systems by the large influx of refugees in 2015, and to the framing of the events of late 2015 and early 2016 as a crisis not so much for the refugees as for Swedish society. Much effort has since gone into preventing Sweden from ending up in the same situation again. Legislation limiting migrants’ rights in various ways has been introduced, and the rhetoric has changed from ‘Refugees Welcome’ to casting suspicion on asylum seekers and their motives, labelling those arguing in favour of a return to the previous policy as ‘irresponsible’, ‘irrational’, and ‘goodness junkies’. A second reason concerns ‘crisis’ as such. The narrative of crisis – having been and still being in a state of crisis, avoiding a future crisis – we argue, has played an important role in underscoring the view of migration and migrants as a threat to the welfare state, law and order and to national security. This view in turn has been used to legitimise a migration policy based on the aim to control and deter rather than to manage migration in a way that is respectful of both state sovereignty and the rights of the individual. This narrative has also been used to facilitate and legitimise a revision of Sweden’s self-image that claims generosity and solidarity with those in need as two of its defining features.Footnote 10
A third reason concerns the rise of right-wing populism in the country and the effects this has had on, at least indirectly, national migration policy. For many years, Sweden was an exception in Europe where populist parties increasingly gained influence and power. While in the neighbouring countries of Norway and Denmark, right-wing populist parties secured access to formal political power decades ago, their counterpartFootnote 11 in Sweden – the anti-immigration, nationalist party the Sweden Democrats (SD) – for a long time were on the political margins. Any interaction with SD on the part of the mainstream parties prompted considerable stigmatisation and even though SD gained seats in the Riksdag in the 2010 general election, the party remained fairly isolated in Swedish politics. This changed, however, in the aftermath of the 2015/2016 ‘refugee crisis’. The ‘crisis’ not only led to a U-turn in Swedish migration policy towards a substantially more restrictive approach to migrants and migrants’ rights than what had previously been the norm; it also became less important for mainstream politicians on the right to avoid associating with SD and their stance on migration and migrants’ rights.
Against this background, the aim of this chapter is to discuss, from a Swedish perspective, the possibilities and limits of legal resilience against the deconstruction and erosion of migrants’ rights amid the rise of populism. We also discuss whether limitations on migrants’ rights in the Swedish context should be taken as signs of democratic decay and constitutional crisis. In the context of these two issues, we explore the potential implications of the ‘crisis’ rhetoric in terms of how laws are drafted and implemented. We start by presenting our points of departure regarding the concept of ‘populism’ and populism in Sweden.
13.2 ‘Populism’ and ‘Populists’
13.2.1 On the Concept of Populism
Defining ‘populism’ is not an easy task.Footnote 12 There are many different views and interpretations of the concept that Gagnon et al have described as ‘less of a fixed entity […] and more of a shapeshifting phenomenon’.Footnote 13 Mudde in 2004 defined populism as ‘an ideology that considers society to be ultimately separated into two homogeneous and antagonistic groups, “the pure people” versus “the corrupt elite”, and which argues that politics should be an expression of the volonté générale (general will) of the people’.Footnote 14 Mueller suggests that populism is ‘a particular moralistic imagination of politics, a way of perceiving the political world which opposes a morally pure and fully unified – but […] ultimately fictional – people to small minorities, elites in particular, who are put outside the authentic people’.Footnote 15 Mueller adds that in addition to this criticism of elites, populists also necessarily claim that only they ‘properly represent the authentic, proper, and morally pure people’.Footnote 16 Moffitt speaks of populism in terms of a certain political style rather than a specific set of views.Footnote 17 Nevertheless, in the contemporary literatureFootnote 18 and discourse, populism is often classified as being either ‘right’ or ‘left’. Right populism, in the words of Gagnon et al, is ‘characterized by emotionally-charged political appeals to addressing crises through neonationalism, masculinism, Othering, bordering, xenophobia, sexism, racism, phantasmatic ethnic golden-ageism, a disregard for liberal democratic norms, and so forth’.Footnote 19 Left populism, on the other hand, is ‘said to hold the potential to address crises in a manner which secures the democratic project […] by deepening the legitimacy of real-existing democracies and upholding civic, political, and economic rights alongside material egalitarianism’.Footnote 20
Regardless of the political ideology to which a certain brand of populism leans, there are some common denominators. These are criticism of elites (even if one is part of the political establishment) and anti-pluralism (to claim that they, and they alone, represent the people and their true interest, and that anyone not supporting the populists might not be a proper part of the people).Footnote 21 Mueller holds that the anti-pluralism of populists can be described as a form of exclusionary identity politics, and that this can be a danger for democracy as pluralism is at the core of any real democracy.Footnote 22 Another factor central for populism is crisis, real or perceived, which acts both as a hotbed for populism, creating a space for its emergence (the external perspective), and as a tool for populists to create a situation in which ‘the people’ can be united against a threatening Other, and be more susceptible to arguments in favour of strong leadership and fast political action in order to prevent the crisis from getting worse (the internal perspective).Footnote 23 On the internal perspective, Moffitt argues that it is important to ‘acknowledge the performance of crisis as an internal feature of populism’Footnote 24 to understand how populists trigger crises in order to create a situation in which they can gain and exercise power.
A few words should be said here about populism and constitutionalism. Modern constitutionalism, Loughlin and Walker argue, is ‘underpinned by two fundamental yet antagonistic imperatives: that governmental power ultimately is generated from “the consent of the people” and that, to be sustained and effective, such power must be divided, constrained and exercised through distinctive institutional forms’.Footnote 25 This common understanding of constitutionalism as a demand for limited government is challenged by Barber who argues that constitutionalism also has a positive dimension in the sense that it ‘requires the creation of an effective and competent set of state institutions’.Footnote 26 Populism, on the other hand, Mueller holds, is often described as ‘inherently hostile to mechanisms and, ultimately, values, commonly associated with constitutionalism: constraints on the will of the majority, checks and balances, protection for minorities, or, for that matter, fundamental rights as such’,Footnote 27 and as preferring direct interaction with the people over communicating through institutions and organisations.Footnote 28 As Gustavsson has explained, populists disapprove of the rule of law, freedom of speech, freedom of association and legitimate opposition; they love majority rule but dislike political liberalism.Footnote 29 Populists, Mueller holds, will always claim that they (alone) represent the people and their true interests.Footnote 30 The populist leader is determined that it is only he or she who can legitimately represent the people. Showing that one is not part of the corrupt elite by, for example, not being ‘politically correct’ is a crucial element in this regard. The fact that there may be other ideas and interests that exist in society is irrelevant for a leader of this kind. Moreover, Mueller points out that while populist parties by conventional wisdom may be seen primarily as protest parties in opposition to government, populism in government is not self-contradictory since all failures can continue to ‘be blamed on elites acting behind the scenes’.Footnote 31 Mueller identifies three distinct characteristics of populist government: colonisation of the state; mass clientelism as well as discriminatory legalism; and finally, repression of civil society.
13.2.2 Populism in Sweden
While populism, as discussed above, can be either right- or left-oriented (or both), what we mean when we talk about populism is usually right-wing populism, or radical right populism.Footnote 32 The Swedish case is no different. While for many years Sweden did not have any successful populist or extreme right party (with the exception of the New Democracy Party, which only lasted a few years in the early 1990s), the Sweden Democrats, as mentioned in the introduction to this chapter, in the past decade or so have steadily gained ground.Footnote 33 The party has moved a long way towards becoming a part of mainstream politics: they have, as Hellström and Nilsson put it, evolved from being perceived as a loud organisation of angry young men with clear Neo-Nazi tinges around 1990 to now instead trying to become a party for the common man, attracting voters from all other parties including those who abstain from voting.Footnote 34 Since Hellström and Nilsson made these reflections in 2010, SD have moved steadily in the same direction, now being the one of the largest parties and a powerful player in Swedish politics. The fact that SD over the years have gone through a number of scandals concerning violent, racist, anti-Muslim and anti-Semitic statements made more or less clandestinely by its representatives on different levels, seems not to have halted this move into the mainstream, or indeed not to have done much damage to the party’s support base.
So, what kind of political party is the Sweden Democrats? Commentators and scholars have, drawing on understandings of populism such as those outlined in the previous section, presented several different definitions: that it is a populist party, a radical right nationalist party, a predominantly nationalist party, or an authoritarian populist party. According to their 2019 political manifesto, SD is a ‘social conservative party with a nationalist basic outlook’Footnote 35 that aims to combine the best elements from traditional ideologies on the right as well as the left of the political spectrum.Footnote 36 SD also defines itself as a party emphasising the importance of (national) identity and of identification with common values.Footnote 37 They strongly oppose multiculturalism and instead favour the assimilation of migrants into Swedish society with the aim for them to adopt Swedish majority culture instead of their own. On migration, the SD party manifesto states that SD does not oppose migration completely, but that migration to Sweden must be maintained at an acceptable level and not be of a kind that threatens national identity, welfare or security. The right to asylum, it is stated, should be limited (and appears to mainly apply to individuals seeking protection from armed conflict or disasters) and asylum policy should primarily focus on assisting refugees in their own countries.Footnote 38 It can be noted that the terminology used in the previous party manifesto, adopted in 2011, was more expressive with regard to ideas such as that of ‘inherited essence’Footnote 39 and the benefits of a strong national identity and a minimum of linguistic, cultural and religious differences to support social solidarity, stability and safety.Footnote 40 The position on migration and asylum in 2011 was basically the same as it is at present.
The wording of the 2019 party manifesto should be understood in relation to statements such as those made by the Sweden Democrats’ party leader, Jimmie Åkesson, in a speech held at the party’s 2019 national conference. The speech was permeated by nativist ideology.Footnote 41 Åkesson spoke of how immigration has destroyed Swedish society, that there has to be a negative balance in migration (i.e. more returns than arrivals) and that the current situation in Sweden (‘Sweden is torn apart’) is all due to the catastrophic migration policy.Footnote 42 He made it clear that SD is the only party that knows how to turn the tide and ‘make Sweden great again’, and that left-wing liberals are all to blame. With his statements, Åkesson ticks all the boxes for a right-wing populist with a xenophobic nationalist ideology: he is critical of the elite; he specifically speaks in terms of an ‘us’ opposed to ‘them/the Other’; he describes Sweden as being in a state of crisis from which his party is the only saviour; he speaks of a single national identity and sees migration as the main threat to the nation and society.Footnote 43 These and other similar statements firmly place SD in the right-wing populism category. In light of the declared aim of SD to become the dominant political party in Sweden, and the fact that in the 2018 general elections they became the third largest party, SD’s ambitions and position on migration should not be taken lightly.
13.3 Swedish Migration Law in Light of the 2015 ‘Refugee Crisis’Footnote 44
13.3.1 On Swedish Asylum Law and Policy before 2015
The right to asylum is not included in the Swedish Constitution. The right to international protection, however, has been regulated in Swedish law for decades. For a long time, Sweden was known for its generous and fair asylum policy and in the 1970s and 1980s, approval rates were relatively high. In the 1990s, however, Swedish asylum policy gradually became more restrictive, presumably as a result of the increasing trend of securitisation of migration, the adjustment to the Schengen system and, towards the end of the 1990s and onwards, harmonisation with EU law in the area of migration and asylum.Footnote 45 Despite the increasing Europeanisation of migration and asylum policy generally, Sweden retained its reputation as being comparatively generous in terms of both approval rates and reception conditions, exceeding the EU minimum standards at least regarding reception. Moreover, as a rule, Sweden granted permanent residence permits to persons in need of protection.
Exceptions were nevertheless made on several occasions to this generous approach. Such exceptions were motivated by a declared need to curb the number of asylum seekers arriving in Sweden. Early examples include the so-called ‘Lucia decision’ of 1989, which limited the possibilities of being granted asylum in Sweden to Convention refugees only and to individuals with particularly strong protection needs,Footnote 46 and the introduction of visa requirements for citizens from former Yugoslavia in 1992 and 1993.Footnote 47 These restrictive measures were all framed as a necessary reaction to a crisis, the crisis being that there were too many asylum seekers arriving during a short period of time, and that Sweden was unable to cope with the influx, including providing reception conditions to an acceptable standard.Footnote 48 Referring to ‘crisis’ and ‘exceptional circumstances’ as a means of rationalising and legitimising certain measures was thus nothing new or untested prior to 2015.
13.3.2 The 2015 ‘Crisis’: Consequences for Legislation, Policy and the Influence of Populist Approaches to Migration
‘Crisis’ became the key watchword in the autumn of 2015, when large numbers of asylum seekers, many from Syria, arrived in Europe. Towards the end of November 2015, more than 149,000 asylum seekers had arrived in Sweden since the beginning of the year.Footnote 49 This was almost twice as many as the year before, and more than 100,000 more than the number that was seen to have caused a crisis in 1989.Footnote 50 The large influx caused the then Swedish Prime Minister (Mr Stefan Löfven, Social Democrat), to declare in November 2015 (in sharp contrast to his previously generous stance towards refugees and asylum seekers, declared repeatedly in public speeches and debates) that this was a crisis situation and that Sweden was on the brink of collapse. Löfven declared that Sweden had done far more than its share and was in dire need of ‘breathing space’Footnote 51 and that the influx of asylum seekers immediately had to stop or significantly decrease in order to avoid core parts of the social welfare system breaking down.Footnote 52 The vast majority of the parties in the Riksdag agreed with this understanding of the migration situation as a serious crisis for Sweden and for the need to adopt drastic measures to curb the influx. This included parties generally positive towards migration such as the Green Party (which was in a coalition government with the Social Democrats at the time).
The measures presented in November 2015 aimed to significantly curb the number of asylum seekers arriving in Sweden in two ways. One was to make it more difficult to get to Sweden and claim asylum. This was to be achieved through introducing border controls and identity checksFootnote 53 (in particular, at the Danish border), making it difficult to reach and enter Swedish territory without a valid passport – something which most asylum seekers do not possess. The first border controls and identity checks were introduced in late November 2015 and an ordinance on identity checks entered into force in December 2015. The border controls are still in place at the time of writing, the basis for them today being national security rather than the need to curb migration flows.Footnote 54 The effects for migrants, however, remain the same.
The second set of measures aimed at making Sweden less attractive as a country of asylum. This included reducing the number of protection grounds and grounds for residence permits to a minimum, keeping only those to which Sweden is bound by its international obligations, further restricting the possibilities of family reunification by limiting access to family reunification only to those who have been granted residence permits on certain grounds and linking it to strict maintenance requirements, and making temporary residence permits (3 years for conventional refugees, 13 months for persons granted subsidiary protection or a residence permit on humanitarian grounds) the main rule.Footnote 55 These are the essential elements of the 2016 Temporary LawFootnote 56 which entered into force in July 2016, replacing the 2005 Aliens Act on matters on which they overlap. The law, which was prolonged in 2019, applied until July 2021. The effects of the Temporary Law as a deterrent to asylum seekers and migrants has been questioned: the decreasing number of asylum seekers in Sweden after the law was introduced in 2016 is likely to have been equally or more related to border controls at EU external borders than to Swedish legislation.
When introducing the deterrence measures outlined above, all imposing severe limitations on migrants’ rights, the crisis narrative – just as it was in 1989 and the early Nineties – was used to legitimise restrictions on migrants’ rights and to justify a policy that clashed with the humanitarian ideals that had constituted an important part of Sweden’s self-image.Footnote 57 The effects of the crisis on the political discourse on migration, however, became more substantial this time around. The crisis narrative, and the notion that restrictive policies on migration are required to deal with said crisis, continued to gain ground after restrictive measures were implemented. The fact that the influx of migrants decreased significantly towards the end of 2015 and the beginning of 2016 did not seem to matter in this regard. Instead, several political parties in the years following 2015 have adopted positions on migration similar to those of the Sweden Democrats regarding, for example, limitations on the right to seek asylum and to family reunification, although so far not adopting the ideological foundations of these positions as well.Footnote 58 In addition, despite the fact that SD do not in any way conceal their position on migration, asylum and migrants, some parties in the Riksdag (the Conservatives and the Christian Democrats in particular) today seem to have considerably fewer misgivings than before about collaborating with SD on various issues, including migration. These changes in migration policy discourse – what is accepted and what is not – are illustrated by the final reportFootnote 59 of the all-party Commission of Inquiry on Migration, made public in late September 2020. The Commission of inquiry, with representatives from each party in the Riksdag, was tasked with laying down the general outlines for a future Swedish migration policy. While the Commission could not agree on a joint final proposal, its conclusions formed the basis for a government bill on making the bulk of the provisions of the Temporary Law permanent by including them in the Aliens Act.Footnote 60 The Riksdag passed the bill, and the legislation entered into force in July 2021. The impact of the crisis narrative is partly visible in the Commission’s conclusions, but even more so in some of the reservations and separate opinions of Commission members. Examples include the Conservatives arguing that Sweden is in an integration crisis as a result of ‘decades of high numbers of immigration combined with a defective integration policy’Footnote 61 and that a restrictive migration policy is the only cure; the Christian Democrats speaking of an ‘integration debt’Footnote 62 which needs to be paid off and that an austere migration policy is required for this to be possible; and SD describing immigration as a threat to fundamental Swedish values and the Swedish ‘Folkhemmet’, and that in order for the tide to turn, asylum-related migration must be ‘below zero’.Footnote 63 Things indeed have changed since the then Prime Minister, Mr Fredrik Reinfeldt (Conservative) in the early 2010s declared that his party would never accept support from or work with SD because of their xenophobic attitudes towards immigration and their political roots.
While some of the political parties in the Riksdag continue to strongly oppose SD on migration policy – the Centre Party, the Green Party and the Left Party being their strongest opponents – it seems clear that the populist, xenophobic SD, formerly regarded as extreme, has been very successful in influencing the political discourse in Sweden on migration, and have achieved this without softening their position. For it is not primarily SD who over the years have become more moderate, even though, as shown above, they have made some efforts to tone down their most controversial ideas (or at least how these are framed). SD’s main ideas on migration, national identity and assimilation remain the same as when they were more or less outcasts in Swedish politics. Instead, it could be argued that the parties on the mainstream right have moved substantially further to the right, thus contributing to normalising and mainstreaming radical right ideas on immigration. Mudde refers to this process as the radicalisation of mainstream political parties.Footnote 64 This mainstreaming also has the effect of normalising the populist radical right, allowing it to become ‘tolerated, and even embraced’Footnote 65 by business, media and political circles. Mudde notes that when mainstream parties have increasingly adopted the frames of the populist radical right, the populist right parties increase not only their electoral base but also their political impact, including influencing government agendas on migration.Footnote 66 This, we argue, is a fair and accurate account of the development in Sweden in the past few years.
Summing up so far, it seems clear that the Sweden Democrats and their populist, right-wing politics, not least in their narrative of migration as a ‘crisis’, have had a considerable impact on the migration discourse in Sweden, including other political parties adopting parts of their agenda. What was mainstream politics before 2015 is today considered by many as left-wing liberal and radical right ideas have become normalised and therefore likely to be more palatable to the electorate. Limitations on migrants’ rights today also appear to be regarded as much less problematic by many mainstream political parties, with keywords for migration policy today including restrictiveness, control, deterrence, and an increased focus on returns. There is also more attention being placed on the need for immigrants to ‘adapt’ to Swedish society, culture and norms, and on the connections between criminality and immigration. However, it would be hard to say for certain to what extent this mainstreaming of populist radical right views on migration and how it has contributed to the erosion of migrants’ rights is a result of constitutional crisis and democratic decay in Sweden per se. This is partly because the restrictive migration laws and policies are not mirrored by excessively restrictive rights limitations on other groups, or attacks on the independence of the courts. In the Swedish case, restrictions on migrants’ rights and democratic decay thus do not seem to be directly linked. In the following section, we turn to the question of how core values or ideals established in the Swedish Constitution may contribute to legal resilience against the erosion of migrants’ rights.
13.4 The Constitutional Framework, Core Constitutional Values and Legal Resilience
In order to understand a country’s core constitutional values, it is necessary to look to its history. A country’s constitutional order and the values it expresses reflect the country’s political development and the ideals and experiences shaping that particular society.Footnote 67 In Sweden, the way in which public power may be exercised as well as the relationship between government, parliament, the courts, government agencies and citizens draws on administrative structures and traditions established centuries ago, with the strong position of public administration being a defining feature. It can be noted that for centuries, institutions of public administration (government authorities, public officials) were where citizens directed their complaints. Courts were less important and relatively inaccessible to the average citizen or resident.Footnote 68 The important role played by public administration remains a key factor in Swedish constitutionalism today.
The Swedish Constitution consists of four fundamental laws: The Instrument of Government, the Act on Succession (from 1810), the Freedom of the Press Act (from 1949, dating back to 1766), and the Fundamental Law on Freedom of Expression (from 1991). Since the seventeenth century, the country has had several fundamental laws entitled the Instrument of Government. A key purpose of the Instruments of Government over the years is to provide the framework for the exercise of public power. The 1809 version of the Instrument of Government focused on separation of powers. In 1921, while this nineteenth-century Act was still in place, parliamentarism was introduced and the balance of power accordingly shifted from the King to the parliament and the government. However, this reshuffle was not reflected in the Constitution: instead, for decades an informal agreement between the King, the parliament and the government on accepting and adapting to the new forms of democracy guided their interactions and the division of powers. Political focus instead was on anchoring the young welfare state more firmly to Swedish society and administration by a number of significant societal reforms. The informal agreement on ‘the rules of the game’ of Swedish democracy were not formalised until 1974 when a new Instrument of Government entered into force, removing the idea of a pure separation of powers from the Constitution and instead formally recognising that the will of the people is supreme. The first article of the Instrument of Government thus reads as follows:
All public power in Sweden proceeds from the people.
Swedish democracy is founded on the free formation of opinion and on universal and equal suffrage. It is realised through a representative and parliamentary form of government and through local self-government.
Public power is exercised under the law.
That all public power proceeds from the people is the core value of the Swedish Constitution and its basic principle. It means that power, at least in theory, lies primarily with the parliament and the parliamentarians (the representatives of the people). The second part of the gateway article, stating that public power is to be exercised under the law, reflects two additional core values, namely the principle of legality and the principle of objectivity.Footnote 69
That all public power in Sweden proceeds from the people means that the country belongs to a minority of modern parliamentarian democracies which does not apply the Montesquieuean separation of powers, with its emphasis on the role of the courts and with substantial powers accorded to the executive branch. Consequently, Sweden does not have a constitutional court. Instead, the Instrument of Government provides all courts and public bodies with the right as well as the duty to put aside any legislative act which contradicts the Constitution or which has been decided in a way not in accordance with the constitution.Footnote 70 A system where judicial review is performed only when the legislation has entered into force and its application in a concrete case has led to difficulties related to the constitutional aspects of the act, has been referred to as decentralised or weak-form judicial review.Footnote 71 This limited approach to judicial review – which Sweden shares with the other Scandinavian countries – must, however, be understood in the context of the constitutional history and the parliamentary-centred conception of democracy in these countries, both of which differ from many European states where constitutional courts play a key role, including in their review of acts passed by parliament.Footnote 72 This approach should also be seen in light of socio-political factors common to the Scandinavian welfare states, such as faith in the state as a protective institution and an emphasis on the common good of the community rather than on individual rights.Footnote 73
There is indeed a constitutional body – the Council on Legislation – tasked with advising the government in the legislative process on whether a proposed act might impact on a constitutional matter or infringe upon fundamental rights. While the reports of the Council are only advisory and not binding, they are usually accorded considerable weight by the government in their drafting of the final version of a government bill. The Council’s comments and recommendations on controversial suggestions are often also picked up by the media. The Council thus exercises real influence in the legislative process. Yet there has been a tendency to accord less weight to the Council’s recommendations when there is a strong political incentive to put certain legislation in place, regardless of its quality. This is what happened with the legislation on migration proposed by the government during and after the 2015 ‘refugee crisis’ (briefly outlined above). The Council on Legislation provided devastating criticisms of both the proposal for the 2015 ordinance on border control and identity checks, as well as the proposal for the 2016 Temporary Law and the 2019 proposal on prolongation. The Council was critical of the poor qualityFootnote 74 of the legislation, both as regards the legislative process and the legislation itself.Footnote 75 Regarding the 2015 ordinance, the Council in its comments said that the legislative process in this case did not live up to minimum standards due to the great haste which characterised it, the absence of an analysis of the constitutional implications of the proposals on border controls and the inadequate preparations of the proposal in general.Footnote 76 The critique did not, however, have much effect as the government presented a revised proposal to the Riksdag in mid-December 2015 that was then adopted just before Christmas 2015. The 2016 proposal on the Temporary Law received equally severe criticism: the Council emphasised that this proposal had also been hastily prepared, leading to unsatisfactory analysis of the proposal’s efficacy as well as its consequences.Footnote 77 The Council furthermore was critical of the material content of the law, questioning its compatibility with Sweden’s international obligations and Swedish legal tradition. However, in this case, the government went ahead with the proposal and drafted (with only minor revisions of the previous proposal) a bill which was presented to the Riksdag, in which a large majority in June 2016 voted in favour of the law. When the government proposed a prolongation of the 2016 law, the Council on Legislation for similar reasons was equally critical of the legislative process, albeit to no avail.Footnote 78 The conclusion to be drawn is that while the Council of Legislation usually functions as an obstacle for poor legislation, including such that has implications for the rights of individuals or groups or other constitutional matters, its advisory function means that the government can ignore its recommendations without doing anything formally wrong. It could be argued that this has a negative effect on the legal resilience of the system towards attacks on fundamental constitutional values.
The independence of the administration is another core value in the Swedish Constitution. The administrative bodies governed by the government are tasked with implementing and realising government policy. At the same time, they are independent in the sense that neither the government, the Riksdag, nor any other public authority ‘may determine how an administrative authority is to decide in a particular case involving the exercise of public authority vis-à-vis a private subject or a local authority, or the application of law’.Footnote 79 This independence, deeply rooted in Sweden’s constitutional and administrative law history, is also linked to a firm prohibition of government ministers making individual decisions in government affairs. This means that individual government ministers do not have a right of command over the administrative authorities and therefore cannot, for example, intervene in politically sensitive issues and/or individual cases, such as controversial cases of impediments to expulsion orders due to non-refoulement issues. The principle of the independence of the administration is closely linked to the ideal of the public servant as the guardian of democracy tasked with alerting their superiors (including politicians) when their actions are illegal, unethical or improper.Footnote 80 As a public servant, one is responsible for each decision one takes and one has the duty to decide in all matters indicated by the law in accordance with the law. Public servants in this sense are instrumental in the realisation of the rule of law. The independence of the administration and the role to be played by the civil servant contribute to legal resilience against political influence being exercised in concrete cases.Footnote 81
The transparency of the legislative process constitutes another key element or value in the Swedish Constitution. All government bills are subjected to a multi-step preparation process involving different parliamentary committees, government inquiries and a consultation process through which the necessary information and opinions shall be obtained from the public authorities concerned (and local authorities as necessary).Footnote 82 Organisations and individuals are also to have the opportunity to express an opinion as necessary. Following constitutional practice, consultation is considered mandatory in legislative matters.Footnote 83 The objective is for the legislative proposal to be as good as possible in order to avoid difficulties in implementation (for courts and other agencies), which could ultimately undermine the legitimacy of and trust in the system. The legislative process is subject to certain timeframes – the consultation process, for example, is generally to be allowed a minimum of three months – aimed at allocating sufficient time for preparation of draft legislation to ensure its quality. In addition, the timeframes are put in place for the protection of the minority in the Riksdag by allowing for deliberations to be held before the vote. These are thus measures introduced to put constraints on the will of the majority and its chances of ruling unchallenged. The system is accordingly construed in such a way that time in itself is a safeguard and a means to ensure legal resilience.
It should, however, be noted that the majority of the steps included in the legislative process are not explicitly stated in the Instrument of Government, but are instead ‘informal’, unwritten rules, developed through well-established practice. In the case of the 2015 border control and identity check regulation, these informal rules were upheld in name only. Consultations were indeed carried out, but public authorities and other actors were given no more than around forty-eight hours to analyse and respond to proposals that included serious rights limitations on the right to seek asylum and the right to movement and which would provide the government with far-reaching powers to close Sweden’s borders and effectively introduce a state of emergency.Footnote 84 This lack of respect for the consultation process was a key part of the Council of Legislation’s characterisation of the legislative process in this case as sub-standard (as described above). In the case of the 2016 Temporary Law, while the constitutional practice on timeframes for the consultation process indeed was followed not only in form but also in substance (albeit with a tight schedule), the impact of the comments on the final product, the government bill, were minimal, even though a majority of the consultation bodies had been very critical of the proposal, not least regarding rights limitations. The Council on Legislation again heavily criticised the government for the legislative process’s lack of quality. This critique was picked up by the media and prompted significant debate.
The weakness of informal rules on how the constitutional safeguards are to be applied is such that they can be more easily disregarded than rules explicitly included in the Constitution. This is what happened in Sweden when the legislation during and in the aftermath of the 2015 ‘refugee crisis’ was drafted. In these cases, the feeling of crisis and of urgency, promoted and pushed by politicians both within and outside of government, was allowed to trump the informal rules that are intended to provide context to and fill the written rules of the Constitution with meaning. While this erosion of essential elements is notFootnote 85 a phenomenon limited to migration, it has been particularly evident in this context.Footnote 86 In the current system, there is no real possibility to prevent poor legislation from being adopted, as long as there is a majority for it in the Riksdag. A Constitution that relies on all actors playing according to both formal and informal rules, and where respect for the democratic system is implicit rather than spelled out, becomes vulnerable in situations when the common understanding of ‘how things are done’ is put aside or ignored. This might occur when the government decides that a certain matter is of such urgency that immediate action is required, or when the country is in an exceptional situation. The 2015 ‘refugee crisis’ was such a situation.
Lastly, we turn to fundamental rights protection as a core value. Sweden is an interesting case as its Constitution on the one hand includes specific Acts protecting certain rights and freedoms, namely the Freedom of the Press ActFootnote 87 and its ‘sister act’, the Fundamental Law on Freedom of Expression, which together provide a constitutional structure exclusively applicable and construed to guarantee the highest possible degree of protection for transparency and free speech. On the other hand, it can be argued that protection of fundamental rights and freedoms has not been a core priority in the Constitution, whose ‘catalogue of rights’ (Chapter 2 of the Instrument of Government) is relatively limited (civil and political rights only), and was only introduced in 1980.Footnote 88 The reluctant approach to ‘rights talk’ must, like the approach to judicial review discussed above, be understood in the context of the emphasis on establishing a strong government and a welfare state. It is equality and inclusiveness, rather than fundamental rights protection, that characterised much of twentieth-century politics in Sweden, dominated for decades by the same party (the Social Democrats).Footnote 89 In addition, the school of Scandinavian Legal Realism and its insistence on the primacy of politics over law which constituted a dominant presence in Nordic legal and political discourse in the mid-twentieth century, has been held to be, as Strang puts it, ‘a major reason for the comparatively weak protection of minority, individual and human rights in the Nordic countries’.Footnote 90 The position of rights protection on the constitutional level in Sweden, however, was significantly strengthened with the incorporation into Swedish law of the European Convention on Human Rights in 1995 and the general Europeanisation of Swedish law due to joining the European Union in the same year, both of which have led to rights protection enjoying greater priority in courts as well as in policymaking than before. In this sense, fundamental rights as a core constitutional value have gained ground. This is visible also in the courts. In the context of migration, recent case law from the Migration Court of Appeal exhibits the resilience of the legal system against excessive limitations on migrants’ rights. In a 2018 case concerning the right to family reunification based on the 2016 Temporary Law, the Migration Court of Appeal found that refusing an eight-year-old boy with subsidiary protection status the right to reunite with his parents in Sweden would be contrary to Article 8 ECHR and the Convention on the Rights of the Child.Footnote 91 This judgment prompted the government, in the 2019 bill on prolonging the Temporary Law, to open up the possibilities for family reunification for the category of subsidiary protection.Footnote 92 In a 2020 judgmentFootnote 93 on the right to remain in Sweden on humanitarian grounds, the Migration Court of Appeal found that expelling a fourteen-year-old girl born in Sweden but who for long periods of her life had not had a residence permit would be contrary to Sweden’s obligations under Article 3 of the Convention on the Rights of the Child (the Convention was formally incorporated into Swedish law as of 1 January 2020). Both judgments are examples of when the rights of individual migrants are found to trump the interest of the state in limiting and controlling migration.
Finally, a few words should be said about how the Swedish Constitution, in particular the core values outlined above, functions in times of crisis, emergency or in other times of urgency. While there is a chapter on war and danger of war in the Instrument of Government (Chapter 15) and provisions on how constitutional power can be transferred from the Riksdag to the government,Footnote 94 the Constitution does not include any specific rules addressing crisis or other emergencies in peacetime. While there is a certain preparedness for such situations included in the legal system (including acts allowing the government to decide on a range of matters in urgent situations), the Constitution as such does not allow for general diversions from the division of powers, the legislative process, or how fundamental rights may be limited. Instead, situations of crisis are intended to be handled within the existing framework, including the unwritten rules established by constitutional practice referred to above.Footnote 95 This means that in a situation such as the 2015/2016 ‘refugee crisis’, or the (at the time of writing) ongoing coronavirus pandemic, there is no constitutional support for abandoning standard procedure. While the system indeed allows for some leeway, for example, as regards timeframes for the drafting of new legislation and the consultative process when new legislation urgently needs to be put in place, the fact remains that a crisis narrative (such as the one framing the large influx of refugees and migrants in 2015) cannot be used to legitimise serious derogations from core constitutional rules, values and practice.Footnote 96
In sum, then, we hold that the core values described here, taken together, form the legal resilience of the Swedish system. There are, as discussed above, weaknesses built into the system such as the relatively limited system of judicial review, the trust placed in adherence to informal rules, and the limited scope of fundamental rights included in the Constitution. At the same time, core values such as the independence of the administration and the transparency of the legislative process are powerful tools to prevent anti-democratic and anti-pluralist parties or politicians from pushing through their ideas. The Council on Legislation, while having an advisory function rather than that of a constitutional court, nevertheless plays an important role. It is suggested here that the inherent inertia of the administrative system and the legislative process is a key element of legal resilience against rights erosion, for migrants as well as for other vulnerable groups. The protection of fundamental rights as a core constitutional value and the increasing weight accorded to individual rights protection in the courts, including migrants’ rights, contribute to the legal resilience of the system against rights erosion. In addition, the fact that the Swedish Constitution does not allow for derogations from these standards and values except for in very specific situations – war or danger of war – further contributes to the stability of the system. Therefore, at least on the surface, constitutionalism seems to provide a basic protection against populism and acts as a guarantee for liberal pluralism in Sweden. That said, there remains a warning sign in the extent to which the right-wing populist narrative on migrants and migration, for so long advocated by the Sweden Democrats, appears to have taken root, and the effects that this might have on further rights limitations for migrants and indeed for other groups, such as minorities. The envelope indeed has been pushed on this point, and may be further so, particularly if mainstream political parties on the right continue to facilitate and normalise radical right-wing populist views and narratives, even adopting them as their own.
13.5 Conclusion
So, the question arises, what can be done? Can one limit the growth and influence of populism? Gustafsson suggests two ways in which this can be done (although how fruitful they might be is another matter). Firstly, one could change the rules relating to populist groups. This is, however, not the easiest thing to do. It is never easy to limit and prohibit authoritarian political parties and organisations – at least in a democracy. Prohibitions of political parties and organisations are difficult to introduce and to apply. This is even more difficult when talking about populist parties that have become important actors in elections and public debates.Footnote 97 This leads us to the second option: to limit the rights relating to freedom of expression, organisation, rule of law and legitimate opposition. By taking these measures, it would be more difficult for populist parties to gain and retain power. In the Swedish context, the Constitution includes a possibility to prohibit racist organisations.Footnote 98 Although this possibility has been investigated on several occasions in recent decades,Footnote 99 the prohibition has yet to be used. The tools inserted in a democratic constitution seem to be rather difficult to combine with upholding the constitutional framework, especially when the key values of transparency, free speech and political rights are intimately intertwined with the core principle of the ‘will of the people’. Unfortunately, seeking to prohibit populist and anti-democratic movements often ends up violating the very values and norms one seeks to protect. Perhaps instead, the answer is tolerance and to strive not to use the whole spectre of constitutional powers. In addition, the respect for and understanding of informal constitutional rules, individual rights, and the value of constitutional norms in practice as well as in theory should be strengthened.
Every country has its own constitutional experience. In Sweden, particular challenges for understanding the importance of protecting fundamental human rights and the value of a strong constitution might be posed by the fact that for centuries Sweden has not experienced emergencies such as wars and revolutions that could have forced us to make crucial decisions threatening different interests at the same time. Nor has Sweden been under authoritarian rule. When a country has not experienced a state of emergency, authoritarianism and limitations on fundamental civil and human rights, it might be more difficult to appreciate the importance of strong democratic safeguards of constitutional values such as the rule of law, transparency and protection of fundamental rights. By no means do we suggest that such negative experiences might act as a vaccine against authoritarianism or populism; this would be naïve given the numerous examples indicating the opposite. Rather, we suggest that the development in Swedish migration policy since 2015 towards restrictions of migrant’s rights, the willingness of mainstream political parties to adopt and act according to radical right-wing narratives on migrants and the lack of respect for various elements in the legislative process in the name of urgency may at least in part be a consequence of not having experienced what it means to live in a society where democracy and rights are limited, not for all, and in form more than content. Perhaps one should not lay the blame solely at the feet of the populists for the lack of a democratic compass in recent years but also look to those politicians and political parties that pave the way for them, transforming fundamentally extreme ideas into mainstream politics without admitting the risks this might entail for core democratic values. To argue that Sweden is in a situation of constitutional crisis and democratic decay as a result of the restrictions of migrants’ rights would, however, be going too far, given the absence of vital signs of democratic backsliding such as erosion of the judiciary’s independence, limitations on the freedom of the press and electoral manipulation. Instead, the changes in approach to migrants and migration should be understood as a development that may coincide with a broader pattern of challenges to core democratic values but which nevertheless is a separate phenomenon.
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