Developments in Norwegian Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Norwegian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.

---

–Anine Kierulf, Postdoctoral Researcher, University of Oslo School of Law

I. Introduction

Developments in Norwegian constitutional law 2016 were marked by courts’ adjustments to a major constitutional reform of 2014. In it, the 1814 Norwegian Constitution was amended with a bill of rights, thus constitutionalizing international human rights that had until then been incorporated by ordinary legislation. Questions of rights dominated constitutional adjudication. The political debate saw some discussion of two separation of power issues: one, the preparations towards the separation between church and state, a constitutional alteration of 2012 effectuated from January 1, 2017;[1] the other questions of parliamentary competence to instruct the government in concrete cases in connection with a government decision to reduce quotas in the licensed hunt of wolves.[2]

Norway is a monarchy functioning as a constitutional democracy. It was established as a state independent from Denmark in 1814, enacted its Constitution, and was then unionized by Sweden until 1905. In the 1800s, the Norwegian Constitution was considered positive law and played a significant role in adjudication, both due to the lack of statutes in the new country and to its symbolic value as a Norwegian base of law. Less used in legal adjudication through the 1900s, it has remained a central political and legal document.

While not a party to the EU,[3] EU legal influence is significant due to the Norwegian membership in the European Economic Area (EEA), which grants access to the internal market on the condition that Norway implements relevant EU legislation.[4] The core international Human Rights conventions, and the European Convention of Human Rights (ECHR) are incorporated into Norwegian law through the Human Rights Act of 1999 (HRA), and influences Norwegian law in a constitution-like way as the provisions of these instruments take precedence before conflicting Norwegian law.[5]

In politics, 2016 was Prime Minister Erna Solberg’s (Conservative) third of her four-year-term coalition government. The minority right-of-centre government, comprising the Conservatives and the right wing Progress Party (FrP), is reliant on parliamentary support from two centrist parties, the Liberal Left and the Christian Democrats. Areas of political disagreement within this group of parties have been environmental policies and stricter immigration and asylum regulations.

The Norwegian economy was influenced by the decrease in oil prices in 2015 and parts of 2016. Norges Bank (the central bank) has left its main policy interest rate on hold at a record-low 0.5% since March 2016. Real estate prices are still rising, particularly in the capital, Oslo, and other larger cities. The unemployment rate continued to rise in 2016, but is still low compared to other European countries, at 4.5%.

Among social developments, questions of immigration and asylum following the refugee crisis of 2015 are still high on the public and political agenda, as is the fear of increasing terror in Europe. Areas of particular concern are how to ensure the protection and care for unaccompanied minor asylum-seekers, and how proposed expansions of police and security forces’ investigative and preventive measures balance the public need for security against the right to privacy and freedom of expression.

II. The Constitution and the Court  

Outside the United States’ 1789 Constitution, Norway’s from 1814 is the oldest still in force. Enfranchising a comparatively substantial part of the population, it also contains central constitutional principles such as the division of powers, and rights, such as the protection of free speech and property, a ban against retroactive legislation and unwarranted searches. While having been changed more than 300 times since, the Constitution has proven particularly durable.^[6]

Judicial review was developed early after the constitutional enactment, and practiced throughout the 1800s. It was explicitly ascertained by the Supreme Court in 1866. The Norwegian form of review resembles U.S. review in time of origin and way of development.^[7] It is concrete, ex post and “strong form”,^[8] yet has historically been practiced quite deferentially, but with a certain increase following 2000. The customary law of review was written into the Constitution § 89 in 2015.[9]

With a few exceptions, Norwegian courts have general jurisdiction and preside over criminal and civil cases, as well as administrative and constitutional ones. Courts are organized in three levels: 64 district courts, six general courts of appeal and one Supreme Court. In principle, all legal disputes may be brought before the Supreme Court, but subject to approval from the three-member Supreme Court board of appeals. Approval is granted to appeals of significance to cases outside the case in question, or that otherwise a rise questions of particular importance. The Supreme Court is a court of precedence, and its principal goal is to contribute to clarity and development of the law within the Norwegian constitutional and legal framework. In ordinary cases, the Court sits in panels of five, in cases of extraordinary importance or those potentially reversing constitutional precedence, in Grand Chamber of 11 justices or with all 20 justices in plenary.

Norwegian Supreme Court Justices are appointed for life, i.e. until mandatory retirement at 70. Under the Constitution, both judges and Supreme Court Justices are appointed by the government. By statute, such appointments take place following the recommendation of an independent advisory board.[10] In the absence of parliamentary hearings, judicial appointments have drawn little public attention, and have traditionally been un-politicized. Rules for appointing Chief Justices are less clear. In 2016, the first female Chief Justice, Toril Marie Øie, was appointed to the Supreme Court. She had been on the Court since 2004 and had previous experience from the Ministry of Justice Legal Department. While Øie is generally recognized as a sound choice for the position, the process leading up to her appointment drew some criticism for lack of transparency.[11]

The principle of oral contradiction is central to Norwegian adjudication. The Supreme Court annually decides between 110 and 130 cases following oral hearings. The remainder of the 2000+ annual full or limited appeals is decided following written proceedings – around 500 with reasoned premises, the rest following a simplified procedure. In 2016, the Supreme Court received 2,331 appeals. 829 of these were appeals against judgments, the rest were against orders or decisions.[12] In the last 15 years, the number of dissenting judgments has varied between 16-26%. In 2016, the number was 16%, significantly down from the 24% in 2015.

III. Constitutional Controversies  

For long historical periods, constitutional adjudication has been a rather peripheral part of Norwegian law and political life. Constitutional law is generally under-theorized, and marked by much the same legal pragmatism seen as a central tenet of Scandinavian law.[13] In the last 10-20 years, however, constitutional debates particularly over questions of rights have gradually picked up following three different, but interconnected phenomena:

First, an increasing judicialization of politics: politically initiated as answers to ever more complex societal challenges, this shifts areas formerly subject to political deliberation via legal regulations to judicial adjudication. Increasing caseloads have led to reforms aiming to have the Supreme Court concentrate on the more principled cases and precedence-making. Judicialization increases the potential decision-making power of the judicial branch.

Second, an increasing globalization, particularly the influence of European law, contributing further to the complexity of societal regulation and posing new challenges to previously nation-focused legal systems. Formally, neither EU law nor international Human Rights law—with ECHR law as the most influential by far—is “constitutional”—both sets of law are incorporated into the dualistic Norwegian legal system through ordinary laws, and can be politically repealed by ordinary laws.[14] In practice, however, both sets of rules function constitutionally: first, in that they limit the practical legal scope for political action through confines that are hard to alter in the reigning political climate, and second that by their incorporative acts they are given precedence before Norwegian rules in cases of conflict, placing them in a semi-constitutional position. In addition to the basic EU principles, more than 170 statutes and 1000 administrative regulations have been incorporated in Norway in the period 1992-2011.^[15] The EU Court is influential for the understanding of EU law, but the substantial part of EU law enters Norway through legislative acts based on directives or other EU legal acts. While human rights law was also incorporated by Parliament through the Human Rights Act (1999), the effectuation of it is primarily done through cases brought before the courts, thus enhancing the focus on how another branch than the political is arbiter of the scope of political action.

A third development is a gradually renewed judicial focus on constitutional rights-thinking in the last decade. Up until 2014, this may have been inspired by the international influence on legal thinking and adjudication – the combined rights focus and state-citizen conflict dynamics of EU and ECHR law resembles constitutional adjudication more than ordinary legislative adjudication. With the 2014 Constitutional reform,[16] central human rights until then “only” protected by conventions and incorporated through the HRA were amended to the Constitution as part of the celebration of the Constitution’s 200-year anniversary.[17] This led to a substantial rise in the use of constitutional provisions in Supreme Court reasoning in 2016.[18] The average number of cases referring to the Constitution was 0.6% of the total annual case load in the years 1990-1999, and 1.2% in 2000-2009. In 2010-2016, the average was 2.1%, with the years 2015 and 2016 as top years, at 3.6% and 5.2%, respectively.

It is important to note that even with this marked increase in use of the Constitution, cases disregarding or substantially reinterpreting legislative acts have remained stable. The average number of such cases in the year 2000-2017 is one to two per year,[19] and the years 2015 and 2016 follow this average.

Two amendments were made to the Constitution in 2016: in March, § 49 of the Constitution was altered in order to constitutionalize the principle of local self-government.[20]  Norway has a long history as a decentralized country where local communes have substantial self-government, but this has not been reflected in the Constitution. The alteration concluded a series of debates following Norway’s ratification of the Council of Europe Charter on Local Self-Government in 1989,[21] which article 2 provides that “The principle of local self-government shall be recognized in domestic legislation and, where practicable, in the constitution”. In May, the Norwegian Central Bank, “Norges Bank” (1816), was written into the Constitution in § 33, which now reads: “Norges Bank is the Norwegian Central Bank”.[22]

In the 2015-2016 parliamentary period, 44 proposals to amend the Constitution were put forth. Of these, 21 concerned modification, re-proposals or linguistic questions arising from the 2014 constitutional reform. Two of them concerned issues of substantial debate in the 2014 reform: one proposal to constitutionalize requirements for interfering into the constitutionalized rights and one the details of judicial review doctrine.[23]

IV. Major Cases

Right of boycott vs. right of establishment HR-2016-2554-P

The only Supreme Court plenary case in 2016 concerned the Norwegian Transport Workers Union aiming to boycott the Danish-owned company Holship Norge AS to prevent Holship from using its own stevedores to load ships in a Norwegian Port. The Union wanted to force Holship into signing a Norwegian collective agreement assuring registered stevedores preferential rights. The Supreme Court concluded on dissent (10-7) that the boycott ran counter to the right of establishment under the EEA Agreement Article 31. The majority held that the primary object of the boycott was to prevent Holship from establishing itself in the loading and unloading business at the Port of Drammen. In balancing the right to boycott under the Norwegian Boycott Act, as seen in light of the un-incorporated rights following from the ILO-Convention nos. 87, 98 and 137 and the revised European Social Charter,[24] and the EEA right to establishment, the latter prevailed. The majority emphasized an interpretation obtained from the European Free Trade Association (EFTA) Court on the matter.

The case merits interest also for answering a constitutional question of some controversy, and for solidifying the judicial view of another:

First, in the 2014 constitutional reform, the formulation of a new article 92 created uncertainty about whether all human rights treaties ratified by Norway were to be protected in the same way that the human rights constitutionalized in the reform—or whether the rights not constitutionalized remained of the same hierarchical (non-constitutional) status as before. On this question, the Court en banc held the latter, with the effect that the un-incorporated ILO Conventions were seen as less weighty in the balancing process against the EEA right of establishment.

Second, it confirmed the judicial answer to the fact that Parliament, when constitutionalizing human rights in 2014, voted against constitutionalization of a proposed article setting out the criteria for interfering into the rights amended—that they be prescribed by law, be proportionate and necessary.[25] The rights amended are formulated briefly, in line with Norwegian constitutional tradition. But that also means they are textually “absolutes”, an implication the un-amended provision was meant to resolve. Considering the rights absolute was no viable option for the Supreme Court, which instead in several cases has chosen to interpret them in light of their international counterparts,[26] thus in reality adjudicating according to the un-amended provision. This line of interpretation—the doctrine that the constitutional rights provisions are to be interpreted in light of their international counterparts—was followed by all justices in this plenary decision.

Right of property – ground lease regulations HR-2016-304-S, HR-2016-2195-S

A particular Norwegian ground lease arrangement has created a number of controversies in the last 15 years – politically, in Norwegian courts, and also in the ECtHR.[27] In the post-WWII era, limited resources made ground lease arrangements attractive. Property owners could expediently obtain a steady income from their land without making investments or selling it, and non-property owners could lease land at affordable prices. There exist some 350.000 ground lease contracts, the majority of which are for private homes.[28] Prior to 1976, such agreements were governed by contracts, often concluded for a period of 99 years and with clauses giving the lessee a right to extension upon expiry. A new Ground Lease Act granted all lessees the right to claim extension of their lease on the same conditions as previously and without limitation in time. With real estate prices soaring in the 1980s, a number of lessors used the opportunity under the law to demand redemption, which resulted in many lessees being put in a difficult financial position. Because of the dramatic increase in pressure on real estate prices, the legislator thought it necessary to intervene to protect the lessees’ interests. The level of possible rent increases was regulated so that they could only reflect general inflation, not the rising cost of land, and by allowing the lessee a right to extension upon expiry under un-altered conditions.[29] The Supreme Court in Plenary upheld this right of extension in a decision from 2007[30] while the ECtHR in Lindheim v. Norway found it to interfere unduly with the right of property under Protocol 1, no. 1 in 2012.[31] Parliament altered the Act in 2015.[32]

Two Grand Chamber cases concerning ground lease were decided in 2016. HR-2016-304-S, dealing with a concrete estimation of redemption price, merits interest because of the way its reasoning differs from that of the 2007 Supreme Court decision: where the ECtHR found the reasoning in the 2007 case to fall short of demonstrating that the Supreme Court had properly understood and balanced the conflicting interest in consistence with ECtHR case law criteria, this 2016 case is reasoned in a way both properly discussing the redemption regulation under ECtHR criteria and explaining how Parliament has reasoned before striking the balance as regulated.

HR-2016-2195-S was based on a claim that a 2006 case solved by reference to the old Act merited compensation from the state as it was based on grounds incompatible with the ECHR protection of property, as shown by the 2012 Lindheim case. The Grand Chamber held (8-3) that § 200 of the Courts Act (1915) made the case un-actionable, as it in reality represented a replay of the 2006 case in which the claim of ECHR incompatibility could have been raised, but was not. The minority held the claim actionable as grounded on the state’s liability as legislator.

Retroactive legislation, property rights: Parliamentary pensions HR-2016-00389-A

A retired MP, Carl I. Hagen (FrP) argued that amendments to a statute regulating parliamentary pensions were in violation of the prohibition against retroactive laws in the Constitution § 97. The amendment did retroactively affect Hagen’s pension, a protected property right under the Constitution § 105 and ECHR Protocol 1, art. 1. Under § 97 precedent, it only bars retroactive legislation interfering in legitimate expectations and of a certain magnitude. The Supreme Court did not find these thresholds met by the disputed amendment. It emphasized that the amendment did not involve a particularly extensive interference into Hagen’s protected property rights, and that he in any case did not have a legitimate expectation that this right in the form of the pension in question would remain unchanged. Social considerations such as economic sustainability, equality and a fair distribution between the generations were emphasized in the Court’s overall assessment.

Sami rights HR-2016-2030-A

A group of Sami reindeer herders had used Stjernøya Island in Finnmark as a summer grazing area for a number of years, and claimed this made them the rightful owners of parts of the island with reference i.a. to ILO Convention no. 169.[33] The Supreme Court concluded that the ILO Convention did not provide for such rights, but that principles of property law should be interpreted in light of Sami conditions. The reindeer herders had not been the original owners of the island, and thus had not established ownership by principles of occupation of ownerless land. The state had exercised right of ownership to Stjernøya since the 18th century and the locals had used the island’s outfield land resources. The Sami reindeer herders’ use had also not been sufficiently intensive and dominating to be able to establish right of ownership on the basis of immemorial usage.

Right of privacy, principle of legality HR-2016-1833-A

The police confiscated a cellphone believed to have been used to film an assault. The defendant refused to cooperate with the police by unlocking the phone with his fingerprint. While the Criminal Procedure Act § 157 gives the police grounds for “bodily searches”, including taking blood samples, the Supreme Court did not find the forced use of someone’s finger to be covered by that provision. A textual interpretation suggested the provision was meant to enable finding of evidence on or within the body of a suspect, not the use of a body part to access evidence outside of the body. The Constitution § 113 principle of legality was thus not satisfied, and there was no other legal basis to interfere into the private sphere of the suspect as protected by the Constitution § 102.

V. Conclusion

A central reflection upon 2016 is that of a political and legal community, courts in the forefront, endeavoring to cope with the implications of the 2014 constitutional reform. While aiming “only” to constitutionalize rights already well established in Norwegian law, its revitalization of constitutional thinking in a country traditionally satisfied with a rather pragmatic approach to the Constitution presents a number of legal methodological challenges—and opportunities. These are likely to continue, both in court practice and possibly also in debates over some of the proposed constitutional amendments in the coming 2017 parliamentary election.

---

[1] Parliamentary enactment of May 21, 2012.

[2] Following the Constitution § 75 a) and d), Parliament regulates the Government through legislation and budgetary dispositions. Legal foundations for instructing the Government in concrete cases are less clear, but the tendency of Parliament to “invite” the Government to (re)consider concrete cases has been rising since 2000, with a particular surge in 2015-2016, see Meld. St. 17 (2016–2017), https://www.regjeringen.no/no/dokumenter/meld.-st.-17-20162017/id2538216/sec1 (retrieved April 5, 2017).

[3] Two referenda, in 1972 and 1994, voted “no” to the EU by slim majorities (53.5% and 52.2%).

[4] The EEA agreement was incorporated into Norwegian law by Lov av 27. november 1992 nr. 109. By its § 2 EU-legislation has prevalence before Norwegian law in cases of conflict. About 70% of EU directives are also relevant to Norway under the EEA, see NOU 2012:2, 25.3.3 In addition to the influence of the directives and other EU regulations come the decisions of the EU and EFTA courts. See http://www.europautredningen.no/wp-content/uploads/2011/12/NOU201220120002000EN_PDFS.pdf (retrieved March 15, 2017).

[5] Th Human Rights Act 1999 (lov av 21. mai 1999 nr 30) § 3.The other conventions are the International Covenant on Civil and Political Rights – and on Economic, Social and Cultural Rights (both 1966), the International Convention on the Elimination of All Forms of Racial Discrimination (1965), Convention on the Elimination of All Forms of Discrimination against Women (1979) and Convention on the Rights of the Child (1989).

[6] See Ginsburg, T. and Melton, J., Norway’s Enduring Constitution: Implications for Countries in Transition, available at http://www.constitutionnet.org/files/norways_enduring_constitution.pdf (retrieved March 15, 2017).

[7] Holmøyvik, E., Årsaker til utviklinga av prøvingsretten i Noreg og Danmark Tidsskrift for rettsvitenskap, 718-779 (2007).

[8] Tushnet, M., Alternative forms of judicial review, 101 Michigan Law Review 2781 (2003).

[9] Parliamentary enactment June 1, 2015.

[10] The Court Act (1915) § 55 a.

[11] See Kierulf, A., Norway: New Chief Justice Appointed to the Supreme Court, Int’l J. Const. L. Blog, Mar. 1, 2016, at: http://www.iconnectblog.com/2016/02/norway-new-chief-justice (retrieved March 21 2017).

[12] See Supreme Court Annual Report 2016, available at http://www.domstol.no/globalassets/upload/hret/arsmelding/supremecourtofnorway2016.pdf (retrieved March 21 2017).

[13] See i.a. Husa, J., Nuotio, K. & Pihlajamäki, H. (eds.), Nordic Law – Between Tradition and Dynamism, (Intersentia 2008), pp. 55-64; Schlesinger, R., Baade, H., Herzog, P. & Wise, E., Comparative Law, 6th ed., New York (Foundation Press, 1998).

[14] See note 5 and 6.

[15] NOU 2012:2, 7.1.

[16] See Bårdsen, A., Guardians of Human Rights in Norway: Challenging mandates in a new era. Speech given in Litteraturhuset, Bergen, May 11 2016, available at  http://www.domstol.no/globalassets/upload/hret/artikler-og-foredrag/guardians-of-human-rights—11052016.pdf (retrieved April 5, 2017).

[17] Added to the prohibition against prosecutor’s inhumane treatment (§ 96), the anti-retroactivity ban (§ 97), freedom of expression (§ 100) and the takings clause (§ 105) were: the right to free and secret elections (§ 49), the right to life (§ 93), protection of liberty (§ 94), the right to a fair trial (§ 95), the presumption of innocence (§ 96, 2), equality before the law (§ 98), freedom of assembly (§ 101), the right to privacy (§ 102), the rights of the child (§ 104), freedom of movement (§ 106) and the principle of legality (§ 113). Some socio-economic rights were subject to substantial debate in Parliament. Amended to the Constitution were the right to education (§ 109), the right to work (§ 110), the right to a healthy environment (§ 112) and the rights of the Sami people (§ 108), whereas the right to participate in cultural activities (§ 107) and to health (§ 111) were not.

[18] Search in database “Lovdata”, Supreme Court civil and criminal cases, reasoned decisions from chamber and appeals committee for all years, and “grunnlov*” in the free term search. “Substantial reinterpretation” refers to cases where the influence of a constitutional provision visibly leads the Court to interpret a statute differently.

[19] Peaking in 2010, with four cases.

[20] Parliamentary enactment of March 31, 2016.

[21] ETS No.122.

[22] Parliamentary enactment of May 24, 2016.

[23] Dok 12:8 and 12:19 (2015-2016).

[24] Convention concerning Freedom of Association and Protection of the Right to Organise (Entry into force: 04 Jul 1950), Convention concerning the Application of the Principles of the Right to Organise and to Bargain Collectively (Entry into force July 18, 1951), Convention concerning the Social Repercussions of New Methods of Cargo Handling in Docks (Entry into force July24, 1975), ETS No.163.

[25] Innst. 187 S (2013–2014), 2.10. An amendment to the same effect was re-proposed in September 2016, Dok. 12:8 (2015–2016).

[26] See HR-2014-2288-A, HR-2015-206-A, R-2015-289-A.

[27] Case of Lindheim and others v. Norway, 13221/08.

[28] Proposal No. 41 to the Odelsting (2003-2004), p. 11.

[29] The Ground Lease Act (1996) § 33.

[30] HR-2007-1594-P.

[31] Case of Lindheim and others v. Norway, 13221/08.

[32] Act 2015-06-19-63.

[33] Convention concerning Indigenous and Tribal Peoples in Independent Countries (Entry into force: 5 Sep 1991).