Government and constitution on the Faroe Islands

»The Faroe Islands are not a state, but a country with partial state quality.« This apt description by the Faroese politician and lawyer Edward Mitens was made in an exchange of views about the home rule in the Danish weekly law reports, Ugeskrift for Retsvæsen, in 1950, shortly after the home rule had come into force.

The Faroe Islands originally belonged to the Norwegian king. Over time, the Faroe Islands gradually became more closely associated with Denmark as the dominant of the two kingdoms in the dual Denmark-Norway monarchy in 1380‑1814. Regardless of actual association, the basis for the Faroe Islands’ international law affiliation with the Danish Realm should be found in article 4 of the peace treaty between Denmark and Sweden, signed in Kiel on 14 January 1814.

The Faroe Islands as part of the Danish Realm

However, the ultimate integration of the Faroe Islands into the Danish Realm did not happen until around the mid-1800s when Denmark adopted a democratic constitution. In contrast to the Danish counties, the Faroe Islands did not have an elected member in the Constituent Assembly of 1848‑49, but had a representative selected by the king. The Danish Constitution of 5 June 1849 was nevertheless proclaimed for the courts and put into force in the Faroe Islands between 1849 and 1850. It is unclear why the Faroese were not consulted on the matter, but it is often highlighted that, at the time, there was no public institution in the Faroe Islands to represent the views of the citizens. The Løgting was non-existent between 1816 and 1852, and there was no or only a weak public opinion.

Although the Danish Constitution had entered into force, the Faroese were not yet represented in the Danish parliament (the Rigsdag). In October 1850, the Danish minister for domestic affairs submitted a bill to the Danish Rigsdag for a separate act on Faroese representation in the Rigsdag. This bill caused a principled debate in the Danish Rigsdag about the position of the Faroe Islands in the Danish Realm. Leading figures such as A.S. Ørsted emphasised that the Faroe Islands, as an old autonomous legal jurisdiction, where first Norwegian and later Danish laws did not immediately become valid, should not be represented in the Danish Rigsdag without its inhabitants having had the opportunity to express themselves. Nevertheless, the bill was passed by a large majority in December 1850, after which the Faroe Islands were represented by two members, one for each of the two chambers of the Danish Rigsdag, the Folketing and the Landsting.

The Faroese Løgting was later restored in March 1852 and given the status of a county council, but with some far-reaching tasks, such as advisory assistance in the exercise of legislative power and the right to submit bills to the Rigsdag via the Danish Government.

Steps towards secession from Denmark

World War II led to a political separation of Denmark and the Faroe Islands with Germany’s occupation of Denmark and Great Britain’s occupation of the Faroe Islands. In the period 1940‑45, the Faroe Islands governed themselves de facto according to a temporary form of government where the legislative authority was shared between the Løgting and the chief administrative officer as the representative of the Danish Realm. The separation changed the Faroese attitude to the affiliation with the Danish Realm to such an extent that when ties were re-established in 1945 it was clear that changes had to be made.

Negotiations in Copenhagen from January to March 1946 between a delegation from the Løgting and the Danish Government did not lead to an agreement, so on 25 March 1946, the Danish Government presented a final proposal for a new system, which the Faroese Løgting chose to submit to the Faroese voters in a referendum on 14 September 1946. The theme of the referendum was formulated as either secession from Denmark or acceptance of the Danish Government’s proposal. The proposal for secession won a narrow majority with 5,660 votes, corresponding to 50.7 % of the valid votes, while the Danish Government’s proposal received 5,499 votes, corresponding to 49.3 %. The turnout was 67.5 %, 4.1 % of the votes were invalid.

Initial reactions in Denmark after the referendum was that the result should be respected, or that it was up to the Faroese Løgting to interpret the result itself. This perspective of the Danish prime minister and other leading Danish politicians changed in line with an increasingly conflicted development in the Løgting in the following days, and on 25 September 1946 the king (actually the Danish Government) dissolved the Løgting and called a new election. After the early election to the Løgting on 8 November 1946, the supporters of independence were in the minority in the Løgting. New negotiations were then initiated between the Danish Government and the newly elected Løgting on a future Faroese home rule.

The Home Rule Act

The result of the new negotiations was the Faroese Home Rule Act of 23 March 1948, which, after adoption by the Danish Rigsdag and the Faroese Løgting, entered into force on the 1st of April the same year.

The Home Rule Act remained in force unchanged until 2005, when it was de facto amended by Act No. 578 of 24 June 2005 on the Faroese Authorities’ Takeover of Affairs and Fields of Affairs (the Assumption Act) and Act No. 579 of 24th of June 2005 on the Conclusion of Agreements under International Law by the Government of the Faroes (the Foreign Policy Act). The Home Rule Act, however, remains in force unless otherwise expressly amended.

The new acts from 2005 should be seen in the light of the fact that, in 2000, the Faroese Government had negotiated with the Danish Government to establish an independent Faroese state, however, the negotiations had been futile. The 2005 acts can thus be seen as a kind of reconstruction of conditions.

In essence, the home rule system entails that the home rule holds the legislative and administrative authority in special affairs, while the central authorities of the Realm have the authority within policy areas that do not belong to the Faroese home rule, either as permanent affairs of joint interest, or because the Faroese home rule has not yet taken over these policy areas.

The Home Rule Act divided the different policy areas into a list A and a list B. According to section 2 of the act, affairs enumerated on list A were to be regarded, in principle, as special Faroese affairs, which both the home rule and the central authorities of the Realm could freely decide should be taken over. Under section 3 of the act, negotiations with the central authorities of the Realm were to determine whether and to what extent the policy areas enumerated on list B should be transferred as special Faroese affairs.

However, the distribution of authority between the home rule authorities and the central authorities of the Realm was significantly changed with the 2005 Assumption Act, where the double positive list was turned upside down. Subject to section 2(1) of the Assumption Act, the home rule may unilaterally determine when all affairs other than the permanent affairs of joint interest specified in section 1(2) of the act, can be transferred as a special affair. According to section 1(2) permanent affairs of joint interest are 1) The Constitution, 2) Citizenship, 3) The Supreme Court, 4) Foreign, security and defence policy and 5) Foreign exchange and monetary policy.

The formal starting point for the Kingdom of Denmark’s legislative authority in the Faroe Islands is that all acts of the Danish Parliamentary apply to the Faroe Islands, unless a reservation has been made in an act that it does not apply to the Faroe Islands. However, in areas which have been transferred to the home rule as special affairs, Danish legislation is interpreted in such a way that it does not apply to the Faroe Islands, even if no reservation has been made.

In reality, the consultation provision in section 7 of the Home Rule Act implies considerable Faroese independence in legislative affairs, also in affairs of joint interest. Proposals for acts which only concern the Faroe Islands must thus, according to the first sentence of section 7(1), be submitted to the home rule for consultation before they are tabled in the Danish Parliament. Similarly, acts that otherwise concern local Faroese matters, but which do not only concern the Faroe Islands, must, in accordance with the second sentence of section 7(1), be submitted to the home rule before they come into force in the Faroe Islands. In practice, the home rule has had almost all legislation that has been put into force in the Faroe Islands for consultation before it has entered into force in the Faroe Islands, also legislation in areas of law other than those covered by the consultation obligation in section 7.

If the home rule authorities want Danish legislation to apply in the Faroe Islands, the procedure under the Instrument of Government Act from 1995, sections 47 and 48, implies that the Løgting adopts a recommendation to the central authorities of the Realm about the intended regulation, following the same procedure as when adopting acts of the Faroese Parliament.

When an area is taken over as a special affair, it follows that the home rule also takes over the related expenses. However, section 9 of the Home Rule Act allows the home rule government, after further negotiations and within the framework of an act passed by the Danish Parliament, to take over the administration of affairs of joint interest, while the economic (from 1988 included in the block grant) and formal responsibility for the legislation remains with the Danish Realm.

The central authorities of the Realm have, as appears from the section 5(2) of the Home Rule Act, the authority in foreign affairs. However, according to section 8(3), the home rule has access to assert special Faroese interests in negotiations with foreign countries in trade and fisheries matters. In special Faroese cases, the central authorities of the Realm have also, subject to section 8(4), been able to authorise the home rule government to conduct direct negotiations with foreign countries, provided that a request has been made to this effect, that the negotiations are not in conflict with the interests of the Kingdom of Denmark, and that the Danish foreign service participates.

The foreign affairs area was also revised in 2005 with the previously mentioned Foreign Policy Act. The most significant change in relation to the Home Rule Act means that, under the Foreign Policy Act, the Faroese Government has the right to negotiate on behalf of the Realm, in contrast to before, where the Faroese Government could be authorised following a request with the participation of the foreign service.

Besides the above-mentioned acts, the Instrument of Government Act also has the potential to be among the laws that impact the Faroe Islands’ constitutional position in the Realm.

The Faroe Islands’ own administrative system is a matter specified on list A of the Home Rule Act and was taken over already in 1948. In accordance with this, an act was passed on the Faroe Islands’ administrative system in special Faroese affairs and a corresponding act on the administration of the Faroe Islands. These acts of 1948 were replaced in 1995 by the new comprehensive Instrument of Government Act.

Work on a Faroese Constitution

A Faroese constitution was part of the plan for an independent Faroese state, which the government coalition from May 1998 had on the table. A constitutional commission was set up early in 1999 charged with delivering a draft Faroese constitution by June 1st, 2000. For various reasons, this deadline could not be met, one being that Danish-Faroese independence negotiations in 2000 did not lead to any result. New deadlines were set and revised several times, and it was not until the 18th of December 2006 that the commission was able to submit a report with proposals for a Faroese constitution. By this time, plans for Faroese independence had been shelved for the time being, and the constitution had to some extent been developed to also become a project for those who did not support the plans for full Faroese independence, but who believed that a constitution could nevertheless be useful.

One of the key proposals in the report from 2006 was that the constitution should formulate what the Faroese people could reach agreement on in national terms, and that they should also reach agreement on procedures for what they could not agree on. It contained formulations such as »the Faroes and the Faroe Islands is one nation and one country«; the procedures that had to be followed if the Faroe Islands were to choose to become an independent state were therefore central.

However, the project stalled yet again in the period 2007‑10. However, a complete proposal for a Faroese constitution was presented to the Løgting in February 2010. In response to this, the Danish Ministry of Justice wrote a memo in June 2010 which questioned the proposal’s conformity with the Danish Constitution. After various attempts at presenting and representing the constitution, the project lost momentum yet again.

After being shelved in the period 2012‑15, the constitutional project was again given high priority in the government coalition between Tjóðveldi, Javnaðarflokkurin and the liberal party Framsókn in September 2015, and a proposal for a constitution was presented to the Løgting at the end of 2017. In its commencement provision, the proposal made a reference to the fact that the constitution would be administered in accordance with the existing constitutional scheme as long as a decision had not been made to establish the Faroe Islands as an independent state. This reference seems to have given the authorities assurance that the proposal for a constitution could not be interpreted as a kind of secession from the Realm.

The proposal was later referred to an ad hoc committee in the Løgting where it had to be reviewed and prepared for a referendum, which was to take place on the 25th of April 2018. However, the timetable could not be kept, the proposal lost momentum again and it has not since been revived.

The now shelved Faroese constitutional work illustrates that the Faroese constitutional position in the Danish Realm is a complicated subject which involves many different laws of a constitutional nature and also competing narratives and interpretations, both internally in the Faroe Islands and between Denmark and the Faroe Islands.

Further reading

• Agriculture on the Faroe Islands
• Bakkafrost
• Education and research on the Faroe Islands
• Energy supply on the Faroe Islands
• Health and care on the Faroe Islands
• Hiddenfjord
• Industry and labour market on the Faroe Islands
• Municipalities on the Faroe Islands
• Politics and plans on the Faroe Islands
• Population and housing on the Faroe Islands
• Restaurant KOKS
• Salmon farming on the Faroe Islands
• Salt on the Faroe Islands
• Shipping Company Varðin
• The fishing industry on the Faroe Islands
• Veltan
• Wind Turbines on the Faroe Islands

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