TERMINATION OF POWER TO LEGISLATE FOR CANADA (Hansard, 3 March 1982)

Mr. J. Enoch Powell
I beg to move amendment No. 21, in page 2, line 17, leave out from "the" to "shall" and insert "commencement of this Act.".
I am not sure whether my amendment achieves my purpose, but Governments commonly are generous enough to answer a debate on the assumption that the amendment would achieve the intended result, and they direct their principal arguments to the case that the hon. Member moving the amendment intended. I am sure that that will be the case tonight.
My object is to distinguish the two separate things which the Committee is invited to do in the Bill, and to approve one of them and exclude the other. My purpose is to ensure that the bill patriates to Canada the right to make the constitutional and other law of Canada, removes the constitution from the statute book of this country and removes our hitherto retained right to legislate for Canada. That I describe in a single word—patriation.
The Bill also enacts a charter of rights and constitution for Canada which has not existed before. I believe that the Bill—and I am not alone in this in the Committee judging by the debates—should do the first of those two things and should not do the second.
From the early stages of our debates, I have asked two questions. I asked them again in the debate which has just been completed. When I heard the Lord Privy Seal's reply I was quite sure that he had still not understood what the questions were. I am sorry to say this in the Lord Privy Seal's absence, but I intend it to be complimentary. One is always in danger of being unfair to him by assuming that he understands things which he does not understand. Had he understood the questions, I should have accused him of deliberately avoiding answering them. But, listening to his speech, I was convinced that he had not grasped the basic questions, which not I alone but others want to ask about the Bill. I shall repeat them briefly.
First, if we did not pass any part of the Bill except that which patriates the constitution, or amends the Statute of Westminster so far as it reserves to this country power to legislate for Canada, could the Canadian Parliament itself pass the Bill? Secondly, can the Canadian Parliament amend this or any other Act either of this Parliament after 375 the Bill is passed or of the Canadian Parliament? Can the Canadian Parliament amend the Canadian constitution? Can it amend the contents of schedule B?
From the answers to those two questions follows the deduction as to what we should do with the Bill. If the Canadians could pass exactly this Bill themselves and amend it in any way that they like, there is no justification for our passing the Bill in this form, and the suspicion remains that we are being asked to do it only to convey a misunderstanding of the consequence of its being passed by us and handed over, instead of its being passed in the first place by the Canadian Parliament.
Although those questions were not appreciated by the Lord Privy Seal, despite efforts that have been made, the right hon. Gentleman has drawn our attention to the way in which the Canadian Parliament requested the Bill and in his explanation of the setting of that request has, in effect, answered them. He made it clear that the text was overwhelmingly passed by the federally elected Parliament of Canada and with the support of the vast majority of all the members of all the parties in Canada."—[Official Report, 23 February 1982; Vol. 18, c. 825.] We have been told over and over again that the contents of schedule B are what the Parliament of Canada wants, because it has textually passed it. That was the ground on which there was a debate on whether we could alter the wording at all.
If the Canadian Parliament is agreed upon the text of schedule B, and if henceforward the Canadian Parliament has the right—as I think is not denied—to legislate for Canada while we have no right to legislate for it, it follows that if we renounce our right to legislate for Canada and patriate that right to Canada the Canadians could give themselves this precise constitution and charter of rights if they so wished. What do they think they gain, and what is the advantage in having the Bill enacted by us and immediately taking it and saying that it is their Canadian constitution and nothing to do with the Parliament of the United Kingdom? We are bound to ask that question.
If the Canadians can do that, want to do that, claim the right to do that and are agreed upon it, why did they not do it? Why have they asked us to do it? Only one explanation occurs to me for such strange behaviour. Somehow the notion has been gained in some quarters in Canada that once the Bill has been passed by this Parliament it has an entrenchment, authority, validity and unamendability that it cannot have if it is passed by the Canadian Parliament.
I can see no other reason. Indeed, throughout our proceedings I have asked for reasons. Therefore, I am driven to the unpleasant conclusion that there has been a deception for the purpose of conveying a misleading impression—that the British Parliament can entrench the provisions, whereas the Canadian Parliament cannot. However, we know that that is not so. At the moment that it sent the Bill to us, the Canadian Parliament said that the purpose of the whole operation was that it was in accord with the status of Canada that Canadians be able to amend their Constitution in Canada in all respects". That means every jot and tittle of it. They can amend it. Therefore, they have told us that there is nothing that can be entrenched, because they will have the right to amend anything in the constitution.
I conclude that we have been misadvised in approaching in this way our undoubted duty to accede to 376 the wish of the Canadians to patriate their constitution and to have, henceforth, the exclusive right to legislate for Canada and no longer to have their fundamental constitution on our statute book. We should have done that in the simple straightforward manner of amending our law to give effect to that, but should not have joined to that the completely separate activity of passing a constitutional Act for Canada, that the Canadians can pass, are agreed upon and which, if they do not like it, they can amend. The purpose of my amendment is to separate the wheat from the chaff, or the sheep from the goats. Whether it does it or not, I do not know. It was the best that I could do with the Bill as it was drafted.

§ The Attorney-General (Sir Michael Havers)
My right hon. Friend the Lord Privy Seal and others have on so many occasions reminded the Committee about the request and consent convention that it would be almost an insult to the right hon. Member for Down, South (Mr. Powell) for me to go through it again. The right hon. Gentleman referred to a little ewe lamb—or was it separating the goats from the sheep?
The amendment would deny the United Kingdom Parliament the right to exercise its residual power to legislate in Canada for what is probably the short period between the giving of Royal Assent to the Canada Bill and the coming into force of the Constitution Act in Canada, which, pursuant to clause 58 of schedule B, would take place on a day to be fixed by proclamation, issued either by the Queen or by the governor-general under the Great Seal of Canada. That may be of little import. If that is not done, we shall have an amendment that will be incompatible with the request and consent, and that will create a vacuum for the short period—whatever time it may be—between Royal Assent and the coming into force of the Constitution Act in Canada.
It would be undesirable to create such a vacuum during which time there would be no legislature legally competent to exercise the residual role at present exercisable by the United Kingdom Parliament in the period before the coming into operation of Canada's new constitution.
We are discussing a distinction without much difference, but it has some importance. Accordingly. I ask the Committee to reject the amendment.

Mr. J. Enoch Powell
Will the Attorney-General address himself—whatever might be the deficiencies of my attempt to find a drafting which would separate the two legislative acts—to that point?

§ The Attorney-General
I have said all that is necessary to deal with the amendment.

Mr. J. Enoch Powell
We are confronted with the resolute refusal of the Government to explain the extraordinary proposition that they have submitted to the Committee, at the request of Canada, that we should conjoin two separate things—the repudiation for the future of the right to legislate for Canada, with which we all agree, and the creation here, instead of there, of a new Canadian constitution. If the Government are unwilling to answer that question and to give any explanation of the apparent absurdity of such a procedure, we are obliged to deduce that the Canadian Government, by inducing the Canadian Parliament to make this request in this form, were engaged in deceiving one or more important interests 377 in Canada about the result of that constitution being placed first on the statute book of Britain and then being patriated to Canada.
Such a deduction would be not inconsistent with a great deal that we have heard in the debate of the gestation of this legislation. We are faced with the unwillingness of the Government to come clean about the real significance of the request that they have received from Canada and adopted in presenting it in the form of legislation. To that degree the Government are responsible for whatever misunderstanding or deception arises out of our passing the Bill in this form.
11.30 pm
We are approaching the end of these proceedings. It is an unhappy event that we should part from a legislative responsibility that we exercised for our one remaining Dominion under a cloud of incomprehension and misunderstanding and the suspicion that we are being used as a tool to produce political results in Canada that could not have been produced without that form of deception.