Constitutional Advice in Denmark

3.3.1 The Nordic Setting

As previously mentioned, several other Nordic countries have introduced distinctive forms of constitutional preview as an alternative to, or compensation for, reduced judicial review by the courts.

Regardless of these differences, the preview in both Sweden and Finland are fundamental elements of their constitutional systems. Accordingly, the Swedish and Finnish bills are often revised in the light of the constitutional preview, even though the assessments are not legally binding.

Turning our eyes towards Denmark, the situation is certainly different. Even though judicial review by the courts is of minor importance, there is no special control body responsible for exercising constitutional preview of legislation.^[84] Thus, we have not institutionalized—neither in the parliament nor in the judicial branch— an external control of the initial assessments of the government. Consequently, the only obligatory evaluation takes place in the Ministry of Justice, i.e. in the govern­ment itself. Even though there are other hearing mechanisms that can play a role in the legislative process, the following will provide an overview of the most central routes to constitutional advice and correction of disputable bills.

3.3.2 The Legal Department of the Ministry of Justice

In principle, the responsibility for the constitutionality of bills is placed on the ministry that presents the bill to the parliament, but the reality is that the Ministry of Justice plays a special role, too. The official guidelines for good governance in law- making^[85] recommend that the ministry in question consults the Ministry of Justice if the bill raises complex or fundamental questions about the relationship to the Danish Constitution, EU law or the European Convention on Human Rights.

Thus, even though the initial rough evaluation is handled by the specialized ministry, the final evaluation and explanation in the travauxpreparatories is normally based on assessments from the Ministry of Justice, which has a special department responsible for cross-ministerial advice and technical legislative reviews of bills from all ministries.^[86] This central role of the Ministry of Justice has also been emphasized in formal answers to the parliament, as is seen in the following example: ‘The legal department of the Ministry of Justice will guarantee that the bills from the government are in compliance with the constitution, EU law, fundamental rights etc.’^[87]

However, it is important to bear in mind that the legal department of the Ministry of Justice is still a part of the government. Hence, the ministry cannot be characterized as neutral or independent, as the civil service^[88] in the ministries are obliged to loyally work for the government in office and adjust and modify their professional assistance in the light of the prevailing political goals and needs. Political responsiveness is a key element in current civil servant norms of the Danish central administration,^[89] and this is also the case for employees in the Ministry of Justice, even though they are also expected to act within the framework of generally accepted professional standards. Accordingly, in more complex and controversial issues, the assessments from the legal department of the Ministry of Justice cannot be regarded as indisputable or impartial.

In addition to that, it is reasonable to stress that the assessments of the confor­mity with the constitution and other fundamental rights are very diverse in form and substance.^[90] Some bills are presented with comprehensive considerations, while others only include very sporadic comments on fundamental compliance issues. In some cases, such comments can be characterized as unsupported claims of compli­ance with the Danish constitution in the form of statements like “the bill does not raise any constitutional concerns” or “the bill is in the ministry’s estimation in accordance with Denmark’s international human rights obligations”.^[91]

Another important point is that, under normal circumstances, the legal depart­ment’s evaluation of the constitutionality of the bill is not published, nor is there an absolute right to access to the documents as pursuant to the Danish Access to Public Administration Files Act.^[92] In rare instances, the government can choose to make the memorandum from the legal department of the Ministry of Justice publicly avail­able, often in response to an explicit request from the parliament. In other cases, the request for access to the legal assessment is rejected with reference to a potential risk of a future court trial for which reason early publication of such a document could harm the negotiation position of the state. In the rest of the cases, the government simply denies access to information with reference to the internal character of the documents.^[93]

Whatever the circumstances, the poor publication rates imply that is not possible to examine the nature of the advice from the legal department of the Ministry of Justice more closely. As already indicated, the advice is most often integrated in the commentary part of the bill, and as such expresses a common governmental review of the constitutional question at hand.

3.3.3 Committees with Stakeholders in the Pre-legislative

Work

Committees are well-established options for advice and impact in the pre-legislative work, and Denmark has had a long tradition of corporatism in the form of policy preparation committees with interest group presentation.^[94] These committees have in many cases also included different independent experts.

However, Scandinavian corporatism in general seems to be in decline.^[95] With regard to law-preparing committees, since 1980 Denmark has experienced a rather dramatic decrease in the number of such committees, and today formalized external input and influence from stakeholders and experts in the crucial drafting phase is no longer the rule, but the exception. Currently, most legislation in Denmark is prepared in internal committees consisting of government officials, and the representation of interests and opinions has been delegated to lobbying, that is, a less institutionalized, more informal and ad hoc-based way of exerting influence.

This development also seems to have had consequences for the extent of constitu­tional advice in the law-making processes, since the input from independent experts such as law professors and the Danish Human Rights institute is more likely to emerge in more institutionalized processes like formal committees or hearing processes. Hence, independent expert input is no longer a natural element of the drafting phase of a new bill concerning constitutional issues.

3.3.4 The Role of the National Human Rights Institution

Under existing national law, the Danish Institute for Human Rights (DIHR) acts as a national human rights institution (NHRI) and thus plays a crucial role in monitoring Danish legislation and ensuring compliance with human rights.^[96] Even though the overall purpose of the institute is to promote and protect human rights in accor­dance with the UN Paris Principles, the bylaws of the institute explicitly state that “The Institute must base its activities on the fundamental freedoms contained in the Danish Constitution and the human rights recognized at any time by the interna­tional community”.^[97] Thus, not only the international human rights conventions are in focus, also the national constitution is an important focal point of the work of the Danish Institute for Human Rights.

A principal task within the monitoring activities of the institute is to draft legisla­tive consultation responses or legal briefs.^[98] In these responses, the DIHR considers whether a given bill complies with the human rights in the national constitution and in international human rights law.

However, this advisory practice has a weakness in that the formal hearing process does not take place until after the bill has been presented to the parliament. This timing is a quite determining factor, especially in the light of the recent development in Danish legislation practice, where more and more bills are based on prior legislative agreements.^[99] In Denmark, minority governments are the rule, and the government increasingly attempts to approach the diverse political positions at an early stage of the decision-making process in order to settle the issue, i.e. before the bill is presented to the parliament. Such legislative agreements are in particular sought settled for politically controversial issues. Hence, the options for influencing a bill have decreased in such cases because an agreement that is the result of a carefully negotiated compromise is almost impossible to change.

Under these circumstances, the odds for influencing and changing elements in a bill seem quite low, but this assumption will be further elaborated in the paragraphs below.

It is relevant to mention a recent study of relevant bills presented in the period 2013-2018 that analyses the different modes through which the Danish government presents and applies human rights norms in the travaux preparatories—i.e. in the commentary part of the presented bill.^[100] Based on a thorough qualitative analysis of 18 bills, a rather striking conclusion is drawn: the Danish government has a rather minimalistic approach to human rights norms in the legislative process. That is, the ministries exercise a conservative evaluation where only the most legally consolidated norms, such as the Danish Constitution and the European Convention on Human Rights, are included in the human rights assessments, whereas other relevant international human rights conventions that are not directly incorporated in the national legislation—but that are still applicable—are not mentioned at all.

In the few situations where the question of compliance with human rights norms is addressed in more detail, the considerations are not necessarily very extensive. In contrast, an insufficient assessment of the claim for proportionality in the very specific case is often seen. Often, the interference is either claimed to be proportional without exhaustive argumentation, or the responsibility for securing proportionality in the appliance of the law is handed over to the front-line bureaucrats.^[101] These front­line bureaucrats, however, are not equipped with comprehensive guidelines from the legislators to cope with human rights compliance when implementing the law in practice.

This minimalistic approach is primarily seen in relation to international human rights norms, and is not to the same extent observable when it comes to the national human rights norms in the Danish constitution. Considering how old and vague the Danish constitution is, compared with international human rights norms, the references to, and analyses of, the constitutional provisions are seldom a powerful barrier for the legislator.

3.3.5 Expert Hearings and Discussions in Parliament

Another, more direct, way for the legislator to seek constitutional advice, is by arranging expert hearings in the parliament or in one of the standing committees of the parliament. The possibility of establishing such expert hearings was explicitly codified in 1989 in the standing orders of the parliament,^[102] and since that time, such hearings have been regularly conducted, though to a varying extent, depending on the committee and the political and strategical circumstances. The specific data on the frequency and content of these expert hearings is hard to gather, due to obstacles and inconsistency in the registration system of the Danish parliament.

The general impression is that constitutional and human rights expertise is regu­larly requested at these seminars and hearings if the subject raises human rights concerns or challenges. For instance, a hearing has been conducted on legal proceed­ings for foreign fighters^[103] and an expert meeting has been held on data protection.^[104] However, these expert hearings do not occur very frequently; an estimation is that the Committee on Legal Affairs conducts no more than two to three expert hearings annually, of which approximately half of them raise constitutional or human rights issues.

The obvious follow up question is whether this constitutional input actually makes any difference in the law-making processes of the parliament. Constitutional advice is first and foremost interesting and important if it succeeds in changing the original viewpoints and adjusting the draft text. A closer analysis of the frequency of, and the willingness to make, amendments during the legislative process of the parliament is obviously a massive task, which falls beyond the purpose and scope of this chapter. However, on the basis of the aforementioned collection of bills that raises issues regarding compliance with human rights obligations, an overview has been made possible.

The study of the most controversial bills from a human rights perspective in the period 2014-2018 draws a picture of a rather limited influence of constitutional advice and discussions in the law-making process. Hence, only in one case out of the 18 cases in total, a substantial amendment was made in the original proposed Bill. This single example of an adjustment was a clarification of the boundaries for confiscation of valuables from refugees arriving at the Danish borders during the refugee crisis.^[105] Even though this amendment was not expressly connected to constitutional advice or discussion in the explanatory report, a causal relation cannot be excluded and seems likely in the light of the severe human rights concerns several of the stakeholders presented at the time.

In all other cases, however, the sometimes quite heated debates did not result in any changes at all. The political positions seem rigid, and even in the exceptional cases where the NHRI found a violation of international human rights conventions, these warnings did not result in any amendments of the wording of the bill. The majority in the parliament, thus, was not influenced by the discussions and the severe warnings from human rights actors. Then again, it is important to remember the trend mentioned earlier towards settling complex political issues “in advance” so to speak, by signing an agreement between political parties that together constitute a majority and thereby back the minority government.

It is also relevant to emphasize that these controversial bills have always to a lesser or greater extent been approved as constitutional and in accordance with international human rights obligations by the Danish Ministry of Justice. Most often, the reasoning has been that the responsibility for the lawfulness of the legislation lies in the hands of the front personnel who were to apply the law in practice.^[106] That these law enforcers were expected to include human rights aspects in their discretionary evaluation was a regular mantra when the government argued in favour of compliance. Nevertheless, it was a common feature that the government and the legislator in the law-making process did not provide specific guidelines to inform the front personnel about the human rights pitfalls in appliance situations. Hence, the statement of lawfulness often appears unsubstantiated.^[107]

On the other hand, it is important to call attention to the fact that these observations mainly concern the relationship between the proposed Bill and relevant international human rights obligations. No studies have been conducted that only focus on national constitutional norms and their status in the legislative process. Thus, it is possible that the situation is slightly different in cases where only national constitutional rules are at stake, and this seems perhaps even plausible in the light of the current Danish trend towards anti-globalism and the success of extreme right-wing parties. These issues are dealt with in more detail in the following.

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