The control of the legislative and the executive power by Norwegian courts, article in the Polish publication Panstwo i Prawo

Artikkel av høyesterettsdommer Bård Tønder, mai 2014.

An introduction to the Norwegian judicial system with particular focus on the competence of the courts to decide whether a law is unconstitutional and the competence of the courts to supervise administrative decisions

Abstract

The Norwegian Constitution was adopted on 17 May 1814, and established a tripartite division of power based on Montesquieu’s teachings. The judiciary was to be free and independent of the legislative power (the Storting) and the executive power (the King). In the 1800s the courts, with the Supreme Court in the forefront, established the supervision of the legal basis for the decisions made by the other two branches of government. With regard to the legislative power, this supervision entailed ensuring that legislation was in accordance with the Constitution. With regard to the executive power, it entailed ensuring that the exercise of public authority towards citizens remained within the legal competence of the public administration. This practice has developed in connection with the treatment of specific cases brought before the ordinary courts. Norway thus has neither an administrative tribunal for the consideration of cases relating to the public exercise of authority nor constitutional courts to deal with constitutional issues. The ordinary courts also undertake the review of the relationship of legislation to the incorporated human rights conventions and to Norway’s agreement with the EU (the EEA Agreement).

1. The distribution of power and the position of the judiciary in the Constitution of 1814

The Norwegian Constitution was adopted on 17 May 1814. It came about as a result of the dissolution of the 400-year union between Norway and Denmark due to the Napoleonic Wars. However, this did not result in Norway’s obtaining its freedom. The union with Denmark was followed by an enforced union with Sweden, which was dissolved in 1905. But during the brief period of transition from the union with Denmark to the union with Sweden in 1814, a group of resourceful men from different parts of Norway gathered and drew up a constitution for Norway. In historical terms this was an extremely significant event, because when the union with Sweden was established in the autumn of 1814, the Swedes accepted the fact that Norway had its own constitution.[1] This means that as early as 1814, Norway had its own democratically based legislative body – a parliament, the Storting. Norway also had its own government, although the king ruled over both Sweden and Norway. In addition, Norway acquired its own court with the Norwegian Supreme Court as the court of final appeal (see the Constitution of the Kingdom of Norway, Article 88).

The Constitution of Norway thus established a tripartite division of power based on Montesquieu’s teachings.

The Constitution established the judiciary as a separate branch of government, in accordance with the principle of the courts as free and independent of the other two branches of government – the legislative and the executive. Neither of these should be able to overrule or intervene in judicial decisions. In terms of state power, the Constitution represented something new for Norway – the union with Denmark had been based on the principle of the king as an absolute ruler. And in principle this applied also to the courts: formally the king constituted the highest court. But as early as the second half of the 1700s, the idea of ​​ free and independent courts had gained acceptance in Danish/Norwegian constitutional law. The Constitution, as it were, affirmed a principle that was already well established.[2]

2. The relationship of the judiciary to the other two branches of government

What relationship was the judiciary to have to the other two branches of government? Did the courts have decision-making authority or supervisory authority over them? I intend to begin by examining whether the courts were assigned the task of supervising – that is, reviewing – the legal basis for the decisions made by the other two branches of government.

For the Storting, the question was whether the courts had the authority to determine whether legislation was in accordance with the Constitution. Laws are passed by a simple majority, while a two-thirds majority is required to amend the Constitution. In addition, after a proposal for a constitutional amendment is made, the proposal cannot be adopted until after a new Storting election has taken place. There is thus a difference in the legislative hierarchy between the Constitution and ordinary legislation; the latter cannot change the Constitution, and if there is any conflict between legislation and the Constitution, the Constitution must prevail. One question, however, remains: Was it the task of the courts to determine that the Storting had acted within the constitutional bounds, or was it up to the Storting itself to decide this?[3]

This issue has been the source of some controversy in Norway. The consequence of giving the courts a supervisory function is that the Supreme Court then ranks above the Storting when the limits set by the Constitution for the Storting’s room for manoeuver are being determined. If the Storting seeks a different and broader scope for manoeuver, this must be secured through a constitutional amendment. And in specific cases, judicial control may imply that the courts obstruct measures that a majority of the country’s elected representatives regard as desirable.

For the executive power, the question was whether the courts should be able to determine whether the public administration remained within its legal competence in its exercise of public authority towards citizens.[4]

The experts disagree as to whether the Constitution, when it was adopted in 1814, granted the courts such a supervisory function with regard to the legislative and executive powers. In any case, the fact is that at a rather early point in time, the courts began to practise such supervision of both the executive and the legislative powers. There are examples of this supervision of the executive shortly after 1814. Opinions differ as to when the constitutional supervision of legislation was established. Some believe that it was established in practice after 1884, when the principle that the government must have the support of a Storting majority was introduced in Norway. In other words, since then Norway has had a system based on parliamentarism. Others believe that this supervisory function was well established long before this.

In any case, both the principle of judicial supervision of the administration (the executive power),  and the court’s power to oversee the constitutionality of legislation are currently well established in Norway. The Constitution includes no special provisions in this regard. The competence of the courts in these areas is based on constitutional customary law – a customary law that has the same status as the Constitution itself. This means that if the Storting should wish to revoke or severely restrict the power of the judiciary to supervise the other two branches of government, this must be dealt with in the same way as a constitutional amendment.[5]

3. How the courts exercise control

As has been mentioned, judiciary supervision of the executive and legislative powers developed through court practice. This means that the courts exercise a control function in connection with the treatment of specific cases brought before the ordinary courts.

Supervision of the executive power occurs when a citizen – an individual or an entity – files a lawsuit against the state regarding the  way in which a government agency has exercised the specific authority vested in it. In the same way, a case may be brought against a municipality where authority has been exercised by the municipal administration. There must therefore be a specific legal dispute for which a person or an entity has a real need to have a decision made, and where the outcome will be affected by the question of whether the appropriate exercise of authority is within the agency’s sphere of competence.

Similarly, supervision of the legislative power occurs in connection with disputes that are brought before the court, usually between the private and the public spheres – that is, state or municipal – but it can also be between private parties, or in criminal cases. The common denominator is that the question of whether a specific statutory provision is in accordance with the Constitution can affect the outcome of the case. Just as in administrative cases, there must be a specific legal dispute for which the parties have a real need to have a decision made. Thus one may not go to the courts on a general basis to determine whether a law is unconstitutional or how a specific provision of the Constitution is to be interpreted. It is only when these issues impact the resolution of a concrete dispute or a decision in a criminal case that the courts have grounds to become involved.

4. The impact of a constitutional violation

When in the course of legal proceedings the Court concludes that the law is unconstitutional, the result in the specific case is that the legislation does not have effect. We often say that courts in such a situation put the law aside – alternatively, that it must be interpreted restrictively so as not to conflict with the Constitution. The Supreme Court will normally make the final decision in a case of this nature.

Although the Supreme Court’s decision formally applies only to a specific case, in reality it will have a general effect on all similar cases as the one that has been decided. A Supreme Court ruling is a precedent, which means that all courts are obliged to follow the interpretation of the law affirmed or established by the Supreme Court decision.[6]

5. Which courts exercise a control function

The fact that judicial supervision of the legislative and executive powers takes place through specific legal disputes, and potentially in criminal cases, means that cases are always initiated in a first instance court, ordinarily a District Court, of which there are 66 in Norway. A District Court thus also has the authority to set aside a law as being in violation of the Constitution. The judgment of the District Court can then be appealed to a regional Court of Appeal, of which there are six, and then further to the Supreme Court.

It is thus through the regular court process that the principles of judicial control have evolved. There has been no wish in Norway to establish special courts for dealing with these types of cases.

Thus we have no administrative tribunal for the consideration of cases relating to the public exercise of authority, including special government agencies. Cases related to taxes and duties, social welfare and pensions, building permits, asylum or residence permits for foreigners or other questions about immigration, public permits for commercial activities, etc. – in Norway all these are brought before ordinary courts. In Norway, there has traditionally been little interest in establishing a separate court or special courts for these types of cases. This remains the prevalent attitude, although some voices are calling for change. In this area Norway is in line with Denmark and Iceland. A different tradition prevails in Sweden and Finland, where administrative tribunals have existed for around 100 years.[7]

Similarly, we have no constitutional courts to deal with constitutional issues in Norway. As has been mentioned, cases raising questions concerning the constitutionality of a law, such as a dispute or a criminal case, are brought before ordinary courts – i.e. the District Court, Court of Appeal and finally the Supreme Court. Nor are there any special procedural rules for dealing with these cases, except those brought before the Supreme Court. Normally, cases in the Supreme Court are heard and decided by five judges. In matters of particular importance the court may sit either as a grand chamber, with eleven judges, or with all the judges in plenary, i.e. 20 judges. There shall always be a plenary hearing if there is a possibility that a law may be set aside as being contrary to the Constitution. This is, in turn, related to the special position of the Supreme Court as a constitutional court in that the Supreme Court’s clarification of how the Constitution should be interpreted, and whether a law is unconstitutional, provides a basis for judgments when similar questions are raised in the future.

6. More detailed discussion of the control of administration[8]

The control of administration is often referred to as a control of legality or a control of validity. The object of the control is a decision of an administrative body – a formal resolution – which applies to the rights or obligations of a person or an entity. It may, for example, involve a person’s duty to pay taxes, a denial of an application to erect a particular building, etc. The question is whether there is such an error in the decision that it is not binding on the person or entity towards whom it is directed – i.e., the decision is invalid. The errors that may be referred to, and which suggest that the decision is not binding, are primarily:

- errors in the factual basis for the decision, or

- procedural errors.

However, the courts are also empowered to control the content of the decision. Here we must distinguish between two main types of decisions in which the scope of judicial supervisory authority varies.

One main type is decisions that shall be made if certain statutory or legally binding conditions are met. In these cases, the law determines both whether a decision is to be made and what it will involve. Examples of this are the decision on tax liability or the right to social benefits (public social insurance). Here the courts undertake a full review of the content of the decision and determine whether it is in accordance with the law. The objective of the review is to ensure that the administration has understood and applied the law correctly. If that is not the case, the decision is not valid, and will have to be set aside.

The other main type of decisions is where the law exclusively entrusts to the administration the discretion to decide whether a decision is to be made and what it will involve. What is decisive here could be, for example, professional discretion (in the areas of agriculture, fisheries, etc.), what is an appropriate and good solution, what is reasonable, fair or expedient, or whether the decision will depend on policy-based criteria, such as how strict we should be when it comes to immigration to Norway. These are issues that the courts normally do not review. Examples of this type of decision are whether a person should be allowed to operate a taxi business, serve alcohol in his restaurant, or construct a building on his property. We say that the administration of such areas has “absolute discretion” which is not reviewed by the courts. There is thus a limitation of the jurisdiction of the courts to review the content of the decision – a limitation that in any case formally separates the Norwegian judicial control function from the review that is carried out in the Swedish and Finnish administrative tribunals.

But this type of decision is also subject to a certain judicial review of the content. Courts can control that

- the administration has based the decision on considerations that lie within the legal framework,

- there has not been unfair discrimination, and

- the decision has not been made on a purely random basis or is not highly unreasonable.

The difference between judicial review of legally binding decisions and decisions adopted by means of absolute discretion can be illustrated with an example from the field of immigration. A decision on whether an application for asylum should be granted depends entirely on whether the legal conditions are met. The courts have full jurisdiction. A decision on an application for residence in Norway on humanitarian grounds must be made as a result of a broadly based assessment, where elements such as rationality, equal treatment and immigration policy considerations will be taken into account. The decision depends on a discretionary evaluation that the courts basically do not review. Thus there are limits to judicial supervision.

The question may arise as to whether it is reassuring from the point of view of the rule of law that the courts do not also fully control those aspects of the decision. This must be seen in connection with the fact that in the Norwegian administration an internal appeal and review system is in effect. In several administrative areas ​​this review is carried out by agencies whose review procedures are similar to ordinary court proceedings. For this reason we regard legal considerations as well attended to, even if such limits apply to the court’s power to review legislation.

There is one area where I do still hold reservations. This applies to issues involving the European Convention on Human Rights (ECHR). In these cases, the court must also review the proportionality of a decision, as the European Court of Human Rights (ECtHR) does. This will often imply closer control of the rationality of a decision than that carried out by traditional Norwegian administrative law. It remains to be seen whether the review of proportionality in ECHR cases will result in a general increase in the intensity of review of absolute discretion in other areas as well.

A consequence of the fact that the review is a control of the legality of an administrative decision is, as I have explained, that the court – when a decision is the result of an error – does not arrive at a new decision based on the merits of the case, but merely annuls the decision. The court shall only ensure that the decision was legal according to the facts that were available on the date the decision was made; it should not exercise administrative functions by making a new decision in the case. This system is applicable whether it applies to legally binding decisions or decisions made with absolute discretion.

7. More detailed discussion of constitutional control

A crucial question with regard to the courts’ constitutional control of legislation is how intense the control should be or, in other words, what is needed for the courts to set aside a law as unconstitutional. In a judgment from 1976[9] the Supreme Court operated with a tripartite definition of intensity depending on the constitutional provision at issue. The Supreme Court states in this connection:

With regard to the provisions for the protection of the individual’s personal liberty or security, I assume that the Constitution’s impact must be significant. On the other hand, with regard to constitutional provisions that regulate the working methods or mutual competencies of the other state powers, in my view [...] the courts must to a broad extent respect the views of the Storting.

Constitutional provisions for the protection of economic rights must in that respect assume an intermediate position.

Thus reference is made to three groups of constitutional provisions that are subject to different levels of intensity when being reviewed. The highest review intensity applies to “the individual’s personal liberty or security”, often referred to as political and civil rights. The lowest intensity applies to the organisation or internal working methods of the other branches of government. The third group, economic rights, is in an intermediate position.

For the last group, covering economic rights, the Supreme Court judgment discusses the importance of the Storting’s own view of the constitutional question. The first to vote stated:

I find it clear that the Storting’s understanding of the law relative to such constitutional provisions must play a significant role when the courts decide on constitutionality, and the courts must show caution with regard to ranking their assessment higher than that of the lawmaker. [...] On this basis I, for my part, am reluctant to ascertain a constitutional violation in cases where there is reasonable doubt, and where the Storting has clearly evaluated and determined that the law does not conflict with the Constitution. But if the judicial review of the constitutionality of legislation is to be a reality, courts must make use of it when they find it beyond reasonable doubt that the law will lead to results that are in conflict with the Constitution.

So it is only where there is reasonable doubt about the constitutionality of a law that the evaluation of the Storting should be given weight.

In the judgment of 1976 which concerned the assessment of compensation for expropriation of land for the construction of a road, the Supreme Court’s majority arrived at the conclusion that the law violated the Constitution’s requirement of “full compensation” for expropriation. Such a conclusion had not been reached since the interwar period. In recent years, however, the Supreme Court has set aside laws as unconstitutional in several cases.

Up to this point I have discussed the role of judicial supervision in ensuring that the law is in conformity with the Constitution. The question now is whether the courts, with the Supreme Court in the forefront, have other functions with regard to the other branches of government. The answer is that these functions are very limited. The Supreme Court has a function in connection with Court of Impeachment proceedings. Five of the Court of Impeachment’s 11 members are Supreme Court justices, and the Court of Impeachment is headed by the president of the Supreme Court. Impeachment is, thankfully, no everyday occurrence in Norway – the last impeachment trial was in 1927.[10]

It is more important to note that the constitutional control I have mentioned is a subsequent control. It occurs only after the law is adopted, and is dependent on the institution of legal proceedings in which the question of the relationship of the law to the Constitution is addressed. If this does not occur, then there is no constitutional control. We do not have a system whereby proposed legislation is examined by the Supreme Court for constitutional control prior to adoption. This arrangement does exist in Sweden, where a Supreme Court committee carries out such control.

It should be noted that a provision in Article 83 of the Constitution gives the Storting the opportunity to obtain the Supreme Court’s views on legal issues. The Storting rarely takes advantage of this opportunity. As far as I am aware, the last time this occurred was in 1945. One might ask why the Storting does not make use of this opportunity. I have not seen any analysis of the question. My private theory is that the Storting, at least in areas concerning the interpretation of the Constitution, does not necessarily want to leave it to others to provide a binding interpretation of the Constitution. The Storting itself will have an opinion on this point, and will act according to its own interpretation of the Constitution. And there is a point here. As I have mentioned, the fact that the parliamentary majority has had an understanding of what is required by the Constitution, and has acted on this understanding by adopting a law with a particular content, could in itself be a factor that will be considered to a greater or lesser degree when the courts control the constitutionality of the law.

The Constitution does not assign other functions to the Supreme Court in relation to the Storting. For example, it is the Storting itself that resolves any ambiguities in elections and election results, and not the Supreme Court, as is the case in the United States. Nor is it the Supreme Court’s task to resolve ambiguities in the internal regulations governing the Storting’s procedures or the relationship between the Storting and the government. The Norwegian Supreme Court plays no role here. However, it may be the case that the relationship between the Storting and the government emerges as a legal issue in a dispute before the courts, particularly in disputes regarding the distribution of powers as between the two branches. I refer to my previous remarks about the importance of the tripartite division of the constitutional provisions for constitutional control.

8. How the courts deal with cases that raise issues concerning the violation of Norway’s obligations under international conventions

In Norway, the dualistic principle is in effect: only convention obligations that have been implemented apply as part of domestic Norwegian law. However, we do apply a presumption principle: as a point of departure, we presume that Norwegian law complies with international law. But where there is a clear conflict, Norwegian law prevails.[11]

Several human rights treaties are given a particularly strong position in Norwegian legislation. This applies to the ECHR, the UN Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the UN Convention on the Rights of the Child and the UN Convention on Discrimination against Women. These conventions are given precedence over ordinary Norwegian law – in other words, in a collision with Norwegian law, the provisions of these conventions will prevail. But the Constitution takes precedence over the conventions.

The same procedures that apply to control of the constitutionality of legislation also apply to judicial supervision of adherence to the human rights conventions. The question is addressed in relation to a specific case as a dispute between private parties, a dispute between private parties and the state or municipality, or criminal proceedings. Thus it is basically the usual procedural rules for when you can bring a case before the courts that apply. However, there is an exception with regard to questions of violations of the ECHR.  A case may be brought to court in order to obtain a separate decision as to whether there has been any breach of the Convention, in contrast to the applicable procedures in questions of violations of the Constitution. I refer to my previous discussion on this point.

And in the same manner as constitutional control, the case will be initiated in the court of first instance and will follow the ordinary procedures, with the right to appeal to the Court of Appeal and then to the Supreme Court. In the Supreme Court proceedings, however, the issue often arises as to whether the case should be heard in plenary session or possibly in grand chamber.

Norwegian courts must follow the decisions of the ECtHR. Where there is doubt as to how the ECHR is to be interpreted, the Norwegian courts shall not adopt too dynamic an interpretation of the Convention. Norway takes the view that it is primarily the responsibility of the ECtHR to develop the Convention. But the Norwegian courts shall apply the same methodology for interpreting the Convention as does the ECtHR. In this connection the Supreme Court has stated that Norwegian courts shall, on the basis of the practices of the institutions of the Convention and the perceptions of values ​​and traditions upon which our society is based, seek to arrive at an understanding of how the provisions of the Convention are to be interpreted.

The Supreme Court has also commented on the weight to be given to the decisions of the UN Human Rights Committee relative to internal Norwegian legislation. The conclusion is that the committee’s interpretation of the Convention must be given considerable weight as a source of law in Norwegian legislation.

Norway is not a member of the European Union (EU). On the other hand, Norway, together with Iceland and Liechtenstein, entered into an agreement with the European Union on economic cooperation: the EEA Agreement. The EU principle of free movement of goods, persons, services and capital – the four freedoms – applies as though Norway were a member, with the exception of fisheries and agriculture. Norway is also subject to the same competition rules as the EU members. To monitor compliance with this agreement a separate surveillance authority was established, the ESA, which fulfils the same control function as the Commission within the EU. And to resolve disputes over the interpretation of the Convention, a special court has been established – the EFTA Court – which has its seat in Luxembourg, as does the EU Court of Justice.

The main part of the EEA Agreement has been incorporated into Norwegian law. As is the situation with the human rights conventions, legislation has established that in the event of a conflict, the legal provisions that serve to fulfill Norway’s obligations under the Agreement take precedence over other laws that regulate the same conditions.

We have no special courts for dealing with cases where the EEA regulations are applicable. Private individuals wishing to enforce their EU/EEA rights must therefore institute legal proceedings in the ordinary courts that interpret and apply EU law.[12]

With regard to unresolved questions of interpretation, the regulations give courts the right to submit the matter to the EFTA Court, which offers advisory opinions on the interpretation of the EEA Agreement. Questions to the Court may be posed by the relevant court hearing the case, and are not reserved as an exclusive right for the Supreme Court.

As EEA regulations take precedence over national legislation, in specific cases questions might arise as to whether a law should be set aside as contravening the EEA Agreement – an assessment that is inherent in judicial supervision. This supervision, too, is exercised only through specific court cases brought by private parties, which must begin in the court of first instance. When such cases are dealt with by the Supreme Court, the question will often arise as to whether they should be heard in a plenary session or in grand chamber (11 judges).

9. Concluding Remarks

As this article has discussed, Norway has no special courts or specifically administrative or constitutional courts, but rather has a system where all of the types of cases that I have now reviewed are dealt with by ordinary courts. Then one might ask whether we have special judges with particular expertise in these areas. The answer is that we do not. In Norway, there is no specialisation in law studies. We produce jurists with generalised competence. There is a high degree of specialisation within the legal profession, but this is not yet the case in the courts. Thus in Norway all judges – whether in District Court, the Court of Appeal or the Supreme Court – must be prepared to deal with any case, whether it raises issues relating to constitutional law, administrative law, human rights or EEA law.


[1] Knut Mykland: Kampen om Norge 1784-1814, Norges Historie, Vol. 9, Gyldendal, Oslo, pp. 361-414.

Riksforsamlingens forhandlinger, Vol. III, Christiania (Oslo), 1914-1916, pp. III-XIV.

(In Polish literature see J. Osinski: Konstytucja Krolestwa Norwegii, Warsaw 1996, pp. 8-9.)

[2] Erik Holmøyvik: Nokre historiske utviklingsliner for domstolane sitt sjølstende i Noreg, Nils A. Engstad, Astrid Lærdal Frøseth and Bård Tønder (Eds.): Dommernes uavhengighet, Fagbokforlaget, Bergen, 2012, pp. 112-122.

Erik Holmøyvik: On the Origins of Judicial Independence, Nils. A. Engstad, Astrid Lærdal Frøseth and Bård Tønder (Eds.): The Independence of Judges, Eleven International Publishing, The Hague, 2014, pp. 49-51.

[3] Johs. Andenæs: Høyesterett som politisk organ, Lov og Rett, 1965, pp. 22-43.

[4] Eivind Smith: Konstitusjonelt demokrati, Fagbokforlaget, Bergen, 2012, pp. 309-313.

[5] Frede Castberg: Norges statsforfatning, Vol. I, Universitetsforlaget, Oslo, 1964, pp. 49-52.

[6] Torstein Eckhoff: Høyesterett som Grunnlovens vokter, Jussens Venner, 1976, pp. 22-43.

[7] E. Smith, ibid., pp. 310-311.

[8] Eivind Smith and Torstein Eckhoff: Forvaltningsrett, 9th edition, Universitetsforlaget, Oslo, 2010, pp. 544-548 and 637-641.

[9] Norsk retstidende (Norwegian Supreme Court Reports), 1976, p. 1.

[10] E. Smith: ibid., pp. 292-298.

[11] Johs. Andenæs and Arne Fliflet: Statsforfatningen i Norge, 10th ed., Universitetsforlaget, Oslo, 2006, pp. 28-33.

[12] E. Smith and T. Eckhoff: ibid., pp. 32-34.

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