Danish Lessons

Civitas, 12 January 2011

On Tuesday, a group of Danish citizens were given the go-ahead to challenge the legality of Denmark’s ratification of the Lisbon Treaty. The UK government would be well advised to pay close attention to the proceedings as it finalises its European Union Bill.

The UK and Denmark have followed a similar approach to the EU (they both became EU members in 1973 and they both opted-out of the final stages of the EMU and kept their own currency). In 2009 the ratification of the Lisbon Treaty caused widespread unease across a number of EU member states, including with the citizens of Denmark and the UK.

But, there is one difference between the countries that yesterday’s proceedings made particularly noticeable – the UK is still battling to define its sovereignty transfers regarding the EU, whereas Denmark is a step ahead, with the transfer of national sovereignty protected under article 20 of the constitution. The latest court case will prove just how well protected.

Plans to hold a referendum in Denmark on the Constitution Treaty  were scrapped in 2005, after the Dutch and French ‘No’ votes, and in 2007 the Danish government decided that a referendum on the Lisbon Treaty (the reformed Constitution Treaty) wasn’t needed as there was no transfer of sovereignty. However, yesterday, the Danish Supreme Court unanimously decided that a group of Danish citizens can sue the Danish Prime Minister, Lars Løkke Rasmussen, for breaching the Danish constitution by ratifying the Lisbon Treaty without a referendum.

The leader of the plaintiffs, professor Ole Krarup, has spoken of his hope that the case will find the treaty has not been ratified in the requisite manner, thus the treaty is non–binding. He believes that, if the Court finds in their favour, there could still be a referendum on the Lisbon Treaty.

The Danish Supreme Court announced its decision on the same day that the UK Parliament debated the coalition government’s flagship European Union Bill. The bill promises a ‘referendum lock’ – a guarantee that any ‘significant’ future transfer of power from the UK to the EU will be subject to a UK referendum.

The UK foreign secretary, William Hague, recently referred to the current UK system as  ‘morally bankrupt’ ,with the Lisbon Treaty ‘rammed into law two years ago with no mandate of any kind from the people of this country.’ Although it was the Labour government who ratified the Lisbon Treaty, Prime Minister David Cameron has caused rifts in the Conservative Party by backing down on an election promise to hold a referendum on the Lisbon Treaty if the Conservatives got into power. Getting the EU Bill right is of paramount importance for David Cameron if he wants to restore public confidence in the UK government’s dealings with the EU, and to heal the divisions in his party.

However, the bill has  a number of loopholes  that still need closing. Open Europe has questioned whether the bill goes far enough, and if the choice of ‘significant’ in the wording means some power transfers could side-step a referendum. MP Bill Cash led a rebellion in the House of Commons yesterday, but his amendments were defeated by 314 to 39.

The court case rolling into motion in Denmark will be an interesting one to follow. The Danish Prime Minister insists he didn’t break the Danish constitution but if the Supreme Court was to rule in the plaintiffs favour, the consequences could be far reaching. David Cameron felt his ‘cast-iron’ guarantee for a referendum on the Lisbon Treaty was pointless once the treaty had been ratified by the governments of all 27 EU members. A Supreme Court decision annulling the Danish ratification could open a new window of opportunity.