Renewal of emergency legislation
The foundations of the older emergency legislation were characterized by the needs of the Cold War and were based on some basic assumptions that in important respects can no longer be used as starting points for the foundations of the legislation.
One such prerequisite was our country's security policy stance, which implied non-alignment in peace with the aim of seeking neutrality in wars between states in our vicinity and especially a war between the great powers. Such neutrality, based on non-alignment, no longer applies with our membership in NATO.
The legal concept of the form of war that can affect the country is largely a legacy of the form of war of the Second World War, its way of beginning with a clear armed attack and the ways in which the war was then waged. These ways of thinking leave their mark both on RF Chapter 15 and in important parts also on other laws that regulate conditions before and during war. These forms were based on the fact that in all essentials it was a military war that was foreseen, even though it could be waged in such a way that the country was cordoned off and that the civilian population could be affected with extensive harmful effects primarily through the air war and rationing of various goods. These views on the forms of war are found with great clarity in emergency legislation to this day.
The view of the role of business in preparing for war was closely linked to the policy of non-alignment, our country's internal industrial policy and social conditions in the form of structure, ownership and, not least, a national loyalty among a large part of business representatives, which made preparedness for war a natural form of collaboration between business and the public sector. These conditions and views are still largely reflected in legislation.
The emergency laws on duty are still largely based on the country's population participating in total defense on a very large scale through far-reaching duty and volunteerism. The laws remain, but the scope of the duty is not at all as great as during the Cold War, even though we see a significant increase in the utilization of duty within total defense and civil society's participation in total defense through various non-profit voluntary organizations.
The new forms of hybrid warfare and their effects are partly unpredictable and can affect important parts and vulnerable structures of our society already in peacetime and without the antagonistic opponent being identifiable. These effects are foreseen, with the current legal order for war and peace, that the transition from peace, to peacetime crisis without an antagonist, to peacetime crisis with an antagonistic threat to war with a military element, is not clearly reflected in the legal order in the current crisis and emergency legislation. Instead, it is based relatively unilaterally on the fact that there is either peace or the threat of war and war. This can lead to legal obstacles to adequate adaptation to the prevailing threat situation and, in the worst case, lead to the fact that a reasonable increase in readiness cannot be achieved with legal support. Even war-like conditions in the immediate area can have extensive emergency consequences for our country, not least since we became members of NATO.
It is important to create a clear legal structure for readiness increases that takes into account the nature and scope of modern threats and that they can affect society in an antagonistic manner without a military threat or war being imminent. They must be given a legal form in terms of readiness that does not prevent the government and authorities from being able to increase readiness when the threat picture makes such increases deemed justified. The requirements for constitutional solutions are primarily that readiness increases must be able to be made more flexibly across the “entire threat scale”, which means, among other things, that certain types of readiness increases must be able to be made when hybrid war threats become apparent and thus before outright military war. Even readiness increases that more significantly affect a certain part of the country must be able to be made flexibly, as well as that certain important societal functions must be able to significantly increase readiness long before military war can be imminent.
Several different statutes therefore need to be reviewed and given a new design. This means that the RF must also be given a more modernly designed regulation of how the state's top leadership should be able to act in the event of a threat to the country's security and sovereignty. The statutes that are very intrusive in wartime (the Disposal Act, the Compulsory Legislation, the Act on Evasion and Destruction, etc.) were created with the military war of invasion as a clear starting point, but parts of them may prove, possibly with a different design, to need to be applied also under conditions similar to hybrid war. This requires a careful analysis that can lead to proposals with greater flexibility in the applications. The statutes that relate to planning, training and exercise activities in the face of new threats also need to be reviewed with a new focus.
The current emergency preparedness legislation mixes crises in peacetime with heightened preparedness for war in the same statutes, uses different concepts that probably refer to the same legal status, distinguishes between state and municipalities within the framework of public activities that refer to crises in peacetime and heightened preparedness for war. Not least, it can also be noted that different rules in different laws were added at different times and thus also based on a need that only applied to a smaller part of emergency preparedness activities, which gives an overall picture of dispersion and unsystematicity.
How should the legislation be designed?
A possible new arrangement could be that, with support in the RF[1], consider expanding the Act on Total Defence so that it includes all the obligations that should apply within the public sector, i.e. both the state and municipalities, in terms of preparations and activities during high alert, but also the responsibilities that should apply in the event of major crises for society in peacetime. A special law with an accompanying ordinance with uniform concepts and clarity regarding responsibilities and powers as well as rules on planning, training and exercises within civil defence could provide the status for the activities that is now largely lacking.
Current legal regulations for the participation of the business community in emergency planning and for making resources available to the total defence are in many important respects not adapted to the business community as it is today, with the rapid transition to “lean production” and “just in time” that has taken place and with the rapid technical and structural development that is taking place there. It is unclear in what legal order and to what extent other EU members can and want to participate in our emergency planning and make resources available to us under various threat conditions and how our business community can and should participate in supporting other EU states in a corresponding way, issues that in various respects have also become relevant in connection with our NATO membership. The forms of the business community’s participation in planning, training and exercises, as well as its conditions for being able to assist with various resources in the event of a heightened state of readiness, must therefore be clarified, not least in light of EU rules and the ongoing internationalisation of business activities, as well as in light of our NATO membership.
Personnel competence is crucial
The participation of the population in total defence raises significantly more complex issues than during the Cold War. Not least, issues of training and competence will be crucial for the various, often technically very advanced, activities of total defence to be able to function under high alert. Even if the total defence obligation can essentially be applied formally, the competence requirements for personnel deployed to war are likely to be considerably higher in most activities than during the Cold War. Many activities in society that are of great importance to total defence will very likely quickly find themselves in severe personnel shortage situations. The participation of the population in the civilian parts of total defence in the form of civil defence obligation and military service obligation therefore needs to be considered against the background of the personnel vulnerability that large parts of the public sector and the business community have in terms of endurance and special competence in important total defence areas. How personnel planning and war deployment should be carried out therefore needs to be considered more carefully than before and costs for selection and training may therefore rise significantly within the civilian parts of total defence. This requires a review of mandatory legislation in several different respects.
Structure of organization and management
The management of the civilian part of the total defence was previously based on the basic structure created by the peacetime public administration. This structure was supplemented by reinforcing bodies at central and regional level to ensure adequate management during high alert and war. Bodies such as the Defence Council, the Total Defence Executive Committee, the Civilian Commander as well as the system of functionally responsible authorities have now been dismantled and in some cases recently replaced by others.
Certain activities of great importance for total defence were for a long time carried out exclusively by public authorities and state enterprises or principals, for example transport, healthcare, telecommunications, etc. They could therefore be included in the total defence management system without special constitutional measures.
At various management levels within the previous total defence, the most important parts of the business community and their resources could essentially be included in order to achieve increased effect. The authorities responsible for the function entered into contingency agreements with the parts of the business community that were of greatest importance for the function. The so-called K-companies and the Construction and Repair Preparedness Agency (BRB) are such examples. Within the framework of a renewal of the work on the participation of the business community in the total defence, a concrete and tangible public-private collaboration must be established. The government therefore needs to take the initiative and conduct a dialogue with representatives of the business community on how such collaboration should take place and on what terms. The aim should be to clarify the role of the business community primarily for socially important infrastructure and necessary supply flows.
Today's organization for meeting severe stresses in society is clearly built with crisis preparedness as a starting point. The so-called principles of responsibility, equality and proximity form the basis for this and these principles are not all applicable to heightened preparedness for war. At the central authority level, sector areas have now been created with responsibility from one authority and requirements for extensive collaboration with business and the Armed Forces. This is a major advance in organization and that responsibility within civil defense work is given overall "supervision" in the form of the Civil Protection and Emergency Preparedness Agency, and eventually the Civil Defense Agency (MCF). At a higher regional level, a planning and decision-making structure has now also been created that greatly facilitates collaboration with business and the Armed Forces in concrete terms. At the regional level, the county administrative boards and county councils are responsible. At the local level, the municipalities are responsible.
The responsibility structure has thus been put in place, but the concrete planning activities for heightened preparedness and war are still not fully developed, which is likely due to a lack of instructions and directional planning data.
Contrary to what has usually characterized planning up to now, responsibility in the structure and organization of a modern civil defense must be designed with the most serious and most stressful events as a starting point, where all levels of society or the greater part of society are affected and not with a short-term peacetime crisis as a starting point. This does not of course prevent crisis preparedness from being of great value even with this starting point.
How should management work?
Now that the new responsibility structure within civil defense has been put in place, through various statutes that came into force on 1 October 2022, analyses can begin to be undertaken on how this responsibility structure is intended to function. There are three important aspects of the term “function” that come to the fore. Here, these three aspects of our management system within civil defense will be briefly and critically highlighted at certain points. The intention is to seek to create the conditions for a discussion that can then be expanded and possibly form the basis for certain changes in the way civil defense is managed in peace and war.
The first concerns how the specified order of responsibilities “works” with what the Total Defence Act states for activities in peacetime; in the words of the Act, “preparations for war”. In other words, the question becomes whether emergency planning in peacetime can be implemented with the clarity and force required within the various important areas of society so that it can be quickly translated into activities during wartime that serve the purpose of achieving the goal of civil defence.
In civil defence, emergency planning in peacetime for operations during wartime is in many ways fraught with various complex problems. One of these problems is that so many public institutions are jointly responsible for the planning. This applies to the ten sector-responsible authorities at central level, to which a large number of emergency-responsible authorities are also affiliated, also at central level. At a higher regional level, six geographically responsible civil area authorities have now been established, and at a lower regional level there are all state county administrative boards and the municipally organised regions. In addition, there are 290 municipalities at local level. This broad spectrum of responsibilities at several different levels and with different geographical area responsibilities is an important part of the problems surrounding civil defence planning.
In order for peacetime emergency planning to have a clear impact both within geographically identified areas at different levels and within the various activities that are primarily represented by the ten sector-responsible authorities' areas of operation (healthcare, food supply, order and security, energy supply, etc.), the entire responsibility system must be characterized by a consistent clarity regarding the direction of planning and its follow-up. The government must therefore develop clear planning conditions and - for planning to "work" - also include clarity regarding directives and regulatory authority from higher to lower levels within the entire public system, as well as clarity regarding directives and regulations within each area of operation and the possibility of being able to follow up whether directives for planning have been followed throughout the system.
This requires that the regulatory law must become a consistent legal order within the entire planning responsibility structure. This purpose is probably best served if a special regulation, supported by clarity in the Total Defense Act, is decided by the government regarding this system and not through inserted paragraphs here and there in various statutes that apply to different parts of the structure. Such a special regulation can then also form the basis for training and exercise activities within the entire structure and, through a uniform nomenclature and layout, show the way forward towards a civil planning that can be understood and implemented throughout the public sector.
The second aspect concerns whether the responsibility order that has now been decided can also function, not least as the command order that is intended to function during a heightened state of readiness for war. Both of these aspects also have a direct and tangible connection to each other, i.e. should the command order be changed during a heightened state of readiness or should it be as much as possible the same in peace as in war.
The third issue contains a different problem than the one just discussed. The problem concerns how the different parts of the structure should be organized for war, the latter a concept that appears in the legislation without any more specific requirements for how such an organization should look or function. A “war-organized” county administrative board, for example, looks different from one in peacetime, just as a municipality is led differently in war than in peacetime. The war organization of the civilian areas is not yet fully clarified, but it must be assumed that a civilian area in peacetime is primarily concerned with implementing the sector authorities’ war preparations within the respective civilian area. During a state of heightened alert, the activities of a civilian area are largely focused on operationally seeking to ensure that the goals within civil defense can be achieved, not least in terms of support for the Armed Forces, which requires extensive – and prepared – collaboration with the business community. At the national level, this requires that the wartime organization and operations of the sectoral authorities are focused on providing civilian areas and county administrative boards with the resource support that a war in different parts of the country may require.
National operational prioritization with a focus on clear requirements regarding supply issues in different parts of the country will govern how wartime organization should be shaped for the sector authorities and the emergency response authorities associated with them. Here too, a secured supply of resources from the business sector is of crucial importance. However, there are sector areas – for example, regarding healthcare or civil protection and rescue services – that are highly personnel-intensive and may need to be prioritized outside the peacetime regionally and municipally controlled geographical limitations. Here, it must be very clear how the relationships of obedience should be shaped between the various wartime organized public institutions, not least in relation to the various municipal activities and the business sector's contractual relationships with public activities at different levels.
Financing of civil defence activities must be ensured and a clear budgeting system must be established in the state budget. Monitoring of how budget funds are used to achieve concrete capability goals within civil defence must be introduced.
Does civil defense work together with NATO?
An important aspect of how civil defence works concerns whether the now decided Swedish responsibility scheme for peace and war is appropriate from the perspective that we are members of NATO. This perspective was in no way included in the considerations made by the Defence Committee or the so-called Structural Inquiry when the basis for the responsibility scheme was developed. The latter basis was also largely based on the traditional Swedish administrative model, with some minor deviations from this. The extensive investigation into civil protection and rescue services has also been carried out mainly without NATO membership being included in the considerations.
NATO membership means that Swedish operational planning for peace must include several other perspectives than those imagined by purely Swedish circumstances. The planning must include the threat of war and war affecting parts of or all of Northern Europe. NATO's military operations will then involve combat forces from several different countries that will operate on, for example, the entire Arctic Circle, in the Baltics, in the Baltic Sea or in the North Sea. Such operations must also be supported with extensive civilian resources, something that requires cooperation already in peacetime with other NATO countries on how resources should be prepared and allocated in different "war cases". Which country should "lead" different civilian operations in different war cases needs to be clarified in peacetime and of course practiced so that those who will be part of such a command organization know their tasks well and how they should be solved.
This requires extensive preparations already in peacetime, not least in terms of planning, inventory of potentially available resources, collaboration with NATO's various military command bodies, and such activities also require training and exercises already in peacetime. It is important that the responsibility on the civilian side is clear when it comes to operations that affect several different NATO states. Not least, the civilian area structure will probably need to be strengthened in order to be able to function as a command body for such operations.
The extent to which the legislation we currently have on total defence and the civil responsibility structure now decided in our country is appropriate in relation to various NATO needs in war is unclear and will likely require a great deal of analysis in collaboration with our neighbouring countries in NATO. It can also be said without exaggeration that this is urgent.