Current Political Environment—Triggering Factors

The reason why Denmark has not developed a convincing system or tradition of external constitutional advice is based on a complex mixture of different circum­stances. Over the past 20 years or so, however, it is clear that the strategic/political landscape in Denmark has been heavily influenced by the radical right, in particular represented by the radical right populist party, The Danish People’s Party.^[108] This party’s huge popularity has shaped both the content and the form of the legal and political discussions on constitutionality and the compliance with national and inter­national human rights norms.

First, it is important to bear in mind that the key issues of the Danish People’s Party are harsh immigration policies, law and order, less European integration, and generous welfare services to deserving natives.^[110] Accordingly, the party openly argues against international human rights norms whenever such norms hinder restric­tive initiatives towards immigrants, refugees, and ethnic and religious minorities. The Danish People’s Party praises the national Danish constitution in its original form and acclaims the existing cautious interpretation of Danish constitutional norms that leaves a wide margin of appreciation for the current legislator. A dynamic interpre­tation of human rights norms—like the one conducted by the European Court on Human Rights—is considered a nuisance.

At the same time, the political program of the Danish People’s Party is loaded with proposals and initiatives that are either directly against immigrants and Danish citizens with an immigrant background, or indirectly, by initiatives concerning crim­inals, gang members, and special regulation for socially marginalized residential areas.

Compared to many other European countries with similar radical right populist parties, the Danish People’s Party succeeded in gaining significant political influ­ence.^[111] In 2001, the party achieved a pivotal position in the Danish parliament after a good result in the general election. The Danish People’s Party became a permanent support party for the Liberal-Conservative government that ruled the country from 2001 to 2011. Thus, the party remained out of cabinet, but the minority govern­ment was generally dependent on its support to stay in office. The Danish People’s Party exploited this and demanded concessions on immigration policy and criminal policy in return for supporting the state budget and other major political initiatives from the government. Hence, the party succeeded in pressurizing the government to initiate special policies that it would not otherwise have chosen, especially concerning immigration policy.^[112]

Even though this influence was most prevalent in 2001-2011, the Danish People’s Party to some extent upheld its significance in the following years. Accordingly, the Social Democrats have now integrated the strict-on-immigration position in their policies. They have argued for stricter immigration policies in election campaigns since 2011, and this position clearly seems influenced by the pressure on its voter base from the Danish People’s Party.^[113] When the new Social Democratic government entered into office in 2019, its election victory was partly based on the fact that it had succeeded in winning back voters from the Danish People’s Party.^[114] Accordingly, the current government in Denmark had an explicit election promise not to alter the strict approach to immigration policies.^[115] Moreover, even though the Danish People’s Party suffered an election defeat in 2019, a new right-wing party, ‘Nye Borgerlige’, which was established in 2015 and is quickly gaining popularity, is even harder on anti-immigration policies than the Danish People’s Party and has a similar hostile attitude towards EU and human rights.^[116]

To sum up, the matter of constitutional advice is closely linked to the more general possibility of an external second opinion in cases of potential human rights infringe­ments. Over the past decades, the challenges and conflicts have first and foremost concerned immigration policies, and the common narrative among the general public has often been that human rights primarily protect immigrants and other vulner­able groups and that they risk standing in the way of politicians doing “the right thing”. This is probably one of the main reasons why the non-existence of an external constitutional advisory system has not been problematized until now.

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