Stockholm, Sweden.

Sweden’s Response to COVID-19: A Tale of Trust, Recommendations, and Odorous Nudges

By Behrang Kianzad and Timo Minssen

Introduction

The Swedish response to the Corona-crisis has been relatively moderate compared to most other countries.

Sweden did not opt for a total lockdown, did not close elementary schools, day cares, bars, restaurants, movie theaters, and other places of business. Public gatherings of up to 50 people are still allowed until further notice. Sweden’s intra EU borders remain open — in contrast to its neighbors Denmark, Finland and Norway — although the government has extended the  temporary entry ban to the EU via Sweden through May 15th.

Yet, in line with several EU initiatives and other countries, Sweden also adopted financial aid packages to mitigate the economic impact on people and companies.

Moreover, the Swedish government implemented a range of additional measures to: (1) reduce and slow down the spread of COVID-19; (2) ensure that sufficient health care resources are available; (3) reduce the impact on critical services; (4) address concerns, for example, by providing general and specific information to various societal groups; and (5) to ensure that the right measures are taken at the right time.

Protecting fundamental freedoms

Freedom of movement is one of the fundamental freedoms under the Swedish Constitution, but is not one of the ”absolute” rights and freedoms. This means that while the Constitution protects Swedish citizens from blanket limitations of freedom of movement or general stay home orders, freedom of movement can be limited through the law and qualified procedural rules.

To quarantine infected or infectious persons, or specific geographic areas such as a certain school or a workplace, the limitations of freedom of movement must be defined rather narrowly in scope, be necessary and proportional and based on specific circumstances foreseen by the laws, such as the Disease Prevention Act.

The trust-based Swedish approach, personified by the Swedish State Epidemiologist Anders Tegnell, here interviewed by Late Night host Trevor Noah, has been both hailed and heavily criticized.

2,000 Swedish scientists have signed a petition disapproving of his strategy and asserting that Anders Tegnell and the Public Health Agency of Sweden gambles with people’s lives and follows a dangerous “herd immunity” strategy that has resulted in a spiraling infection and mortality rate with considerably higher number per capita than in the other Nordic countries. Others regard Anders Tegnell as a hero, and more than 100,000 people have joined Anders Tegnell fan clubs. His face can be found on T-shirts across Stockholm and some have even gone so far to tattoo his portrait on their skin.

Proportionate restrictions

The Swedish Government has, however, made use of its powers under the Ordinance Act (Chapter 2, Section 15) to limit public gatherings and public events and to reduce the allowed maximum numbers from 500 persons since 11th March 2020 to 50 persons as of March 29th 2020. The ban was announced via a governmental decree, and made possible according to the Instrument of Government of Swedish Constitution (Regeringsformen). Such a restriction must not go beyond what is necessary in view of its purpose. Each restriction must therefore be proportionate. The governmental decrees in relation to limitation of public gatherings were issued after a formal request by the Public Health Agency of Sweden.

Furthermore, the Diseases Prevention Law of 2004, which gives the government further powers, was amended on 14th April 2020 by the Swedish Parliament (Riksdagen) upon a government bill proposed by the Swedish Government. The bill was subjected to routine constitutional referral procedure where Swedish Council on Legislation voiced its comments on some constitutional and procedural aspects of the original proposal. Changes which were subsequently reflected in the final bill passed by the parliament, although the recommendations and comments by the Swedish Council on Legislation are not binding for the Government nor the parliament.

The amendments sought to empower the government for a limited time – from April 18 to June 30, 2020 – with the right to issue certain public law regulations on specific measures in connection with the virus that causes COVID-19. The bill thus amended the Diseases Prevention Act of 2004 to provide the Government with the options to: temporarily restrict public gatherings; temporarily close stores, meeting places, and other gathering spots; and to enact other temporary measures of a similar nature. Nevertheless, the decrees must be submitted to the parliament for a vote.

The laissez-faire and trust-based Swedish approach is counterbalanced by inspections by the authorities, which in some cases have led to the closing of restaurants and bars which have failed to enforce and ensure a certain space among the patrons according to regulation issued by Public Health Agency of Sweden. However, some of the restaurants were allowed to open again after they demonstrated their compliance.

In addition, some Swedish municipalities have introduced peculiar measures, such as radical “nudging” approaches. Probably the best-known example is the city of Lund, which has dumped a ton of chicken manure in its central park to discourage up to 30,000 residents from having their traditional picnic on the lawn to celebrate the Swedish Walpurgis Night on April 30th.

Criticisms

One often overlooked effect of the Swedish strategy of pursuing primarily recommendations, rather than hard rules, is that it may have confused segregated groups with foreign backgrounds, which report high infection rates. This has raised  fears of a ‘blind spot’ in some communities and prompted teenagers, immigrant organizations and the Swedish state to engage in communication and public information campaign in segregated and remote areas. In Uppsala, for example, people can access information on COVID-19 in 15 different languages through interactive WhatsApp groups set up by the Cooperative Organization for Immigrant Unions in Uppsala (SIU).

Much criticism in Sweden is also voiced over the lack of protective gear by the community of healthcare workers and in particular those working to care for the elderly. While Sweden had gathered some stockpiles with equipment, it was not as prepared as its neighbor Finland, who had stockpiled a large amount of protective and medical equipment .

Relatedly, Sweden’s response has had an effect on cross-border collaboration and commuters. People in Northern Sweden have voiced their concern over the fact that the different strategies and conditions in Sweden and Finland would create border barriers, having a substantial effect on Swedish healthcare in these remote regions which heavily rely on healthcare workers from Finland. Similar fears have been expressed by cross-border commuters in the more densely populated Danish-Swedish Øresund region, such as the two authors of this contribution.

Finally, like in many other countries, COVID-19 related surveillance techniques are also heavily debated in Swedish society. Sweden also participated in a joint statement of several EU governments raising concerns over many substantial aspects, such as the rule of law, proportionality, regular oversight, time limitations and basic democratic freedoms being curtailed.

 

Behrang Kianzad holds a Master of Laws from Lund University, Sweden, and is a PhD-fellow at the University of Copenhagen’s (UCPH) Center of Advanced Studies in Biomedical Innovation Law (CeBIL).

Timo Minssen is a professor of law at the University of Copenhagen and the Founding Director of UCPH’s Center for Advanced Studies in Biomedical Innovation Law. He is also affiliated with Lund University as a researcher in Quantum Law.

Timo Minssen

Timo Minssen

Timo Minssen is Professor of Law at the University of Copenhagen (UCPH) and the Founder and Managing Director of UCPH's Center for Advanced Studies in Biomedical Innovation Law (CeBIL). He is also affiliated with Lund University as a researcher in Quantum Law. His research concentrates on Intellectual Property, Competition & Regulatory Law with a special focus on new technologies in the pharma, life science & biotech sectors including biologics and biosimilars. His studies comprise a plethora of legal issues emerging in the lifecycle of biotechnological and medical products and processes - from the regulation of research and incentives for innovation to technology transfer and commercialization.

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