Henrik Wenander

The Constitutional Role of Public Administration in the Nordic Countries: Democracy, Rule of Law and Effectiveness under European Influence

The project looks into the constitutional role of public administration in the Nordic countries by using a comparative legal method. As stable democratic societies basing on the rule of law, the Nordic countries and their administrative structures have gained international interest. In a democracy based on the rule of law, administrative authorities such as tax authorities or municipal social boards should effectively carry out the political will of democratically elected politicians, but in a manner that safeguards individual rights and the rule of law. The requirements flowing from EU law on administrative procedure have meant further challenges in this respect. The different approaches to this balancing between the interests of democracy, rule of law and effective administrative decision making in the Nordic legal systems are central to the research project. The project is to be carried out by a legal scholar during 3 years. It explores the existing legal framework concerning the organisation of the authorities, the scope for steering administrative action and accountability. The existing Nordic public law systems as expressed in legislation, case law and scholarly debate will be analysed and systematized to identify the existing legal structures. By looking at the Nordic systems in parallel, the project will be able to identify common features as well as important differences. In this way, the project can provide new perspectives on societal matters of crucial importance.
Final report
Scientific Report, The Constitutional Role of Public Administration in the Nordic Countries: Democracy, Rule of Law and Effectiveness under European Influence, Grant number P18-0532:1

Purpose of the project and how it has developed during the project period

The aim of the project has been to deepen the understanding of the constitutional role of public administration in the Nordic states, this against the backdrop of the balancing of interests between democratic governance, the rule of law, and effective public administration. This aim has remained unchanged during the whole project. The developments during the COVID-19 pandemic have shown that there is a great societal interest in researching this constitutional role of public administration from a Nordic perspective, also relating to cross-border aspects of administrative cooperation. Therefore, the research in the project has explored problems highlighted during the pandemic, especially concerning the scope for administrative authorities to adopt non-binding rules in the form of general recommendations and similar. An important part of the project has further been to highlight how the legal framework within the EU, the European Convention on Human Rights, and other forms of European legal cooperation influence the constitutional role of public administration in the Nordic states.

A short description of how it was implemented

The project has been implemented by a sole researcher, Henrik Wenander, who, however, has been in close contact with other Nordic researchers in Public Law. As was envisaged in the original research plan, the focus of the project has been on a legal comparison in the constitutional and administrative systems in the five Nordic states. The project has shown that this kind of intra-Nordic comparison can be valuable for identifying fundamental structures in the administrative organisation of the states that are not obvious if the national systems are studies separately. The Nordic comparison shows, that what is evident in one system – for example, the idea of the so-called prohibition of ministerial rule in Sweden – may have dimensions that are not given enough attention in strictly national legal discourse. The very similar Nordic societies have in this way offered great possibilities of identifying fundamental structures in the different legal systems.

Although the project has aimed at discussing the Nordic states, all publications have not covered all five legal systems. Depending of the topic of the article or chapter, the selection has had to be adapted. In most of the publications, all the Nordic legal systems are treated. The article on the impact of the EU law proportionality principle on administrative law only discusses the Nordic EU States of Denmark, Finland, and Sweden, since Iceland and Norway are not EU Member States, but only participate in the less far-reaching EEA cooperation. Two articles, furthermore, focus on Sweden, given that Sweden in the studied fields deviate from the other Nordic states (which is highlighted in these publications). Finally, two contributions highlight the legal role of Nordic administrative cooperation in relation to the Nordic Council of Ministers.

As to the practical implementation of the project, the original idea was to visit law faculties and similar in the other Nordic states to collect materials and discuss the research topics with Nordic colleagues. This plan could only be carried out to a limited extent because of the pandemic.

The Nordic experiences in the field studied often have been overlooked in European and international discourse on the topics studied in the project. Therefore, the ambition has been to make Nordic public law visible through publishing most contributions in the project in English (see further below on publication strategies).

The project’s three most important results and a discussion about the conclusions

The most important results of the project are listed below. They indicate, as has commonly been assumed in comparative legal theory, that the understanding of legal institutions and structures is dependent on the historical and political development.

I. The project has confirmed the previously established view that there is a fundamental difference between East Nordic (Finland and Sweden) and West Nordic (Denmark, Iceland, and Norway) public law systems. In spite of this, the results of the project indicate that the Nordic systems have enough similarities to make it meaningful to discuss a ‘Nordic Administrative Law’. This concept includes a common understanding of problems and solutions, where legal comparison may be useful for understanding the basic structures. This conclusion contradicts the idea discussed in scholarship, that there is no such concept. However, the analysis needs to go beyond the superficial legal constructs and look into the legal function of the established systems. This was clear in both the study of administrative organs linked to the parliaments and in the article on EU law requirements on independent administrative bodies.

II. In spite of certain similarities with Finnish law, the Swedish public law system is in several ways the odd one out in the Nordic context (and even more so in a European setting). This is clear from the constitutionally protected independent decision-making in administrative authorities, the far reaching competence for administrative authorities to adopt binding legal rules, and the comparatively wide use of administrative authorities under the parliament.

III. European Law (EU Law and the ECHR) have influenced the position of Nordic public administration in several ways. This, however, has for the most part not taken place through entirely new legal concepts and ways of thinking, but by adaptation of previously existing legal concepts. Examples studied include the proportionality principle and requirements of independent administrative authorities. The European influence may therefore be seen as evolutionary rather than revolutionary.

Generally speaking, the Nordic public law systems express what legal scholarship previously has described as ’Nordic pragmatism’. This elusive concept may be understood in relation to the Continental European strict understanding of legal structures, comprising far-reaching theoretical categorisations and system constructs on the relations between legal rules and principles. The Nordic legal systems, contrastingly, leave a greater room for adaptations to the needs of the concrete situation. This is in part linked to the Nordic well-established trust in democratically elected politicians. The project has illustrated this pragmatic attitude regarding the reactions to the proportionality principle emanating from EU law, where administrative authorities and courts now need to balance societal interests in a more explicit and legally structured way.

New research questions generated through the project
One of the research questions of the project has related to liability for administrative authorities and civil servants. This topic has been discussed in the publications on administrative authorities under the parliaments, the role of Nordic public bodies in international cooperation, and non-binding rules by administrative bodies. These studies have generated new research questions on the interplay between criminal law, labour law, and administrative law. Further new research questions include the impact of automatized decision-making and the use of AI in Nordic public administration. Nordic comparisons of the same kind as in this project may be fruitful in all the mentioned fields.

Dissemination of the Research and its Results; and International Collaboration Contacts

The project has aimed at disseminating research on Nordic legal thinking and experiences to an international academic audience. The article on the proportionality principle has been presented in an international conference in Leiden, and the chapter on Nordic administrative bodies in international cooperation has been discussed at an international workshop in Stockholm. The chapter on administrative authorities under the parliaments has been presented at a seminar in Vaasa, Finland, arranged by the Finnish Section of Nordic Administrative Federation. Furthermore, the project and its results has been presented at research seminars in Örebro, Oslo, Stockholm, Umeå, Uppsala, and Vienna. These seminars (in many cases on-line) have provided important insights to the project.

Given the character of the research results, they have been published in the form of articles and book chapters instead of a monograph, as was originally contemplated. For the most part, they have been published in international and highly ranked journals or by the renowned publishing house Hart. Considering the Nordic focus, one article has been published in the Nordic Journal of European Law. All journal articles have been peer reviewed and published with open access. One book chapter has been published in Swedish in an anthology published by the Finnish Section of the Nordic Administrative Union in order to make the research visible also to the Nordic public law research community, which still largely communicates in the Scandinavian languages.

Apart from research publications, results from the project have been disseminated to the public and political decision-makers. The article on the proportionality principle has been summarised in a popular science blog post. The project leader further contributed with information to a report from the Finnish Prime Minister’s Office. Results from the project also formed a basis for a presentation in the Committee on the Constitution of the Swedish Parliament in February 2022 on the Swedish administrative model in Nordic comparison, especially relating to the COVID-19 pandemic.
Grant administrator
Lunds universitet
Reference number
P18-0532:1
Amount
SEK 1,883,000.00
Funding
RJ Projects
Subject
Law (excluding Law and Society)
Year
2018