HC Deb 19 December 1980 vol 996 cc679-86

Question again proposed, that this House do now adjourn.

11.15 am
Mr. Michael Hamilton (Salisbury)

I am rather surprised that we should have reached the last day of the parliamentary year without having had the opportunity to debate the Canadian constitution. I am grateful to you, Mr. Speaker, for making it possible to do so this morning, although thanks to the welcome statement that we have had time is desperately short to consider such a major subject.

The House knows of the stated intention of the Canadian Prime Minister to revise the British North America Act. We are conscious that the troubles in our neighbour's garden are likely to spill into our own. I sense that we are not yet fully alerted to its implications. It appears that there is something of a family quarrel threatening, and I raise this issue in the hope that it may yet he averted. In a close-knit family, I feel that there are few problems that cannot be resolved behind closed doors. I am all for the use of quiet diplomacy. I have never been convinced of the merits of open government.

I first sailed to Canada at the early age of one. In the intervening years I have been back and back. I am conscious that many hon. Members have links and friendships with Canada. Ever since the famous Durham report in the last century, Canada has never been very far from our thoughts. We need no reminding that the Table in the centre of the Chamber is the gift of the peoples of Canada. I pay tribute to the hard-working Select Committee that is considering the issue. Its report should be in our hands this coming month. I believe that its guidance will be of great help to us all. If any hon. Members think of attending any of its proceedings, they will be mighty lucky to find a seat such is the throng and interest in its proceedings. We need the Committee's help. It is a desperately complex situation and few of us in this place claim to understand the British North America Net. Many of us are puzzled about the duties of the House, and all of us agree that getting out of the Empire business can be harder than getting in.

I am concerned on two grounds. They are quite distinct, and I should like to deal with them separately. I am concerned, first, lest damage be done to the good relations between this country and Canada and, secondly, lest our Government should find themselves isolated on the issue.

I shall take first relations with Canada. There is not a Member of this House who would not wish to see the British North America Act patriated. There is not an hon. Member who would not wish to see Canada given her own constitution. It is absurd that in this day and age a sovereign and independent country should in theory still have colonial status. The fault lies partly right back in 1867, when the federal pattern lacked a proper amending formula, and it also stems partly from historic differences within the borders of Canada. We should be only too delighted to be relieved at once of these final and technical trappings.

However, we look to be faced with an unenviable choice. Either we can please the federal Government in Ottawa, while alienating the provincial Governments, or we can refuse a request that touches upon Canada's independence. Neither is a course that we would choose. Above all, we must maintain impartiality in Canadian affairs. The difficulty is to be sure where the path of noninterference lies.

Westminster talks to Ottawa and Ottawa talks to Westminster. Those are the two sovereign Parliaments. Both are made up of Members democratically elected from all parts of Britain and Canada. That is the song that our Government are singing.

However, one thing is certain. If we hand over all power of amendment of the constitution to Ottawa, like it or not, that will be regarded by the provinces as a British betrayal. We whom live in this small island find it difficult to appreciate just how strong are regional feelings in a country the size of Canada. Canada is the size of Europe. Just as Europe has France, Spain, Turkey and Poland, so Canada has Nova Scotia, New Brunswick, Alberta and British Columbia.

We all agree that opinion polls are notoriously unreliable. In Canada they have veered this way and that on the issue. However, for what it is worth, in recent days a poll has shown that Canadians are divided on the issue 2:1 against their federal Government, whom they themselves recently elected, because of the strength of regional feeling.

The House knows that the legality of present plans is being challenged in the courts in Canada. The questions being put to the provincial appeal courts are the same as those that this British Parliament will have to answer. I therefore hope that the courts will be allowed to rule before we grapple with the points.

The controversy is providing the lawyers with a field day, and lawyers have to live. I am no lawyer, but it is my reading that over the years the convention has been that, when amendment is proposed that affects the balance between federal and provincial Governments, it has been subject to consensus first being reached within Canada. The nub of the argument lies there, and the point is highly contentious. It looks like presenting this House with a painful dilemma in the spring. Therefore, while yet there is time, I urge my right hon. Friend the Lord Privy Seal to do all in his power through the channels available to him to defuse the issue and to forestall what could be a bitter family quarrel. There never was a time when cohesion of the West was more important and there never was a situation in which wise counsel and moderation were more needed.

Time is running on, so I turn to the second of my fears—that the British Government could find themselves isolated on the issue. It is hazardous to a degree to give assurances to our friends in Canada at this early stage on the attitude likely to be adopted by our Parliament here in London. This House is never less predictable than when it comes to constitutional issues. It is all too possible to misread the mood of this House of Commons, and miscalculation is surprisingly easy. My right hon. Friend will remember how the attempt to reform the other place ran into the sand here. The Government thought one thing; Parliament thought another. Again, only last year, we had another example: additional powers for Scotland and Wales. We witnessed an astonishing miscalculation by the previous Administration, and it cost them very dear. Again, it was a constitutional issue; The Government thought one thing and Parliament another.

This subject, I accept, provides one of those occasions when a Back Bench Member can say things that cannot be easily said from the Front Bench. On these Benches we have a freedom that is denied to my right hon. Friend. Although there is a Salisbury in New Brunswick, my concern must be for Salisbury in Wiltshire, but my right hon. Friend has to think further afield and his responsibilities range wider.

I am grateful to my right hon. Friend for coming to the House this morning. I had planned to say more, but I want to hear what he has to say in the time allotted to us. On my first point, I hope that he will succeed in averting bitterness between ourselves and the oldest member of the Commonwealth. On my second point, I hope that he will find time to talk widely to his many friends in the House.

11.30 am
Mr. Michael English (Nottingham, West)

We all sympathise with the Lord Privy Seal and his colleagues in the discussions they have been having on this subject.

It is not up to us to decide what Canadian constitutional conventions are. They were perfectly well set out in a 1965 White Paper of the Canadian Government. That had an introduction by the then Prime Minister, Lester Pearson—a Liberal Prime Minister, so there is no question of any party differences inside Canada. It was written by Guy Favreau, the Minister of Justice in that Liberal Government, just after he had chaired a committee of all 10 provincial Attorneys-General. I do not think that there can be any more authoritative statement of Canadian constitutional conventions. Certainly, it is the one upon which personally I should be most inclined to rely. It is not for us to try to determine or invent what those conventions may be.

Of the four principles that Guy Favreau set out, three are relevant to this issue. The first is that we ought not to legislate on matters concerning the Canadian constitution unless we are requested to do so by the Canadian Parliament. It would appear from what is happening in Canada that the Canadian Parliament is being asked to make such a request to us. One of the most relevant questions is another of Guy Favreau's principles that no such request should be made without consulting the provinces, which has been done, and securing their agreement, which, it would appear, has not been.

I do not think that in advance of any request to us we can assume that a Canadian Government or Parliament will break the constitutional conventions of Canada. That might happen, but we in this House should not assume at this stage that it will. I hope that in the discussions and negotiations inside Canada all parties would wish to conform to the constitutional conventions. If they do, I am fairly certain that everyone in this country would wish to conform to the remaining constitutional convention, which is that we should enact what they request if the request is coming from the federal Parliament after the approval of the provinces has been secured.

The only question which might arise is if those constitutional conventions were not adhered to, but we cannot say at this stage what should happen then because it is not possible, when there is a set of conventions, to rely on a couple of them and assume that the third will be broken. If that is to be done, it must be a matter for the Canadian people.

There are two bodies in a federal State, both of which can claim to represent the people. One is the federal Parliament, which represents the people of Canada as we here at Westminster represent the people of the United Kingdom. But the 10 provincial legislatures also represent the people of Canada. If a majority of the federal Parliament disagrees with a majority of the provincial legislatures, representing another majority of the people of Canada, that places anyone outside Canada in a grave difficulty, in that representative democracy is producing two contradictory answers. It is not for us to solve that. If the Canadian Government believed that certain changes should take place, beyond the mere change of repealing section 7 of the Statute of Westminster 1931 and altering the British North America Act 1949, and in believing that disagreed with the provinces, it would be most difficult for this Parliament to resist a request from the Canadians if that request had been backed by a referendum of the people of Canada, possibly with majorities on the lines suggested in the proposed request to us. We should find grave difficulty in doing that.

It seems, therefore, that there are two courses of action that would enable this Parliament to assist Canada without interfering in its internal affairs. One is that the present law and conventions should be followed, in which case I hardly see how we could conceivably wish to break the convention that concerns us directly. The other might be described as a political solution which says "These conventions cannot be followed, but the people of Canada as a whole, the individual people, each of whom is a citizen of the federation and of a province, seek this. Will you in the United Kingdom refuse it?"

One circumstance that would cause great difficulty would be when neither the legal nor the political approach was adopted. If the Government of Canada chose to ask us to do something that was unconstitutional within the terms of Canadian conventions and that was not desired by the people of Canada as a whole, we would not in the circumstances be interfering in the internal affairs of Canada if we did what the people of that country desired.

11.38 am
The Lord Privy Seal (Sir Ian Gilmour)

My hon. Friend the Member for Salisbury (Mr. Hamilton) regretted or complained that there had not been a debate on these matters so far in this Session. He will be aware of the reason for that. The parliamentary timetable has been extremely, not to say excessively, crowded. Quite apart from the other possible reasons, there simply has not been time for such a debate. My hon. Friend has now done something to remedy the state of affairs of which he was complaining by introducing a short debate on Anglo-Canadian relations, a debate to which he has contributed in so distinguished a way. We are also grateful for the authoritative contribution of the hon. Member for Nottingham, West (Mr. English).

I cannot claim to know Canada anything like as well as my hon. Friend does. I have been there only once. I certainly gained some of the impressions that my hon. Friend has about the size and regional feelings of that country. The latter are no doubt due to the history of Canada, as well as to its enormous size. Flying over it, initially on my way to Alberta, I was told when we got to Newfoundland that we had travelled only half-way. That is an illustration of the great size of that country.

The Anglo-Canadian connection is still a close family one. My hon. Friend's phrase that it was a close-knit family fits well, although the family relationship continues to evolve. Some of the value of our relationship today lies in the context of our common membership of the Commonwealth and NATO and of the many international organisations within which we work together to achieve mutually agreed aims. The hon. Member for Nottingham, West talked about Mr. Lester Pearson, a most distinguished exponent of diplomacy, who did good service to many international organisations. The current relationship between Britain and Canada continues to be harmonious bilaterally, and we concert our efforts in the whole spectrum of multilateral activity in which we are jointly engaged.

We enjoy excellent relations with the federal Government of Canada and, as a result, we understand clearly the other's approach to international affairs. Our two Governments have co-operated closely in the course of the series of economic summits which have proved of such worth in enabling Western nations to co-ordinate their approach to the complex issues that face us today. Next year's summit, the seventh, is to take place in Ottawa. As my hon. Friend said so eloquently, our relationships are sustained by countless personal ties. I wish to stress this at the outset. There are no major differences of opinion between our two countries.

Canada remains one of our most important trading partners and continues to be a key source of raw materials for our industries. Last year we maintained our position as a major exporter to Canada, despite competition from elsewhere. Canada is our fourteenth largest export market—nine of the top 10 are European—and, bearing in mind that 70 per cent. of Canadian trade is with the United States, our share of its market is around 3 per cent., which is slightly larger than in 1978, which is not bad. We hope that that position will be maintained.

I come now to the question that dominated my hon. Friend's speech and also the speech of the hon. Member for Nottingham, West. The subject is of particular concern to the House. I wish mildly to take up one phrase used by. my hon. Friend, who talked about the colonial status of Canada. I know what he means, but it is inaccurate. I do not think that for many years Canada can be said to have had colonial status. The subject that we are discussing is anomalous in that respect. For many years, Canada has been a fully sovereign independent country. She is a founder member of the League of Nations. Even any theoretical elements, as opposed to real elements, of colonial status were swept away by the Statute of Westminster in 1931. Long before that, Canada was a fully-fledged sovereign Power.

Hon. Members will know that the set of Canadian proposals were laid before the Canadian Parliament in October. The Canadian Government secured a majority of 156 to 83 at the completion of the debate on those proposals in their House of Commons. The proposals are under consideration by a special joint committee of the Canadian Senate and House of Commons. The reporting date of that committee has been postponed from 9 December to 6 February. That shows that the proposals are attracting a great deal of interest. It is also true that they have come under considerable criticism from some quarters in Canada. I am told that about 400 bodies or individuals wish to give evidence before the committee. No doubt that explains the change in the date. Once the committee reports, parliamentary debate in Canada will follow. We do not know how long that process will take.

As my hon. Friend said, the matter has been carefully studied by our Select Committee on Foreign Affairs, which has done such sterling work since it was established. I do not have the advantage of having attended any of its hearings, as my hon. Friend has, and I do not know what its conclusions will be or whether I shall agree with them. I do not wish to anticipate its conclusions. We all appreciate the great effort that the Committee has made on this and other matters.

At the present time, neither the Parliament of Canada nor the legislatures of Canada's provinces can pass laws repealing, amending or altering the central provisions of the British North America Act 1964. To do so still requires an Act of the United Kingdom Parliament. That is what my hon. Friend meant by "colonial status".

However, by constitutional convention and by reason of Canada's sovereign status, the British Parliament cannot act to amend the Canadian constitution except when requested to do so by the Canadian authorities—normally in a joint address to the Queen by both Canadian Houses of Parliament—but it is bound to act in accordance with a proper request from the Canadian authorities and cannot refuse to do so. The British Parliament or Government may not look behind any federal request for amendment, including a request for patriation of the Canadian constitution.

My hon. Friend drew a distinction between Government and Parliament which is valid. He used as an example the attempt to reform another place. He reminded us that it had run into the sand. I do not need arty reminding of that, nor does the hon. Member for Nottingham, West, because we were part of the sand at that time. My hon. Friend also drew attention to the more recent event.

We have as yet received no request from the federal Government of Canada. It is possible that the text of the proposals, as it now stands, may be changed by the time any request is received. The hon. Member for Nottingham, West referred to that possibility. We do not know when the request to our Parliament, based on those proposals, will come. I do not see how I could conceivably start offering opinions on the substance of the proposals in such circumstances. My hon. Friend and the hon. Member for Nottingham, West were understanding when talking about their greater freedom to comment. It would be wrong for me, or any Government spokesman, to make remarks that inevitably would be construed in Canada as an interference in her internal affairs. The hon. Member for Nottingham, West strongly emphasised, by implication, that there can be no denying that the matter is at present a wholly Canadian one. No proposals have crossed the Atlantic.

My right hon. Friend the Prime Minister pointed out to the House on 9 December that the democratically elected Parliament of Canada is dealing with the matter, and, provided that the expected majority is received, it will be putting to this country a request for patriation in due course. My right hon. Friend said that when such a request is received from the Canadian Government we shall try to deal with it as expeditiously as possible and in accordance with precedent.

My right hon. Friend added that on 14 previous occasions the House had been asked to deal with requests from the federally elected Parliament of Canada. We have done so in accordance with well-established precedents, bearing in mind that we are an elected Parliament and the federal Parliament of Canada is a similar elected Parliament. When we receive a request, we shall try to deal with it as soon as we can.

I am grateful for the way that my hon. Friend and the hon. Member for Nottingham, West have approached the matter. We all agree that it is a delicate issue within Canada and that it would be wrong for the House to anticipate its response to a request for patriation. That would inevitably exacerbate the controversy within Canada and could not fail to affect our relations with the Canadian federal Government.

Our good relations bring mutual benefits and encourage co-ordination of our approaches in international fora. There are close family ties. The House would not wish those relations to be affected. We all know the difficulties of the matter and the restraints under which we are acting. I am grateful to my hon. Friend and the hon. Gentleman for what they said.