BRITISH NORTH AMERICA BILL. [H.L.] (Hansard, 21 July 1943)

§ LORD TEMPLEMORE
My Lords, in the unavoidable absence of my noble friend the Leader of the House it falls to me to move the Second Reading of this Bill. I shall not keep your Lordships long in explaining it; my noble friend explained the reason for it, I think, in moving the First Reading yesterday. Section 8 of the British North America Act of 1867 required a census of the population of Canada to be taken in the year 1871 and every tenth year thereafter. In accordance with this provision, a census of the population was taken in the year 1941. Section 51 of the same Act provides that, on the completion of the census for any year, the representation of the Canadian Provinces in the House of Commons of Canada shall be readjusted in accordance with the provisions of that section. The Canadian Government and Parliament consider, however, that it is unnecessary, and indeed undesirable, for any change to be made in the representation of the Provinces in the House of Commons until after the cessation of hostilities. An Address has been presented to 678 the King by both Houses of the Canadian Parliament asking that the necessary legislative provision may be made, so as to postpone such redistribution in Canada until the termination of hostilities.
The need for legislation by the United Kingdom Parliament arises from the fact that no power of amendment in Canada is conferred by the Act of 1867. From time to time the question of the method of securing for Canada the power to amend its own Constitution has been discussed in Canada, but there has been no agreed conclusion on the subject, and at the time of the passage of the Statute of Westminster in 1931 an express clause, Section 7 (1), was included in the Statute, at the request of the Canadian Government, to take wholly out of the general powers conferred on the Parliament of Canada by the Statute the power to amend or repeal the British North America Act. The procedure, therefore, for amending the British North America Act remains as it was before the Statute of Westminster, and this procedure has for many years been the passage of legislation by the United Kingdom Parliament on the basis of an Address presented to the King by both Houses of the Dominion Parliament, such as has been presented in the present case.
The recitals and clauses of the Bill follow substantially the terms of the Address passed in the Canadian Parliament, and the recitals correspond closely with those adopted on the last occasion when similar legislation was passed here—namely, the British North America Act, 1940. As your Lordships will see, this is a simple Bill of one operative clause, and I do not think that I need say any more on this very urgent and important matter, I beg to move that the Bill be now read a second time.

§ LORD BARNBY
My Lords, my noble friend has repeated a point made by the noble Viscount, the Leader of the House, yesterday, when introducing the Bill, as to the need for urgency. My noble friend has just referred to the fact that this relates to the British North America Acts, 1867 to 1940, and he referred to the Statute of Westminster and to the reservations therein as to the powers under the British North America Acts. It is for that reason that, with the indulgence of your 679 Lordships, I rise to ask for guidance, not in the hope of getting any statement today, because I understand that the succeeding stages of this Bill are to be taken forthwith, but so that my noble friend may take note of this point, which I think that it is proper to raise at this stage of the Bill. There appears to be some doubt—and it is on this point that I seek guidance—as to the powers of the Provincial Legislatures in Canada to deal, under the Constitution as it now exists, and as it has existed since the passage of the revised legislation to which my noble friend has already referred, with the question of immigration into Canada from the United Kingdom. I raise this question because it is a matter on which there is wide interest in the country.
When I was in Canada last autumn, I was given to understand by a prominent member of the Provincial Legislature of Ontario, the Leader of the Opposition, that there is doubt about the position under the revised legislation of matters affecting immigration. The question is whether the revised legislation withdrew from the Provincial Legislatures the power which they have had of dealing with this matter independently of the Dominion Legislature. I hope that I have made my point clear. Although I imagine that it cannot be done during the passage of this Bill, I think it would be helpful if at some stage this position could be cleared up, and I ask my noble friend to take notice of the question and to give us some guidance.

§ THE LORD CHANCELLOR (VISCOUNT SIMON)
My Lords, perhaps I may be permitted briefly to answer my noble friend. He raises a question regarding the distribution of legislative power between the Provinces of Canada and the Dominion of Canada in connexion with the subject of immigration. It is not infrequently the case that questions do arise as to how the boundary is drawn between the powers of the Provincial Legislatures of Canada and the powers of the Dominion. The exclusive powers of the Provincial Legislatures are strictly defined in Section 92 of the British North America Act, while the powers of the Dominion are set out in a list in Section 91. There are also to be considered Sections 93 and 95. To a certain extent there is an overlapping power. Even if there were any difficulty 680 on the subject of legislation regarding immigration, of which I am not at the moment aware, it has, with great respect to my noble friend, nothing whatever to do with the proposal in this Bill. The proposal in this Bill is, as has been very clearly explained, a proposal put forward at the wish of the Dominion of Canada itself, that there should be a postponement in the redistribution of seats which normally follows as a result of a periodical census.
The Province of Quebec, as we know, has in some respects rather special features; it is always represented in the Dominion House of Commons by a fixed number of members. In order to provide against the effect of population changes, however, the British North America Act provides that, after each decennial census, while the Province of Quebec will retain the same number of members, namely 65, the number of members for the other Provinces shall be so adjusted as to correspond to the distribution of population. It is that which is the subject of this Bill and of the request to postpone redistribution, made by the Dominion Parliament, in which we willingly concur. But with great respect to my noble friend, though the distribution of legislative powers between Province and Dominion is a topic which often arises and is frequently dealt with in the Judicial Committee of the Privy Council in appeals which are heard there, the subject of the distribution of powers to legislate as to immigration is not in any way touched or dealt with in the present Bill.

§ LORD BARNBY
My Lords, with the indulgence of the House I should like to thank the noble and learned Viscount for his reply. He did admit that there was overlapping in the existing state of legislation. I referred to the case of the Province of Ontario not the Province of Quebec, and it was on that point that I raised the matter in the hope that, as it is not necessarily excluded as a subject of comment on the Second Reading, he might give some direction and guidance on the matter. At the present moment there seems doubt as to whether or not the Legislature of the Province of Ontario can itself deal with matters of immigration independently of the Dominion Legislature. For that reason I raise the matter on this, the first occasion, that reference to the Act has come before this House.

§ THE LORD CHANCELLOR
That is a matter for Canada and not for this House.