Discussion

3.5.1 Insignificant Constitutional Advice

For constitutional lawyers, the situation in Denmark can appear a bit discouraging due to the fact that constitutional discussions play such a minor role in the legislative process as well as in the courts.^[117] On the other hand, observants and political actors have often chosen to read this as an indication of a splendid and well-functioning state system and a perfectly flexible constitution.

Obviously, it is a sign of health that so far, no claims have emerged for a more effective and systematic model of constitutional advice. If the situation was serious, one would expect such criticism and claims for a change to appear. It is also relevant to emphasize that the constitutionality of an adopted bill has only been overruled by the courts once in Danish history;^[118] even in the light of the limitations mentioned earlier on raising a constitutional claim by the courts, this is a promising situation. Thus, it is fair to conclude that the Danish constitution has not caused serious problems when applied in practice.

3.5.2 Possible Change of Attitude?

However, there is an indication that this situation will change if constitutional matters that arise no longer primarily concern immigration or criminal policies, and if the initiatives conflict with norms in the national constitution to the same extent as in the international human rights conventions. In such a situation, it can be acknowledged as a problem that Denmark does not have a well-established tradition of constitu­tional advise. The present situation with a global pandemic and extensive Covid-19 restrictions can serve as an illustrative example of the problems and risks we are running with a weak tradition of independent constitutional advice.

Hence, during the autumn of 2020, the Danish government’s approach to dealing with the coronavirus pandemic has increasingly been subject to criticism from the opposition and the public based on constitutional and human rights arguments.^[119] Firstly, the government has been criticized for acting autonomously and not including the parliament in key decisions, but instead informing the political parties in the parliament just before decisions have been announced to the public or even after­wards.^[120] This is of course a rather serious critique due to the fact that the current social democratic government is indeed a minority government, as the Social Democrats only have 25.9 % of the seats in parliament.

Secondly, not only the process, but also the content of the Covid-19 regulation has been questioned based on constitutional arguments. The planned new bill on epidemics put forward in the beginning of November 2020 was exceptionally with­drawn soon after it was presented to the parliament. The primary reason for this unexpected withdrawal was a number of disproportionate interventions in individual freedoms and rights, such as forced vaccination and harsh restrictions in the right to assembly, but also a criticism of the distribution of enormous powers to the minister of health and other members of the government in the epidemics control.^[122] Hence, the bill on epidemics was criticized from a wide range of interest groups and human rights organizations.

Another connected incident is the so-called mink scandal where the Danish government in November 2020 decided that all mink in Denmark should be culled after a mutated form of coronavirus that can spread to humans was found on a substan­tial number of mink farms. The decision was based on a concern that the mutated virus could pose a risk to the effectiveness of a future Covid-19 vaccine. The problem, however, was that the mink farmers were told to kill their animals even though the government did not have sufficient legal basis for this drastic measure. The Social Democratic minority government acted in anticipation of an act, but the act did not actually exist yet, and they failed to secure parliamentary backing before the farmers were told to begin the destruction of their livelihood.^[123] Against that background, the awareness of property rights and rule of law has increased, as these questions have been heavily discussed in the media and in the public in the wake of this mink scandal.

What is interesting here is that these events have given rise to (1) a demand for increased involvement of external experts in the government’s decision-making processes in emergency situations such as pandemics and (2) establishment of new forms of parliamentary-based scrutiny of the government. Thus, an external eval­uation of the Covid-19 crisis management of the Danish government has recom­mended establishing an external advisory committee consisting of legal experts to strengthen the legal quality control of political initiatives in future emergency situa­tions.^[124] Moreover, a new model for initiating independent commissions of inquiries has been established, allocating more power and influence to the parliament rather than to the government.^[125] In connection with this, a new standing Committee of the Parliament has been set up, the objective of which is to examine cases of possible maladministration and take decisions on setting up a formal commission of inquiry.^[126]

All these things considered, the recent development in Denmark has taken an interesting turn towards seeing constitutional issues as more relevant than before. Moreover, the situation has revealed the risk involved in relying solely on the assess­ments made by the government and in not having easy access to alternative external constitutional advice.

3.5.3 Denmark—A Nordic Outsider

Regardless of recent indications of a possible change of attitudes, constitutional advice does not play a significant role in the current Danish constitutional system. This is an interesting point by itself. Even more remarkable, however, is how this situation contributes to the total picture of constitutional control of legislation and the maintenance of constitutional and human rights norms in Denmark.

The aforementioned comparative study of the Nordic constitutional systems^[127] shows an interesting recurring tendency regarding Denmark across the studies of different constitutional features. In many ways, Denmark stands out as the odd pupil in the classroom when it comes to central issues concerning mechanisms for parlia­mentary control of the executive, judicial review of legislation and human rights in the constitutional system.

Firstly, Denmark remains the only Nordic country that has not established a parlia­mentary committee dedicated to constitutional issues.^[128] Secondly, while the distinc­tion between eastern and western Nordic Countries is useful when it comes to the existence of ex ante review independent of the executive power, where Sweden and Finland have such preview whereas Denmark, Norway and Iceland do not, this is not for Denmark’s part compensated by a slightly more intensive judicial review of legislation, which should be expected for a west Nordic country. Hence, there are clear signs that judicial control over the legislator has been growing in Norway and Iceland, while this is not the case for Denmark, whose courts are still at the reluctant end of the scale in constitutional cases.^[129]

Lastly, Denmark stands out when it comes to the protection of human rights in the internal constitutional system. Denmark does not have a comprehensive and updated catalogue of human rights in its national constitution, and at the same time upholds a reluctant attitude towards incorporating international human rights treaties into domestic legal orders.^[130] Even though Denmark may de facto maintain a greater range of human rights than its antiquated constitution suggests,^[131] and even though the state of the law cannot generally be derived directly from the formal legal system, the overall constitutional framework, nevertheless, draws a picture of a Danish system that is still very sceptical towards external constitutional adjustments to the assessments of the legislator.

Thus, it is not necessarily the insignificant Danish constitutional advice that should attract attention in a comparative context, but rather the combination of this insignif­icant constitutional advice with other related issues with a similar outcome, namely a rather weak formal protection of constitutional rights. In case of a very old and partly outdated constitution that is seldom—and always cautiously—enforced by the courts, one needs a more developed ex ante control or frequent and comprehensive use of constitutional advice to secure the importance and effectiveness of constitu­tional norms.

3.5.4 Conclusion

Contrary to Sweden and Finland, Denmark has not institutionalized a formal consti­tutional preview of legislation, and external constitutional advice does not play an appreciable role in the legislative process. Moreover, Denmark has not followed the trend in the other western Nordic countries, Norway and Iceland, towards a more comprehensive and active judicial review of legislation by the courts. The consequence of this—leaving constitutional assessments solely to the legislature, in practice the government itself—can be problematic in many respects.

Obviously, the most critical consequence is the risk of abuse of power by a viola­tion of the rights and principles upheld by the constitution. Even though it remains to be documented that the current Danish set-up has had such severe outcomes, the insignificant constitutional advice can result in undesirable consequences in other respects as well, especially if we take into account the extreme rigidity of the Danish constitution, given that it is one of the hardest constitutions to change in the world.

Hence, the combination of these features entails that there is a significant lack of constitutional debate and dialogue in the political sphere as well as in the general public debate. The Danish Constitution has not been formally revised since 1953; accordingly, the content and relevance of the national constitution has not been subjected to a thorough debate by the Parliament or the public before a referendum. Furthermore, contrary to all the other Nordic countries, a special parliamentary committee dedicated to dealing with constitutional issues does not exist in Denmark, and constitutional discussions and arguments do not play a significant role in the parliamentary discussions of bills.

At the same time, human rights protection through the European Convention of Human Rights and other international conventions has been developed and refined.

Undoubtedly, the difficult procedure for changing the Danish constitution is a key barrier for beneficial reforms of the Danish system. However, the consequences must not be exaggerated, considering that a number of changes and improvements can be accomplished without a formal revision of the constitution. Recently estab­lished instruments for more effectively involving the parliament in the control of the executive could also point in that direction.

There is much to indicate that Denmark still endorses the legacy of Scandinavian Legal Realism, that is, the preference for the legislator and a scepticism towards active courts. Taking that point of departure, Denmark should follow the lead of Sweden and Finland and strengthen the ex ante control and the external advice in constitutional issues. Only by doing this can we secure the impact of our own constitution, prevent misuse of powers and keep constitutional issues alive in the academic world as well as in the public debate.