BRITISH NORTH AMERICA BILL [Lords]. (Hansard, 10 July 1940)

§ The Solicitor-General (Sir William Jowitt)
I beg to move, "That the Bill be now read a Second time."
This is a Bill to amend the British North America Act, 1867, and the necessity for its introduction arises in the following circumstances: In 1935 the Parliament of the Dominion of Canada passed a comprehensive Act to deal with unemployment insurance throughout the whole Dominion, but the validity of that Act was challenged in the Canadian courts on the ground that it was outside the powers of the Dominion Parliament to enact an Unemployment Insurance Act. The Canadian courts, affirmed in this decision by the Privy Council, came to the conclusion that that contention was well founded, and that this matter was outside the province of the Dominion Parliament. In consequence the Act was declared invalid. It therefore becomes necessary, if it is desired to deal comprehensively in Canada with the problem of unemployment insurance—and to deal with it on a nation-wide basis—to extend the powers of the Dominion Parliament.
This House will remember that the Statute of Westminster, which gave legal recognition to the fact that the Dominion of Canada had already obtained full sovereignty in its own affairs, expressly preserved the powers of the British North America Act. Therefore, as a matter of mere legal machinery, it is still necessary, until some better method is evolved for amendment of the British North America Act, for the extension of the Canadian powers to be passed by this Parliament. But our Parliament, in passing such legislation, is merely carrying out the wishes of the Dominion Parliament, and in that way the legal position is made to square with the constitutional position. Hence Members will see that the Preamble to this Bill recites the fact that the Senate and Commons of Canada in Parliament assembled have submitted an Address to His Majesty praying that His Majesty may graciously be pleased to cause a Bill to be laid before the Parliament of the United Kingdom. 1178 In accordance with these provisions we are therefore simply carrying out the wishes of the Canadian Parliament in passing this piece of legislation. Nothing further need be said, I think, by way of explanation. I would, however, add that when we come to the Committee stage—and we are asking the House to pass this Bill through all its stages forthwith—there is some slight manuscript Amendment to be moved, also corresponding to the wishes of the Dominion Parliament.

§ Mr. Ammon (Camberwell, North)
There are two points that I wish to raise on this Bill, one of which is probably covered by the manuscript Amendment referred to by the Solicitor-General. I imagine that a good many other Members of Parliament, like myself, were rather puzzled to find it necessary to come to this House with this Bill quoting the Act of 1867; because I thought that the Statute of Westminster rather set that aside and gave sovereign rights to Canada in all matters of legislation. If that is so, does that mean then that the Amendment which is to delete the parenthetical sentence is a recognition of the fact that Canada is sovereign, otherwise the whole of the proposed Bill seems to run counter to the Statute of Westminster? The other point that I wish to raise—and the Second Reading is the only opportunity to discuss what should be in the Bill—is in connection with unemployment insurance. I understand it is possible for people who are under the Unemployment Insurance Act in this country, should they go to the Dominions to carry out work there for a limited space of time, to have their unemployment insurance to cover them during their absence and until they return. I wonder whether this would not have been a very favourable opportunity to have sought ways and means to make the Unemployment Insurance Act operative in both countries. Would it not be possible to pass an Act to provide a reciprocal arrangement between the two countries whereby a man who has fully paid up his contributions could, if he subsequently went to work in Canada, carry his insurance over with him, thereby making unemployment insurance operative in both countries? I would ask the Solicitor-General to give consideration to this point in any subsequent legislation that might take place.

§ Sir Annesley Somerville (Windsor)
Continuing the point raised by the hon. Member for North Camberwell (Mr. Ammon), I would point out that one of the obstacles to settlement in Canada has obviously been the absence of unemployment insurance. The point which has been put to the Solicitor-General is very revelant, namely, how far does this Bill provide that unemployment insurance benefit which obtains in this country can be transferred, or made equivalent to similar benefits, in Canada?

§ Mr. Mander (Wolverhampton, East)
In this Bill we are concerned only with the Parliament of Canada, but, as a matter of interest, I would be obliged if the Solicitor-General would say whether the Provincial Canadian Parliaments are in agreement with the proposals submitted by the Dominion Parliament, and whether there is some surrender of powers on their behalf. It is not a matter which concerns us, but it would be interesting to know.

§ The Solicitor-General
I think there may be a little misapprehension about this matter, and I am very anxious to remove it. No one doubts for one moment that Canada is completely sovereign in her own house; but, equally, when we came to pass the Statute of Westminster, a Clause was inserted, at the request of Canada, Section 7, Sub-section (1) stating: Nothing in this Act shall be deemed to apply to the appeal, amendment or alteration of the British North America Act. The reason was this: The British North America Act, of course, had been working for a long time, and under it the Canadian Constitution was working and in fact working very well. The Canadian Government, therefore, desired to leave that piece of machinery, but the machinery under which we enact laws which affect Canada might easily lead to misconstruction. One might think that the Canadian Parliament was in some way subservient to ours, which is not the fact. The true position is that at the request of Canada this old machinery still survives until something better is thought of, but we square the legal with the constitutional position by passing these Acts only in the form that the Canadian Parliament 1180 require and at the request of the Canadian Parliament.
My justification to the House for this Bill—and it is important to observe this—is not on the merits of the proposal, which is a matter for the Canadian Parliament; if we were to embark upon that, we might trespass on what I conceive to be their constitutional position. The sole justification for this enactment is that we are doing in this way what the Parliament of Canada desires to do. The reason for the Amendment which I shall propose is not as the hon. Member for North Camberwell (Mr. Ammon) thought. It is simply this: In recent years in this Parliament the Parliamentary draftsman has got into the habit—a very convenient habit—of inserting in brackets a little clause. When, for instance, he refers to Section 91 of the British North America Act, 1867, he puts in brackets what the Section is all about, either because he thinks that Members of this House do not carry in their minds what Section 91 of that Act is—in which he is quite wrong—or because he thinks that if there is a Member who does not have that Section by heart, he would be careless enough not to go to the Library to look it up, in which also I am sure he is wrong. In Canada they do not give any such assistance, and in that this Bill when it becomes an Act will be deliberated upon by the courts of Canada and the Privy Council, if, indeed, any court has to consider it, the Canadian authorities not unnaturally desire that the form we adopt should be the form appropriate to Canada and not that appropriate to this country.
With regard to the question which the hon. Member for North Camberwell and the hon. Member for Windsor (Sir A. Somerville) asked, I am sure that their point will receive the attention of the authorities. In passing this Bill, we are merely carrying out the wishes of the Dominion Parliament in accordance with the constitutional position. It would be wrong for me at this stage to enter into any discussion of the merits of what might well be done by an interchange of views between the Dominion Parliament and our Parliament here. In reply to the hon. Member for East Wolverhampton (Mr. Mander), I do not know what the view of the Provincial Parliaments is. I know, however, that when the matter was before the Privy Council some of the Provincial 1181 Parliaments supported the Dominion Parliament. It is a sufficient justification for the Bill that we are morally bound to act on the ground that we have here the request of the Dominion Parliament and that we must operate the old machinery which has been left over at their request an accordance with their wishes.