The title of this thesis is “Delegation of constitutional powers – a legal analysis of what powers that can be delegated pursuant to section 20 of the Danish Constitution”.
Section 20 (1) of the Danish Constitution reads:
Powers vested in the authorities of the Realm under this Constitution 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.
The thesis conducts a study of which constitutional powers that can be delegated to international authorities pursuant to section 20 of the Constitution. According to traditional legal theory the powers that can be delegated to international authorities can be characterized as legislative, executive and judicial powers. However, there can also be delegated additional powers, such as the Danish Government’s power to enter into treaties with other states and international authorities.
As a starting point, the thesis examines the history of section 20 of the Constitution. Without section 20 in the Danish Constitution Denmark could only have made accession to treaties whereby powers vested in Danish authorities were delegated to international authorities, through an amendment of the Constitution. The bond between sections 19 and 20 of the Danish Constitution is also examined.
The thesis then conducts a closer examination of which constitutional powers that can be delegated to international authorities. It is assessed that a traditional interpretation of section 20 of the Constitution generally supports the traditional legal theory. However, it is also assessed that the preparatory work indicates that section 20 of the Constitution contains a qualitative limit. This limit is however difficult to define, as the preparatory work only makes a modest contribution to resolving the questions of doubt that may arise.
The thesis then conducts a closer examination of whether certain powers contained in the Constitution can be said to be “constitutionally organic” in the sense that they cannot be delegated to an international authority despite the fact that the powers based on a formal interpretation arguably belong to the authorities of the Realm.
It is assessed that it has not been the intention of the constitutional legislator to enable significant changes in the institutional framework for the Danish form of government, and that powers that deal with the internal affairs of state bodies are not obviously covered by the wording of section 20 of the Constitution. In addition, the assessment of the Supreme Court’s decision in the Maastricht case raises the assumption that a power cannot be delegated if it constitutes an essential element in the maintenance of a democratic form of government.
The thesis then examines and assesses the more detailed limit for the delegation of legislative powers. The Constitutional Legislator has not further defined what areas of legislation that can be delegated. The Constitution deals with some special areas of legislation, which is examined and assessed in detail. It is assessed that section 20 of the Constitution allows for the delegation of the power to expropriate and to lay down more detailed rules on the exercise of judicial power. On the contra-Side 280ry, it is assessed that the Danish Parliament and Government cannot be deprived in their entirety of their power to adopt the state budget, as the Constitution prescribes a special procedure which, inter alia, aims to ensure that the state government does not stall, and also aims to ensure a prior and subsequent parliamentary control over the state’s financial affairs. Therefore, section 20 of the Constitution only allows for a delegation of a partial budgetary power. It is further assessed that it is doubtful whether the power to lay down rules on the acquisition of Danish citizenship can be delegated to an international authority as the Constitutional Legislator has presumed for a parliamentary control of the acquisition hereof, and as the Constitution attaches significant democratic rights to persons who holds a Danish citizenship.
The thesis then examines and assesses the detailed limit for the delegation of executive powers. It is assessed that section 20 of the Constitution allows for the delegation of power to enter treaties, including in cases where the consent of the Danish Parliament would normally be required. On the contrary, it is considered that section 20 of the Constitution does not enable the legislator to delegate power to make increases and reductions of the territory of the Realm, as the Constitutional Legislature has presumed for a parliamentary control in this regard. In addition, it is assessed that section 20 of the Constitution allows for delegation of command powers over Danish military units, and that an international authority can be delegated power to use Danish military forces in the cases referred to in section 19 (2) of the Constitution without the need for prior parliamentary consent. It is considered, however, that there is much to suggest that it has not been the intention of the Constitutional Legislator to allow for delegation of command powers over Danish military forces for free use in armed attacks against foreign Side 281 states. Finally, it is assessed that section 20 of the Constitution allows for the delegation of the government’s power to mint coins and to pardon and grant amnesty.
The thesis lastly examines and assesses the detailed limit for delegation of judicial powers. It is assessed that section 20 of the Constitution allows for the delegation of judicial power to decide cases between private parties, and to otherwise impose penalties for violation of legal rules. In addition, it is assessed that there can be delegated judicial powers to carry out a legality check of administrative decisions made by Danish authorities. It is further assessed that judicial powers to intervene in the specifically protected rights in sections 71, 72 and 78 of the Constitution can be delegated, as the considerations behind the rules are not significantly undermined by a delegation to an international court. Finally, it is assessed that section 20 of the Constitution does not allow for the delegation of judicial power to review the substantive constitutionality of the legislation, as the power cannot be regarded as a power that is “vested in the authorities of the Realm under this Constitution Act”.