Paul Van Aerschot - Activation Policies and the Protection of Individual Rights: A Critical Assessment of the Situation in Denmark, Finland and Sweden

A Critical Assessment of the Situation in
Denmark, Finland and Sweden

PAUL VAN AERSCHOT
University of Helsinki, Finland

First published 2011 by Ashgate Publishing

Published 2016 by Routledge
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Copyright Paul Van Aerschot 2011

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British Library Cataloguing in Publication Data
Van Aerschot, Paul.
Activation policies and the protection of individual rights
: a critical assessment of the situation in Denmark,
Finland and Sweden
1. Public welfare--Law and legislation--Denmark.
2. Public welfare--Law and legislation--Finland.
3. Public welfare--Law and legislation--Sweden.
4. Welfare recipients--Employment--Denmark. 5. Welfare
recipients--Employment--Finland. 6. Welfare recipients-
Employment--Sweden. 7. Welfare recipients--Civil rights-
Denmark. 8. Welfare recipients--Civil rights--Finland.
9. Welfare recipients--Civil rights--Sweden.
I. Title
361.6140948-dc22

Library of Congress Cataloging-in-Publication Data
Van Aerschot, Paul.
Activation policies and the protection of individual rights : a critical assessment of the situation in Denmark, Finland and Sweden / by Paul Van Aerschot.
p. cm.
Includes index.
ISBN 978-1-4094-0179-7 (hardback) -- 1. Public
welfare--Law and legislation--Finland. 2. Public welfare--Law and legislation--Sweden. 3. Public welfare--Law and legislation--Denmark. 4. Human rights--Finland. 5. Human rights--Sweden. 6. Human rights--Denmark. I. Title.
KJC3435.A38 2010
344.03--dc22

2010027680

ISBN 9781409401797 (hbk)

One of the most important functions of the legal system is to balance individual and societal interests against each other. In this process the principal concern must be the protection of individual rights because of the fundamental imbalance in the power relations between the client and the decision-maker concerned. Activation policies highlight the need for protective measures in many ways. They also expose the limitations of the legal paradigm which call for the application of other approaches than the legal one to the implementation of social welfare legislation. My purpose is to examine the tensions between activation policies and individual rights in three well-established democracies. The study of the policies adopted in Denmark, Finland and Sweden should permit us to obtain a fairly broad view of the issues involved.

Many people have helped me to collect the material on which this book is based. Others have contributed to my research project by arranging beneficial working conditions. I am grateful to my colleagues, and especially rector Henrik Hgglund of the Swedish School of Social Science at the University of Helsinki, for the supportive and congenial spirit they have created at our institution. The school also provided funding (together with the Letterstedtska Freningen) for a visit to the Department of Society and Globalisation at the University of Roskilde. During my stay at the Department I received much help from Assistant Professor Jrgen Anker and benefited also from discussions with other members of the staff, in particular Director Hanne Marlene Dahl and Professor Peter Hilund. I would like to thank all my Danish colleagues as well as researchers Bodil Damgaard, Brian Krogh Graversen and Jan Hgelund from the SFI research institute (Socialforskningsinstituttet) in Copenhagen, with whom I had the opportunity to exchange views on Danish social policy. Thanks are also due to Erling Frederiksen, chairman of the Landsorganisationen af Arbejdsledige for the enlightening interview he gave me. Moreover, I have very much appreciated the assistance provided by the staff of our school library and other libraries in Helsinki and Roskilde. Without the help of these professionals it would be much more difficult to do research. At the final stage of my work Professor Michael Adler from the University of Edinburgh and Professor Neville Harris from the University of Manchester thoroughly commented on the manuscript, which made me add some important clarifications. Also the comments of two anonymous referees engaged by Ashgate Publishing helped me to improve my text.

For permission to reproduce previously published material in revised form I am grateful to: Jon Hilton, Amy Woods and Sweet & Maxwell ( is based on my article On the right to participation in activation processes in three Nordic countries, Journal of Social Security Law 2008:3, 99112) as well as Tom Scheirs and Intersentia (I used parts of my article Some aspects of the application of legal safeguards to active social policy in Denmark, Finland and Sweden, European Journal of Social Security 2003:3, 230248).

Paul Van Aerschot
University of Helsinki

By applying for a social benefit the client enters into a relationship with the authorities marked by an imbalance which necessitates protective arrangements. A certain trade-off inevitably takes place between their freedom of action and the conditions of entitlement in question. However, this process is subject to normative and other constraints determining its outcome. Social policies are enacted as laws and implemented by public and private actors. Legal provisions are instrumental in achieving social policy goals and, at the same time, each piece of legislation is integrated in the broader legal system protecting the recipient against violations of their rights. This integration process implies that the content and implementation of social security and social services are partly regulated by other legal elements than those included in the piece of social welfare legislation concerned. Such elements are, for example, other social welfare laws, general procedural requirements concerning administrative decision-making or certain fundamental principles such as proportionality, equality and self-determination (including respect for individual liberty and protection of ones private life). In other words, the intertwining of different components of the legal system with each other also limits the powers of the decision-makers in the field of social welfare, both at the level of enacting and applying legal provisions. Barriers against infringement of these limitations are provided by legal safeguards and, more generally, by legal security, as will be explained below. This protection is especially important in periods of intensified reforms, when vigorous action tends to overshadow legal safeguard considerations, which may be thought to hamper swift progress.