BRITISH NORTH AMERICA BILL (Hansard, 11 November 1960)

§ The Minister of State for Commonwealth Relations (Mr. C. J. M. Alport)

I beg to move, That the Bill be now read a Second time.

Addresses to Her Majesty the Queen have been adopted by both Houses of the Canadian Parliament designed to procure an amendment to the Canadian Constitution by the repeal of Section 99 of the British North America Act, 1867, and its replacement by the provisions contained in Clause 1 of the Bill.

Under Section 7 of the Statute of Westminster—which, incidentally, was included at the express request of Canada—power to amend the British North America Act, 1867, was left as the legislative responsibility of the United Kingdom Parliament. This was later modified by the British North America No. 2 Act, 1949, which provides that the Constitution should be capable of amendment by the Canadian Federal Parliament in relation to matters within the sole jurisdiction of that Parliament, but legislation by the United Kingdom Parliament is still necessary where the subject of the amendment is one which affects the interests both of the Federal Parliament and of the Provinces.

We are therefore to all intents and purposes acting in what is a formal capacity for the Canadian Parliament in a matter which is solely its concern. In accordance with long established precedent, we refrain from discussing the merits of a Bill submitted to us amending the British North America Acts when 1370 this has been introduced in consequence of Addresses to Her Majesty adopted by both Houses of the Canadian Parliament.

In case there should be any misunderstanding of the constitutional relationship between Canada and the United Kingdom because of the procedure we are now following—either here or in foreign countries—I think perhaps I should make it clear that the only reason why the present procedure is still being followed is because no Canadian Government have found it possible to devise a procedure acceptable to the Provinces for enabling the Constitution to be amended in Canada itself in cases where the rights of the Provinces are affected.

The procedure is in fact one which arises from the particular federal character of the Canadian Constitution, and has no bearing upon the constitutional relations between Canada and the United Kingdom, nor does it in any way detract from or affect the complete independence of Canada within the Commonwealth. The object of this Bill, as the House will see, is to provide that the judges of the Superior Courts of Canada shall in future retire at the age of 75 instead of holding office during good behaviour.

A textual Amendment will be moved during the Committee stage to alter 1951 to 1952 in Clause 2. The reason for this is that whereas 1951 is the date of the last British North America Act amendment Act passed through this Parliament, there was an amending Act passed through the Canadian Parliament in 1952, and the change which we will move during the Committee stage will recognise this fact.

§ Mr. H. A. Marquand (Middlesbrough, East)

The House will be very grateful to the Minister of State for his clear explanation of the reason for the Bill, and why it has to come before the United Kingdom Parliament. The occasion serves to remind us of a very great Act of Parliament—the British North America Act—which played a valuable part in uniting two nations in Canada and assisting in the creation of the one nation which we now have there. It is a pleasant occasion for us to be reminded of this, and we shall not object if, from time to time, the necessity arises again, so that we may think with 1371 pleasure of the great Dominion of Canada and her French- and English-speaking peoples, living in harmony and making a great international contribution to peace and understanding, and a rapid and admirable economic advance, which they share with the peoples of the underdeveloped nations by their generous gifts of technical assistance and financial aid.

We have become so accustomed to Canada's playing this important part in world affairs that we have almost forgotten the statutory relationship which still exists between this Parliament and the Canadian Parliament. Despite the power which evidently still remains to us, at least on paper, it is not for us to question whether Canadian judges should or should not retire at the age of 75. All I would say about that is that I hope—somewhat enviously—that they have a good pension upon which to retire.