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Annual University Celebration

Celebratory Lecture 2022

Dear Minister,
Dear Rector,
Board, colleagues and collaboration partners of the University

And last but not least, dear students at the University of Southern Denmark.

I am honoured to receive the Research Dissemination Prize 2022. As researchers, we have both a right and a duty to communicate our work. I am honoured to have undertaken that task on behalf of the University of Southern Denmark, and I am grateful that the University is fulfilling its responsibility for disseminating information by awarding this prize.

Today, I want to address a constitutional issue that has been the subject of much public debate for almost two years. My starting point for this is to talk about the constitutional state.

In the 19th century, German jurisprudence put all its efforts into creating the ideal constitutional state. The ideal image of a Rechtstaat was 'a system of rules created by academic experts with the aim of eliminating all forms of arbitrary exercise of power.'

The constitutional state that was created is still a model for the German as well as the Danish legal tradition of control over the state, control over the administration and control over those in power.

The Danish constitutional state came into being within the framework of a free democratic constitution in which absolute monarchy and absolutism were replaced by a democracy based on Montesquieu's theory of the distribution of power.

If I were to highlight one important legal concept that is at the heart of the constitutional state, it would have to be the principle of legality.

As we understand the principle in Danish law, it includes, first of all, the requirement of a legal basis. To interfere in the legal rights of citizens - as we say in legal terms - requires a legal basis.

The principle of legality is most evident in criminal law, where the fundamental rule in Latin is nulla poena sine lege: 'no punishment without the rule of law.'

The state may not punish a citizen unless the state has a clear legal basis for doing so - in practice, criminal law.

For citizens, this therefore means that everything that is not forbidden - is allowed.

But conversely, for the state it means that everything the state is not allowed to do to the citizen - is forbidden.

The sanctity of property is one of the oldest human rights and is mentioned in the Declaration of the Rights of Man and of the Citizen from the French Revolution of 1789. It is obvious that any interference with the property of citizens, including the right to operate a business, requires a legal basis. This follows directly from Article 73 of the Danish Constitution, which states that property rights may only be interfered with in accordance with the law.

There is good reason to remember the principle of legality as we now approach the celebration day of democracy - the general election on Tuesday.

So why is this the case? What is the link between the requirement for a legal basis and democracy?

The answer to that question is obvious. According to Article 3 of the Constitution, the Parliament is part of the power that makes the law.

And it is Parliament that gives the Government the power or legal basis to act in a given area.

From the perspective of constitutional law, this is why the case of the Government's decision to cull all mink in Denmark, the case that directly led to calling the general election, is both a matter of deep principle - and an absolute legal scandal. It was a scandal that many civil servants in the central administration knew that the decision to cull all mink was illegal and that, according to the Mink Commission, this information never reached the Prime Minister.

For the mink case is not about a legal technicality. It is about the distribution of power and it is about the relationship between the Government and Parliament.

The central problem in the mink case is that it was Parliament - and not the Government - that should have decided that the mink should be killed.

The Prime Minister has repeatedly stated that she did not know that there was no legal basis.

At the same time, she has repeatedly maintained, most recently in the opening debate of the Danish Parliament, that the mink would have been killed in any case, legal basis or not. The Prime Minister refers in this connection to the fact that if she had known that a legal basis was lacking, she would have approached the parties in Parliament to obtain this legal basis by proposing a bill. Something similar had happened in March 2020, when the Danish Parliament amended the Epidemics Act to give the Minister of Health the power to close shops and restaurants, for example.

But this is where the chain breaks. For the Prime Minister's crucial defence in the mink case presupposes something beyond her control.

The Prime Minister assumes that Parliament would have passed a law allowing the culling of all mink and the abolition of the mink industry.

But then, hindsight is always 20/20. But from a constitutional law perspective, the explanation does not hold water.

As the situation developed in the days following the infamous press conference, it cannot reasonably be considered certain that a law would have been passed allowing the killing of all mink.

The panic about the cluster 5 variant and the vaccine risk was very quickly reduced.

And if Parliament had been involved and the Government had proposed a bill to cull all mink, it follows from our Constitution that a number of legal safeguards would have applied - not least the Constitution's Section 41 requirement for the bill's three readings.

The requirement for a thorough legislative process could well have meant that there would have been a proper debate on whether breeding animals should also be culled and whether it was really necessary to destroy the entire industry.

Even if the Prime Minister may have had support parties that could have secured the Government more than 90 mandates, it would not have been sufficient to ensure the law was passed if questions had been raised following a parliamentary debate, for example, about breeding animals.

Among other things, this is because a minority in Parliament, pursuant to Article 73 Paragraph 2 of the Constitution, could have taken advantage of the fact that it was a law of expropriation, so the implementation of the bill could have been postponed until after a general election.

This is where the problem lies in the mink case. And that is why the mink case is a downright legal scandal.

2021 was the year when, for the first time in 25 years - and for only the second time since 1910 - we witnessed an impeachment. The Court of Impeachment is a difficult entity to deal with. The decision to bring an impeachment case against Inger Støjberg was difficult for most parties, and regardless of how it all ended, the aftermath of the case leaves a muddy picture of a legal showdown.

After so many months of speculation and investigation, we reached the day of reckoning on 13 December 2021 when the Court of Impeachment's Chair, Supreme Court President Thomas Rørdam, read out the verdict against Støjberg with a sentence of 60 days' imprisonment. Støjberg is the first person ever to receive an unconditional prison sentence in the history of the Court of Impeachment - she was declared unworthy and expelled from Parliament. But some would say that Støjberg has risen like a phoenix. And that our politicians have a more than difficult relationship with everything to do with the Court of Impeachment is evident when it comes to handling the case of Inger Støjberg. In light of the Court's ruling and the fact that Inger Støjberg was declared unworthy to be a member of Parliament, there were probably some raised eyebrows when Støjberg, only weeks after having thrown away her leg irons, was able to appear as a guest at the Queen's Golden Jubilee, in the company of up to half of the judges who had convicted her. It is worth noting here that the decision to invite Støjberg to the table was not made by Her Majesty The Queen. The decision was no doubt taken in the Prime Minister's Office and it confirmed the general view among the political parties - that even though today only 9 months have passed since the Court's judgement, if Støjberg is elected again, a majority in Parliament will not declare her unworthy again under Article 30 of the Constitution.

The parliamentary elections have been marked by legal scandals on an unprecedented scale. The case of the Defence Intelligence Service is far from being fully elucidated and on that basis I find it difficult to draw any further conclusions on the case.

On the other hand, I think there is a reasonable chance that the mink case is now coming to an end.

Never say never, but I don't think a Court of Impeachment case will be brought against Mette Frederiksen for the Government's role in the mink affair. Along with a number of other law professors, on the basis of the Mink Commission's report I myself have come to the conclusion that it cannot be established with any certainty that Mette Frederiksen will be convicted of violating the Ministerial Responsibility Act by having acted with gross negligence when the order to kill all mink was given.

First, I do not think that critics of the Prime Minister's actions take sufficient account of the fact that this was a genuine emergency. That all the information in the case indicates that the Government was truly worried, was very afraid of the prospect of a new Wuhan. I do not agree with the Mink Commission that this fact should not be given weight in assessing liability.

Secondly, it was not so simple to find out that there was no legal basis. And I can say that with some certainty, because the day after the press conference, Thursday 5 November, I was called by Jyllands-Posten and asked to comment on whether the culling of all mink was an expropriation intervention. In my opinion, this could very well be a case of expropriation for the mink breeders. But I did not investigate in detail whether there was actually a legal basis for the intervention. I must honestly admit that I simply took it for granted that the necessary legal basis was present. In my view, it would have been a high - and indeed too high - standard of vigilance to be expected of ministers to have questioned their civil servants about the existence of a legal base. By the time the decision to cull all mink was taken, millions of mink had already been culled - legally. And when the Prime Minister - prior to the fateful decision - week after week had been able to follow both sick and healthy mink being killed within the safety zones, I find it difficult to see it as being particularly obvious for her to question the legal basis.

There is a lot to suggest that after the general election, a majority will press for a lawyer's assessment of the Prime Minister in the mink case. To this it must be said that the question of whether to institute impeachment proceedings is undisputedly a matter for Parliament. Whether to bring a case is first and foremost a political decision. And it is a decision that should not be left to lawyers. In contrast to the Instruction Commission's report on Støjberg, the conclusions of the Mink Commission in themselves provide far from any secure basis for believing that the Prime Minister will be convicted by the Court of Impeachment. And it should not be the more or less qualified guess of a random Copenhagen law firm that determines the position of Parliament in this case. Although, of course, lawyers can help politicians understand a report. But today the mink case has been examined as much as it can be. And also in relation to the question of impeachment, these words apply: no one above Parliament!

It was the universities in Germany in the 19th century that created the framework for the constitutional state we know today, with a crucial emphasis on the principle of legality and the basic principles of administrative law of objectivity and the exclusion of arbitrary decisions. I am deeply honoured to receive the Research Dissemination Prize for the work I have done to bring these ideals to the forefront of public debate and for this University's strong commitment to that end.

Have a very nice evening.
And have a great Annual Celebration!

Last Updated 03.11.2022