frsrdg · GL04JO1 · 1998-01-01 00:00:00 — The first chapter of the Education Act echoes the Instrument of Government by laying down that activities within schools are to be organised in accordance with fundamental democratic values. Schools are, for instance, obliged to make every effort to thwart any attempt by pupils to subject others to offensive treatment. In discharging their obligations in this respect, however, as in all others, schools may not act in ways which are against the law. The actions of individual principals on the matter of clothing and symbols gave, with a few exceptions, no grounds for criticism from the Parliamentary Ombudsman. The discussions that had taken place between principals and teachers and their pupils accorded well with what was required when pupils express racist opinions, for instance. The Parliamentary Ombudsman considered it questionable that one principal had sent a pupil within the compulsory school system home to change clothes and told the pupil to stay away from few days until a tense situation had cooled off, but this did not result in criticism. A brief suspension of a pupil in the upper-secondary school was criticised, but only on formal grounds. A small number of school boards had decided on more comprehensive prohibition of certain badges or symbols. The Parliamentary Ombudsman pointed out that such prohibitions may not be based only on evaluation of the opinions that such symbols expressed. On the other hand, such prohibitions are permissible if they are based on a serious assessment that there is a risk that the badges might lead to disturbances in schools. Prohibitions are also permissible if the badges are judged to be offensive to pupils or members of the staff, by expressing, for instance, the kind of statement that could be subject to a penalty for inciting racial harassment. The Parliamentary Ombudsman expressed some criticism of the decisions of the school boards for being too sweeping or vague. In dealing with the confiscation of leaflets, which had occurred at one school, the Parliamentary Ombudsman declared that the circulation of printed material may be prevented only if it threatens public order. Leaflets cannot, therefore, be confiscated solely on the grounds that they are in conflict, for instance, with the aims of the curriculum. The enquiry did not, however, reveal whether the written materials were printed or not, and the reason for the confiscation seems to have been at least in part to maintain order in the school. The Parliamentary Ombudsman therefore went no further than to make these statements about underlying principles. The Parliamentary Ombudsman summarised the possibilities open to school managers and their obligations to take action when pupils wore certain symbols as follows. If the symbols merely express undemocratic opinions, the school managers actions must be of the kind that can be described as educative and enlightening, involving, in other words, discussion with the pupils, and with their families if they are underage, and for example by more intensive training. If the badges are of such a nature that they can, on serious assessment, give rise to the risk of disturbances in the school, for example stirring up conflict between pupils or requiring an unreasonable amount of classroom time for discussion, the school management may, either by issuing general rules of conduct or through a decision on the case in question, forbid pupils to wear the symbols so that they are visible at school. This prohibition may not, however, be enforced by methods other than those generally open to school managers, in other words through educative and enlightening actions or disciplinary measures as laid down in the Education Act and the Education Ordinance. For instance, pupils undergoing compulsory education may not be suspended, nor may the badges or symbols be confiscated. If the badges are of a kind that express disparagement of other pupils or members of the staff, the school management is obliged to intervene in order to fulfill the injunction in the Education Act and the curriculum to prevent pupils from subjecting others to offensive treatment. Not even in this situation, however, do school managers possess powers greater than those already described. However, in such a situation, school managers should consider the possibility of contacting the . The question of whether a authority had any legal basis for a decision to transfer administrative tasks, which involved the exercise of official powers, to a security company As a result of an occurrence at the detention facilities for aliens at C, one of the employees at the immigrant screening centre there, posed the question of whether it is reasonable for a security company, sub-contracted to the authorities, to be empowered to hold individuals in custody. In his adjudication of January 23 1997, the Parliamentary Ombudsman, . Lavin, expressed the following opinion. The security functions undertaken by the guards employed by the private security company in this case have mainly involved implementation of custody orders and could therefore include the use of coercive measures. In other words, these are the kind of tasks that typically involve the exercise of official powers. In this context, note the adjudication of the Chief Parliamentary Ombudsman, . of 1994 (reg. 840-1994) concerning the enforcement of deportation orders. To what extent the tasks involving the exercise of official powers had already been transferred to the company by virtue of the contract with of 1993 or to the individual guards by the authoritys decision of 5 1994 is open to discussion. I myself, in view of the contents of the contract and more specifically of the appendix of specifications attached to it am inclined to the opinion that the contract itself implied the transfer of tasks involving the exercise of official powers to the company. In what follows, my point of departure is that both the contract and the orders issued to the individual guards implied that such tasks had been transferred to ordinary individuals. In the Instrument of Government 11.6.3. states that an administrative task that involves the exercise of official powers may only be transferred to a company, association, society, foundation or individual if this is provided for by law. The issue here is whether in the case in question and the Authority in the County of had any basis in law for assigning the tasks concerned to the company or to its individual guards. With reference to the Government 1975/76:209, has expressed the opinion that sufficient support can be found in the fact that the powers to transfer administrative tasks are provided by law and that the transfer itself is subject to no legal requirements. The Boards point of view is that Article 24 in the Act, which lays down that more detailed stipulations concerning implementation of the Act are to be issued by the Government or by the authority appointed by the Government, together with 7.14 of the Ordinance constitutes the kind of legal provision specified in 11.6.3 of the Instrument of Government . The arguments referred to by expressed in the Government 1975/76:209 require closer examination. The contains a discussion of the necessity of changing 11.6 of the Instrument of Government, which in its previous wording stipulated that administrative tasks involving the exercise of official powers were to be transferred through legislation. The argument stated that the legislative requirement constituted a special guarantee that the rights of the individual citizen would not be disregarded. The Minister however pointed out that the provisions of the constitution had been interpreted as meaning that the transfer itself did not need to take place through legislation but that legislation permitting such transfer was sufficient. The Minister considered that this was a serviceable interpretation and expressed the opinion that there were grounds for adjusting the wording of the regulation to say that the transfer should be provided for by legislation. Even after the resulting change in the constitution, some degree of concretisation should certainly apply to the wording of the legal regulation used to support the transfer of an administrative task involving the exercise of official powers to an individual without official authority. Concretisation is demanded both with regard to the description of the transferee and the main contents of the tasks transferred, see for instance , grundlagar och tillhörande författningar med förklaringar (Statutes with Explanations) 1980, p. The intention underlying the demand for legislative support is to give the Riksdag influence over issues as significant as the transfer of the exercise of official powers to agencies without official authority. The way in which the transferee without official authority is to be described varies in the different regulations. In certain cases, the transferee is referred to by name, in others there is no such identification. When it comes to the specification of the administrative tasks that can be transferred, (op. assert, among other things, that the main content of these tasks is of course described, as a rule with the added wording in accordance with more detailed stipulations issued by the Government or by the authority appointed by the Government or the like. The writers also claim that in order to sustain the influence of the Riksdag it is probably necessary for the description of the main content of the tasks not to be so vague that new tasks can later be transferred to the transferee without a further decision by the Riksdag. The regulation in Article 24 of the Act contains an informative reminder that stipulations may be laid down about implementation. The Governments fundamental power to issue stipulations regarding implementation are laid down in 8.13.1 of the Instrument of Government. Thus, the regulation in the Act cannot be characterised as granting the Government a specific power (see . En Kommentar [The Act. A Commentary] 1989 p. can any of the language of Article 24 of the Act be construed as granting the power to transfer administrative tasks to those without official authority. The interpretation of this legal stipulation by seems to me to be strange and in fact totally without basis. I can well imagine that where detention centres are concerned, there is a great need for and other authorities to be able to transfer supervisory tasks involving the exercise of official powers to private security companies and individual guards. From a practical point of view, therefore, it is important that these authorities are granted the legal power, as laid down in 11.6.3 of the Instrument of Government, to adopt such measures. For this reason I am forwarding the case to the Government (to the ). In this context, it should be noted that in a memorandum dated February 6 1996 the has stated that in the Prison and the need has arisen to employ guards from licensed security companies for the supervision of prisoners and detainees during absences from a prison or detention centre. One of the points raised in the memorandum is that there is no legal provision regulating the delegation of authority that permits the transfer of the exercise of official powers to individuals or agencies such as security companies. The has therefore proposed the introduction of such a provision through changes to the Act on Correctional Treatment in Institutions (1974:203) and the Act on the Treatment of Detainees and Prisoners etc. (1976:371). The changes to the legislation proposed by the Ministry involve the kind of concretisation discussed above, i.e. clear definition of the transferee and the main contents of the duties to be transferred. From the description presented here, neither nor the Authority in the County of enjoyed any legal basis for the transfer of administrative duties involving the exercise of official powers. Properly, my adjudication should be able to conclude with this statement. However, in view of the fact that in its statement takes up the significance of 7.14 in the Ordinance, I would like to take this opportunity of expressing my opinion on this matter as well. The point at issue is whether the term detention centre guards (arrestantvakt) in 7.14 of the Ordinance also refers, as claims, to staff employed to supervise facilities arranged specially for the detention of aliens as laid down in the Aliens Act. What is clear is that the terms detention centre (arrest) and detention facilities (förvarslokal) are not synonymous. The terms detention centre or cells are used to denote premises specially arranged for the custody of individuals who have been arraigned, detained or arrested, see Articles 1 & 17 of the Act on the Treatment of Those Detained and Arrested etc. The reference in 5.13 of the Aliens Ordinance means that the provisions of the Act on the Treatment of Those Detained and Arrested etc. also apply to cases where the custody laid down in 15.12 of the Aliens Ordinance results in deprivation of . 15.12 of the Aliens Ordinance contains an absolute prohibition against confining children taken into custody in cells for instance. Where adult aliens are concerned, such premises may still be used but should be avoided see the Governments reasoning behind the Aliens Ordinance (1989:3), which states that an alien taken into custody should naturally be detained in premises specially adapted for this purpose. The Ordinance with Certain Provisions concerning Cells (1958:215) contains regulations about minimum standards for the design of such premises. However, it is probable that no law or regulations have been issued about the premises specially adapted for the custody of aliens. It may well be the case that such specially adapted detention facilities have for a long period of time as asserts in its statement been considered as cells. As is made clear above, however, such special detention facilities cannot legally be regarded as detention centres. It therefore follows that the possibility of appointing detention centre guards afforded by 7.14 of the Ordinance can be considered to extend the right to appoint individuals to supervise the premises specially adapted for the custody of aliens. As has been made clear, and the in the County of had no legal basis for the transfer of administrative duties involving the exercise of official powers to those without official authority. As, in consequence, the tasks assigned to the security companies and their employees could not involve the exercise of official power, the staff who actually performed the supervisory duties when the event in question took place, are not subject to my inspection. I am therefore unable to make any statement as to whether they can be accused of any negligence. I can state that and the in the County of acted improperly in transferring administrative duties involving the exercise of official powers without having any basis in law for doing so. Neither of these authorities can escape criticism for their actions. It is, however, also my opinion that there is a shortcoming in current legislation as the authorities lack the necessary legal authorization to appoint individuals who are not public officials to supervise detention centres. The question of whether a TV-team should be allowed to be present during an inspection enjoined by the Licensing Act (1994:1738) S. raised a question about the way in which a together with several other agencies carried out the inspection of a restaurant in the course of its supervision of compliance with the Licensing Act. In his adjudication of February 11 1997, the Parliamentary Ombudsman, . Lavin, expressed the following opinion. The first question is whether the licensee of the premises had on this occasion granted permission for the TV-team to enter any sections whatsoever of the premises not normally in principle open to the public. Here, I do not consider, in view of what is said on this matter in the complaint, that it is enough to assert that the licensee made no objection to the presence of the team. In my opinion, what was demanded was clear information and an explicit agreement in other words, that the licensee or his representative, before stating his position, should have been informed about his right to deny access to anyone but the officials who possessed the right to enter. The agency primarily responsible for the inspection, here , should have ensured that this information was given. When it comes to the dissemination of information subject to secrecy which took place or could have taken place on this occasion, my opinion, like that of , is that the very presence of the TV-team, even if this was per se with the consent of the licensee, involved, in view of the inspection staffs lack of complete control over events, such a risk of secret information being divulged that should not have permitted it. This assessment could have been different if consent in that case clear and unambiguous had also been given to such information being disclosed to third parties. In the light of what has been said, my finding is that came to the correct conclusion in its enquiry. In view of the regulations about secrecy applicable here, the mass-media and other third parties should not have been permitted to be present to the extent they were while inspection by a supervisory authority was taking place. Secrecy was incumbent in this case out of regard for the inviolability of the personal and financial circumstances of an individual. Such interests impose restrictions on the contacts between public agencies and the mass-media (cf. Article 7 of the Ordinance on , 1995:1322 and Article 5 of the Ordinance Containing Directives for County Administrative Boards, 1990:1510) in such contexts, with the exception of situations where the right to communicate information applies. What occurred in this case also highlights the application of certain fundamental principles of administrative law. An authority must, of course, ensure that an inspection does not involve any greater disturbance for an individual than is absolutely necessary in implementing the inspection. what is known as the principle of necessity, which is dealt with in , Allmän förvaltningsrätt (Public Administrative ) 17, 1995, p.149 and Lavin Offentligrättsligt vite I (Penalties in Public ) 1978, p. 73 f.). In the case at issue, the possibility cannot be excluded that in permitting the TV-team to accompany its staff occasioned individuals the owner of the restaurant, his staff and clients unnecessary distress and discomfort. Here I would also like to emphasise how important it is for authorities to use regulations for their intended purpose (Cf. the principle of the improper use of power, which is dealt with in op.cit. 67 and the Parliamentary Ombudsmans Annual Report for 1996/97 p. Applied to the case in question here, this means that the right of access to the premises may only be used for inspection purposes and not, in other words, to afford journalists access to the premises concerned. In my opinion, inspection accompanied by a TV-team can easily take a form that is not compatible with the principles of administrative law described here. The question of whether the members of an environmental board had deliberately or at least negligently issued a permit that conflicted with a detailed development plan L., a lawyer, asked the Parliamentary Ombudsman to examine the way in which in the local authority of K. had dealt with a permit allowing the sale of foodstuffs in conflict with the detailed development plan. In his adjudication of 5 1997, the Parliamentary Ombudsman, . Lavin included the following remarks. The decision to adopt or to change a detailed development plan and the like does not apply until the decision has gained legal validity (5.34 of the Planning and Act). The plan in force when this particular decision to issue a permit was announced on 12 1993 prohibited the sale of foodstuffs within the area concerned. This plan was not altered during the period it remained in force, which expired on 1995. The planning change desired by the local authority with regard to the prohibition of the sale of foodstuffs did not come about until 1996, as a result of a decision of the local council (in ) and, after appeal had been made against it, a decision of (in ) and the Government (in October). As has itself admitted, the permit of 12 1993 allowing the sale of foodstuffs was in breach of the prohibition in the detailed development plan then in force against such sales. has however claimed that this permit concerned a measure involving only minor deviation from the detailed development plan which was compatible with the plans intentions (see 8.11.6 in the Planning and Act). When an appeal was lodged, and the Administrative Court of Appeal found that the regulation regarding exceptions invoked by the Board did not apply. therefore rescinded the decision to issue the permit, and the Administrative Court of Appeal did not in its turn alter the decision of . The Supreme Administrative Court later refused to permit review of the case. The question is whether the members and officials of the environmental board realised or should have realised that the permit was in breach of the regulations and therefore acted against their better judgement or through sheer negligence. Obviously, in many cases disputes may arise about the applicability of a certain legal regulation. Opinions may, for instance, differ about the implication of a requirement in the regulation or the way in which actual circumstances match the regulation. In the case in question, however, has asserted an opinion that, with regard to the wording of the regulation regarding exceptions and the actual circumstances, cannot be regarded as anything but unwarranted. The decision to issue a permit of 12 1993 contained no reference to any consideration of the compatibility of the measure with the intentions of the plan or even the legal prerequisites for issuing a permit that conflicted with the plan. In fact there was no explanation at all of the Boards reasons for issuing the permit. The points raised by the City Architect in the documents he drew up to assist the Board in making its decision were, in essence, of no value to the Board in its consideration of the planning application. The legislative changes and the attempt to alter the detailed development plan mentioned by the City Architect in these documents had, in other words, no bearing on the treatment of the application. The proposed changes to the detailed development plan adopted by the local council but not accepted by the Government after appeal had been made were intended to rescind the prohibition against the sale of foodstuffs. In view of this, it is difficult to understand how the board could, while the existing plan was in force, make the decision to grant a permit for such sales without realising that it was disregarding the legal regulations concerning the issue of permits which conflicted with such plans. If it had been legally possible to issue a permit in the case in question without first altering the plan, no changes in the plan would have been needed to achieve the desired aim of permitting the sale of foodstuffs in the locality. Therefore, the very events preceding the planning application, i.e. the attempt to alter the plan, indicate that the Board should, at the least, have realised that the decision to issue a permit while the old plan was in force was not compatible with the law. The business for which the permit was issued was neither a minor deviation from the detailed development plan nor compatible with the intentions of the plan.