Another Hope In EU Constitution Fight

August 29, 2009 at 4:35 pm
The history of democracy in Europe is a mixed bag. In Great Britain we have been (broadly) free for a thousand years (give or take a few decades, and the bit since 1997). Other countries have been free for about as long as it takes to soft-boil an egg. And still we look to places like Ireland to save us from throwing it all away with the EU Constitution.

Barking Spider had a good post about the upcoming referendum in Ireland the other day but as of yesterday another ray of hope came from the land of Hamlet (no, not the cigars).

The Eastern High Court in Denmark heard arguments yesterday on whether a case brought by 38 Danes against the prime and foreign ministers for failing to send the EU’s Lisbon Treaty to referendum has any legal merit. The petitioners claim that the Lisbon Treaty should have been sent to referendum under paragraph 20 of the Danish Constitution as they claim the treaty is a constitution in disguise and represents a devolution of sovereignty. Junior Counsel to the Treasury Peter Biering, who represents the two ministers, has obviously chosen to contest the relevance of the case, and legal counsel to the government has maintained that the Treaty did not require a referendum.

Given the decision by both parties to appeal the court’s decision on relevance, a court case is unlikely to be heard in the Eastern High Court on the core issue of the case until 2011 – provided that an eventual appeal in the Supreme Court finds the case to be relevant.

Paragraph 20 of the Danish Constitution reads as follows:
(1) Powers vested in the authorities of the Realm under this Constitutional Act may, to such extent as shall be provided by statute, be delegated to international authorities set up by mutual agreement with other states for the promotion of international rules of law and cooperation.

(2) For the enactment of a Bill dealing with the above, a majority of five-sixths of the members of the Folketing shall be required. If this majority is not obtained, whereas the majority required for the passing of ordinary Bills is obtained, and if the Government maintains it, the Bill shall be submitted to the electorate for approval or rejection in accordance with the rules for referenda laid down in section 42.

Should this give us hope? Well, yes and no. Courts don’t like this sort of thing so all over the world they have a habit of staying out of Consitutional affairs (except when Democrats appoint liberal activist judges in the US) so the ruling will probably go against them. The plus point is that it keeps the matter open. The Conservatives have made quite clear that if the Constitution isn’t passed everywhere before they get into power then we’ll get our referendum in the UK. If it is passed everywhere and is in force then they say we are stuck with it.

If the Danes keep the ball in play until after the next General Election then we’ll see an interesting test of Cameron’s promise to put the matter to the people. Are you up to it, Dave?