Renegotiation
An act of international lawlessness?
Ernst Albert
Mr Albert's article is published in line with this journal's policy of offering its readers a variety of
_arguments on controversial subjects, although it is, of course, opposed to the general view of The Npectator SLIPPose that a future Labour government with an absolute parliamentary majority were to introduce legislation which would grant Ulster independence; and that the Conservative oPposition were to say: "We shall not recognise this law as binding upon us, and if returned to Power we shall renegotiate the terms of secession. We are entitled to do so r because no Parliament can bind its successor." There would be a roar of laughter from the Labour nohes and from the ranks of the IRA and the LoYalists': because, obviously, once sovereignty over Northern Ireland was surrendered, Parliament would have taken an irreversible step, and no future Parliament would be able to reclaim the lost sovereignty. Yet, the Labour Party's policy of 'renegotiating' the terms of British accession to the European Community is based on this one contention that "no Parliament can bind its successor." The argument was first officially Put forward by Mr Wilson in the historic House Of Commons debate of October 28, 1971, when sixtY-nine Labour members voted with the Conservative government in favour of entry on the basis of the terms negotiated by Mr Heath's administration. The Wilson doctrine is an attempt to provide a fig leaf of respectability for an act of international lawlessness. Strangely enough, this extraordinary claim to a right to break treaty obligations has not received much attention in the 'great debate' about British membership. Since Mr Wilson has told us that membership of the Common Market will be one of the decisive issues in the impending election ,ainPaign, it is important that the nature and ct°,?sequences of this Wilson doctrine should be 'ullY debated and that the Labour Party should not be allowed to get away with obscuring what is really at stake, and narrowing the discussion to whether or not there should be a referendum (or new election) about the terms of the 'renegotiation.' In respect of British domestic law, it is true that at present there is a universal consensus about the fact that in a purely formal way no Parliament can bind its successor. The House of ,,Cornmons is in no way restricted. As Lord rlailsham recently put it in a TV interview, it could pass a law authorising people-to commit Murder. This legislative quasi-omnipotence may not have been dangerous in normal times when it was the popular belief that 1.;.e majority 'men-s would not wish to pass a dishonourable law. In a period of political tension like the present one, the potential dangers of adventurous legislation are considerable, although in recent months this fact has been Obscured by the actual limitations imposed on a minority government. With no written constitution, no Constitutional Court, and diminished
del ',a.TA aig powers of the House of Lords (which,
as mixed hereditary and increasingly nominated' second chamber, also lacks democratic authority) a House of Commons which alone determines its own rules, can easily be carried It lootild be appreciated if any readers who ,experrence "delays or difficulties in obtaining I 4 Spectator would contact and give details Barry Wimbledon, Circulation Manager, he Spectator, 99 Gower Street, London WC1E 6AE (01-387 3221).
away by blind passion.
Stilt, the fact remains that its omnipotence has not been challenged by any juridical authority. But it seems high time that this doctrine should be re-examined. As far as domestic legislation is concerned, things will almost certainly have to remain as they are. For instance, successive Parliaments will always be able to nationalise, denationalise, and renationalise ad nauseam any part of British industry. But when it comes to decisions in the external sphere, the doctrine of parliamentary omnipotence becomes an absurd fiction. This is illustrated not only by the hypothetical (but by no means altogether unlikely) example of granting independence to Ulster: since the end of the second world war, beginning with India, British sovereignty has been relinquished over a number of former colonies and other possessions. The House of Commons is formally able to pass a law withdrawing independence from, say, Uganda, but anyone suggesting that this should be done in order to put an end to General Amin's atrocities, would be advised to have his head examined.
The liquidation of the Empire has brought about a greater change in Britain's international status and condition than membership of the EEC. Why should the renunciation of part of British sovereignty due to EEC membership not be regarded as irreversible? Every treaty entails some loss of national sovereignty. Most treaties are concluded for a limited period, but, like the UN Charter, the Treaty of Rome and the Treaty of Accession are of indefinite duration and do not provide for unilateral withdrawal of a member. And the fact that Parliament could repeal the European Communities Act, is irrelevant under international law.
Of course, any country can break a treaty, just as a state or an individual can default on a debt. No one disputes that if a nation is unwilling to honour its international obligations, it can—treat any agreement as a 'scrap of paper.' Treaties can also lapse, if over a considerable period of time the signatories do not observe them. But no one could argue that after less than two Years of British EEC membership this situation has been reached.
To claim the right not to regard treaty obligations as binding, leads to international anarchy. This is what the dictators did between the two wars, and since then many countries have been condemned by Britain for doing the same.
It will not be possible in the foreseeable future to introduce constitutional 'reforms which would abolish Parliament's right under domestic law to repudiate treaty obligations — the process would be too complicated. But it is important that responsible politicians and lawyers should challenge the Wilson doctrine on political and moral grounds as being outdated because it has been eroded through long usage since Parliament has made so many irreversible decisions in the external sphere; dangerous, because it will incite other countries to . follow a bad example; and irreconcilable with national honour, if this term is still to mean anything.
Ernst Albert is the London correspondent of a number of German newspapers and periodicals, including the Nuernberger Zeitung and Aussenpolitik
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