DANISH REFERENDA

Denmark's basic law (last amended in 1953 so that a woman could ascend the throne) provides for a referendum in certain situations. One of those is where sovereignty is ceded. Constitutional lawyers have held that the establishment of a European patent court involves a loss of sovereignty, so section 20 of the basic law comes into play. This does not automatically lead to a referendum, but the Parliamentary vote in favour of the new measure has to be passed by a super-majority of five sixths of all MP's for there not to be one. Since both the far-left Enhedslisten and far-right Danish People's Party are against the patent court, it was not possible for the bill to meet the super-majority test. Danes will, therefore, on Sunday both vote in the European elections and vote for or against the country's participation in the new patent court.

However, there is a further curiosity. The basic law also spells out what happens (as happened in this case) where there is a solid Parliamentary majority, but not a five sixths majority. If the referendum produces a majority in favour of the measure, then it is passed. But if the referendum produces a majority against the measure, it doesn't necessarily mean that the measure is dead. The no votes have to represent 30% of all eligible voters; which is a higher bar than a mere 50% of all people voting, whenever voter turnout is less than 60%.

What this means is that a measure can pass, even though there has been a referendum which produces a no vote (in the jargon, this is called a political no rather than a legal no), since the number of naysayers, though a majority, is not big enough. Given the fact that turnout in European elections is both low and falling over time, this outcome is quite possible this time. The monkey would then pass back to politicians, who would have to decide whether to heed the will of the people or heed the will of Parliament.

All of the major political parties are (of course) saying that they hope for a yes majority in the referendum, in which case the problem goes away. But if it doesn't, then discussions on Sunday evening could end up being quite interesting.

Walter Blotscher