Kommunalt självstyre och rättighetslagstiftning

Om fördelningen av makt och ansvar mellan stat och kommun

Abstract

Local self-government and rights legislation: On the division of power and responsibility between national and local governments

This article investigates the tension between the ideal of national equality in welfare policy and the principle of local self-government emphasized in the Swedish Instrument of Government (Regeringsformen). We do this by analyzing the rights legislation – an overlooked instrument through which the national government can influence the actions of the local governments in welfare matters. The aim is to shed light on how administrative judicial review of local government decisions concerning individuals’ right to welfare works in practice and to discuss the implications this has for local self-government. To achieve the aim, we set out to answer two research questions: (i) Do the administrative courts’ decisions concerning individuals’ right to elderly care limit the discretion of local governments, and if so, within which aspects? (ii) Is the discretion of local governments limited to the same extent by all administrative courts, or are there regional variations in this regard? By developing a theoretical framework, we show that three aspects of the court’s powers are particularly decisive for the municipalities’ discretion: the grounds or scope of court review, the policy content of the court review, and the type of remedies or judgment. The empirical results show that Swedish administrative courts overturn municipal decisions to a comparatively low degree (23%), which indicates that judicial review of welfare rights does not necessarily challenge the discretion of local governments. However, when the administrative courts actually overturn decisions, they use their formal powers to limit the local governments’ discretion to a great extent, both in terms of the content of eldercare services provided and resource allocation. The results also show variation in approval rates between the Swedish administrative courts. This finding indicates that the administrative judicial review of the Social Services Act’s rights clause affects the discretion of some local governments more than others.