Council on Legislation criticism
In March 2016 the Cross-party Committee on Environmental Objectives presented its final report, "A climate policy framework for Sweden" (SOU 2016:21). The Climate Policy Framework is a result of a cross-party political agreement that will supposedly make the climate a top issue in all policy work. The report resulted in a draft bill which was circulated for consideration. The Council on Legislation presented its views on the new Climate Act in February 2017.
The Climate Policy Framework consists of three parts:
- a long-term climate goal, aiming for Sweden to have no greenhouse gas net emissions by 2045;
- a Climate Act; and
- a Climate Policy Council tasked with examining the implemented policy on an ongoing basis.
The Climate Act is intended to increase transparency in climate policy work and provide clear guidelines for the government on how the climate work is to be conducted. Other countries, such as the United Kingdom, Finland, Denmark and Germany, have already implemented different climate acts with similar content to the proposed Swedish Climate Act.
The aim of the Climate Act is for Parliament to oblige the government to pursue a climate policy with a specified orientation. The government will conduct climate policy work with the intention of preventing dangerous interference with the climate system. The climate policy efforts will help to protect ecosystems and present and future generations from the harmful effects of climate change. Efforts must focus on reducing emissions of carbon dioxide and other greenhouse gases and to maintain and create features in the environment that counteract climate change and its adverse effects. The work should have a scientific basis on relevant technical, social, economic and environmental considerations. The government's climate policy efforts will be based on the long-term, time-bound emission targets set by Parliament and it must declare other emission reduction targets necessary to achieve the long-term objective.
The government must provide an annual report to Parliament that will include:
- a statement of emission performance during the year;
- key decisions on climate policy and what the decisions mean for the development of greenhouse gas emissions; and
- an assessment of whether there is a need for additional measures.
Every four years the government must develop a climate policy action plan to be submitted to Parliament. The plan will describe the measures to be taken during the term of office, as well as in the longer term, to achieve climate goals. It will also include the measures that the government plans to implement during the same period. The aim is to create conditions for continuous and proactive climate efforts.
Council on Legislation criticism
The Council on Legislation has heavily criticised the draft bill and recommended its rejection. The council pointed out that it has not been explained how the act is legally binding and why it should be regulated by law. According to the act, there are no penalties or other legal effects if the government fails to fulfil its obligations. Any legal liability in a strict sense therefore seems to be unintended.
The intention is to examine the government's actions in political proceedings. Such proceedings already occur in all policy areas and an act is not needed for that purpose. Further, an act without penalties or other legal effects is not binding in a manner different to any other political agreement. The Climate Act's provisions are general in nature and the government's obligations are not described. The council has said that it is easy to imagine situations where opinions are divided on whether the government has fulfilled its obligations under the law, and there is no legal system for settling such a dispute.
The council pointed out that it is not given that a statutory regulation of this kind would increase the chances that climate policy work can be conducted in a sustainable and continuous manner. A new parliamentary majority could change the law or abolish it.
As grounds for a legal regulation, it has been stated that the draft bill increases transparency (ie, that citizens are informed of government activities on climate matters, and that it sends signals to the outside world). However, the council has questioned whether it produces any significant effects. In each case, it is not an independent reason for regulation by law. There are better ways to inform the public.
Advocates for the proposed bill argue that the council has missed the point of the Climate Act. The act ensures a long-term perspective in climate work and that regulation by law increases transparency for Swedish participants in relation to national climate policy, which is in itself an important part of achieving the act's purpose.
The government has announced that it will present the bill in Parliament despite of the council's recommendation of rejection.
The apparent political consensus is that Sweden needs a climate policy framework and that climate efforts should be included in all policy areas. It is not clear how the Climate Act will fulfil this objective and why the government's reporting duties must be regulated by law. The proposal contains no penalties or other legal effects and does not clarify in detail what the government's climate efforts should consist of. It is also unclear what would happen if the government fulfils its reporting duties but this does not result in any positive reforms for the climate. It is theoretically possible that the government could report on planned reforms, but that none of them will be implemented. This would still conform with the law in its current form.
The long-term environmental objective is not included in the act and there are no strategies on how the goal should be achieved. As the Council on Legislation has explained, political differences may occur and divided opinions on whether the government's actions are in accordance with the act may arise with no prescribed legal proceedings for settling the dispute. The council's argument that a parliamentary majority can change or abolish the Climate Act is, however, incomprehensible, since this is true for all acts decided by Parliament.
It is therefore questionable whether the Climate Act will have the pioneering effect that the government expects. The act contains only a political agreement and a description of how the government must act. It remains to be seen whether the proposal will have the intended effects and help Sweden to achieve its ambitious climate goals, or if the council was right to criticise the draft bill.
For further information on this topic please contact Matilda Hellström at Advokatfirman Lindahl KB by telephone (+46 40 664 66 50) or email ([email protected]). The Advokatfirman Lindahl KB website can be accessed at www.lindahl.se.