[Please note: this is not a piece about referendums in general, and nor does it call into question my overall position as a referendum-sceptic. It relates to a very specific Danish case.]

The Danish Ministry of Justice, in the final page of this note (in Danish, PDF), has once more thrust the issue of referendums in Danish-EU relations back onto the political agenda. The judgment of the Ministry is that ratification of the Agreement on a Unified Patent Court [PDF] would be a transfer of sovereignty from Denmark to the European Union, meaning Article 20 of the Danish Constitution applies. This stipulates that any such transfer of sovereignty must be approved either by a super majority of 5/6 of the Danish parliament, the Folketing, or a referendum must be held. A summary of the constitutional implications can be found in Politiken in English here, and more about the whole issue of the Court and EU patents from Wikipedia here.

Prime Minister Helle Thorning Schmidt’s reaction to the Ministry’s opinion was rather predictable – that the Patent Court issue is so technical that a referendum should not be held, and parliament should ratify the agreement. Quotes from her, in Danish, from DR can be found here.

Thorning’s problem is that there are three parties in the Folketing that would oppose the ratification – the Danish People’s Party (22 seats), Liberal Alliance (9 seats) and the Red-Green Alliance (12 seats). Opposition from the People’s Party, and one of the other two, would be enough to prevent the 5/6 majority. So – surprise, surprise – it is the People’s Party who have been strongest demanding a referendum (here, in Danish), and the Liberal Alliance has made the same demand according to BT (here, in Danish).

So what should Thorning do?

She could, like Lars Løkke Rasmussen before her, try to deal with the People’s Party, giving them something in return for their support of the Patent Court. The problem is that her government was elected in large part to break the reliance that Lars Løkke Rasmussen’s previous government had on the People’s Party – dealing with them would look like a betrayal. Denmark could theoretically not ratify, and put itself in the same position as Italy and Spain and not be part of the Court, but as Thorning has rightly said, for an open, small economy with intellectually intensive industries like Denmark this latter option makes no sense.

So – like it or not – Thorning is likely to have to go down the route of holding a referendum about the Patent Court. This, if played right, could actually be an opportunity. This is because the Patent Court referendum could be bundled together with votes on two of Denmark’s three EU opt-outs – on the EU’s Common Security and Defence Policy, and Police and Judicial Cooperation in Criminal Matters. Thorning’s government said it would hold a referendum on these opt outs anyway, but in 2012 postponed a decision to do so until turbulence in the Eurozone decreased. The need to hold a vote on the Patent Court could therefore present the opportunity to vote on all three matters at the same time, in three separate questions on the ballot paper.

While I am no fan of referendums, surely going for a three-question referendum on the two opt outs and the Patent Court would be a better bet than having to deal with the Danish People’s Party?

[Note: other EU countries face similar issues with the Patent Court. Ireland will hold a referendum on the issue, as confirmed on 1st May, and could this issue even trigger the UK’s referendum lock?]