BRITISH NORTH AMERICA BILL. [H.L.] (Hansard, 22 July 1946)

§ THE SECRETARY OF STATE FOR DOMINION AFFAIRS (VISCOUNT ADDISON)
My Lords, in moving the Second Reading of this Bill, which we have before us at the request of the Canadian Government, I should explain to your Lordships that it comes to this House because under a clause in the Statute of Westminster the amendment of the North America Act providing, amongst other things, for the representation in the Canadian Houses of Parliament, was an excluded measure, and alterations therefore affecting that Act require the assent of this Parliament. An Address has therefore been presented to His Majesty by the Parliament of Canada praying that alterations in the representation in the Canadian House of Commons, as provided in the Bill, shall become effective, and, in order to make them effective, it is necessary to pass the Bill through the two United Kingdom Houses of Parliament.
The Bill deals with a matter entirely, of course, within the discretion and judgment of the Canadian Legislature, but by that simple enactment in the Statute of 696 Westminster this proceeding on our part is called for. Therefore I must ask your Lordships if you will be good enough—as the Canadian Government is anxious to get the proceedings terminated—to take all the stages of the Bill to-day. I should mention that by a typist's omission, entirely on our side, there is a line omitted after line 23 on page 2, and the words which will require to be inserted, in order to bring it into line with the Address as passed by the Canadian Legislature are "Number two hundred and fifty-four shall be reduced by the." Words to that effect will have to be inserted, by an Amendment which I shall ask your Lordships to accept in Committee. The omission is entirely due to an error in typing, which occurred somehow or other. I am sure that your Lordships will excuse it. I do not expect it will be the wish of anyone to enter into a discussion or controversy on the matter. I beg to move.
Moved, That the Bill be now read 2ª.—(Viscount Addison.)

VISCOUNT CRANBORNE
My Lords, I understand that this is really a purely formal Bill, which is required. In the circumstances, I do not propose to make any comment on it.

§ VISCOUNT BENNETT
My Lords, the noble Viscount who leads the House has referred to this as a constitutional amendment. In fact it is, but it is an amendment of a Statute passed by this Parliament in 1866. The question of the amendment of the Constitution of Canada has engaged the attention of legislators on a great many occasions. It was last formally considered in 1935 at a Dominion Provincial Conference, and in 1936 the law officers of Canada and the Provinces formulated a plan for the amendment of the Constitution. In the past there has been a sharp conflict between the Provinces and the Federal Parliament as to the extent to which the Provinces should be consulted when amendments are made to the Constitution. It was proposed at that time, first, that in matters affecting Canada as a whole and Canada only, there should be no consultation with the Provinces; secondly, that if more than one Province was affected by the proposed legislation the Provinces concerned should be consulted before any amendments 697 were made; thirdly, that if the proposed amendments concerned the Dominion and all the Provinces it should be approved by two-thirds of the Provinces with at least fifty-five per cent. of the population of Canada and, lastly, that unanimity was necessary with respect to any interference with minority rights.
When the Constitution was given to Canada in 1867, it was intended that the population of the Province of Quebec should be the determining factor with respect to Parliamentary representation, In fact, the Resolution upon which the Constitution was framed with respect to that matter says that for the purpose of such readjustment—that is, every ten years—Lower Canada shall always be assigned sixty-five members, and that representation of other parts of the Dominion should be arrived at by applying the unit of population of Quebec to the total population of Canada. This Amendment is an entire departure from that, and provides that the population of Canada shall be divided by 254 for the purpose of ascertaining the unit on which representation shall be made. The House of Commons originally consisted of 181 members; at the census of 1871 it was increased to 200; at the following census to 211; then to 215. At the next census the number was 213, and then there was a gradual increase up to 245, which is the present number of members in that House.
One of the factors that brought about confederation was the question of representation in Parliament of Ontario—that is, in Upper Canada. Mr. Alexander Mackenzie, who was afterwards Prime Minister of Canada, during the debates that took place, made it clear that his objection was not because of the disposition of moneys, or otherwise, but because, as he said, four men in Lower Canada are made the equal of five men in Upper Canada, and therefore there must be some readjustment of representation by population. That was done by seeking a unit from which they could make the distribution. That unit was Quebec. The number was fixed at sixty-five; and sixty-five, divided into the total population of Canada, made the quota which fixed the representation in the House of Commons, which rose, as I say, to 245, largely through the increased 698 representation that came to the Western Provinces and to British Columbia. The representation of Ontario at the time of the Confederation was eighty-two; that number rose to ninety-two and then fell to eighty-six. It subsequently dropped to eighty-two on the application of the rule I have mentioned.
This legislation proposes to depart entirely from the principle set by the fathers of Confederation. I make no observation in criticism of it, because I realize that this is not the place to criticize the legislation in question. We take it as it is. There is, however, one point to which I think attention should be directed, and that is that under the Statute of Westminster by Section 4 it is provided, in very specific language, that no Act passed by this Parliament shall have any effect in Canada or the other Dominions unless it is expressly declared in that Act that that: Dominion has requested, and consented to, the enactment thereof. This can be implied, but I submit it is desirable to comply with the provisions of the Statute of Westminster in order that it may be clear that this House and this Parliament assume no responsibility for the legislation, and that it is being passed at the request and with idle consent of the Parliament of Canada. That, of course, can be implied by reason of the address; but the Statute is explicit: that "No Act of Parliament of the United Kingdom passed after the commencement of this Act" shall apply to a Dominion. Therefore I suggest that the law officers should look into the matter and determine whether or not it should not be made clear that the provisions of Section 4 of the Statute of Westminster have been corn-plied with.
There has been a good deal of discussion about an amendment of the Constitution being a political measure." Canada is the only one of the Dominions in which a Party majority can amend the Constitution. They cannot amend it directly, but they do it indirectly, because we have agreed that we will consent to pass any legislation that they may petition to have passed by this Parliament. That is entirely at variance with the provisions that obtain, say, in Australia. In Australia there must be a majority of the States agreeing to the amendment of the Constitution, and after that there must be a majority by plebiscite of all the electors who have a right to vote for members 699 of the House of Representatives. In South Africa it is provided that to amend the Constitution not only must there be a majority of the two Chambers of the House in favour of it, but on a joint ballot of both Houses together two thirds of all the members must approve the amendment to the Constitution, which is then signed by the representative of the Sovereign.
Canada alone passes legislation amending the Constitution by a majority vote. As I save said, that has aroused a great deal of interest from time to time, and the Provinces have sometimes come to they conceived to be grievances. For instance in the early days of Confederation Nova Scotia came here with Mr. Howe, but in his biography it will be found that he thought he was treated very badly as he stood at the Bar of the House of Lords. Then there arose in British Columbia the difficulty about the building of the railway, and they also came here without success. This was followed by a delegation being sent here from Prince Edward Island, for the purpose of placing their grievance regarding communication with the mainland before the Imperial Parliament, and that failed. Then there came the case of British Columbia again. Mr. MacBride, the Provincial Premier, came here to appeal against the words "final and unalterable" regarding the adjustment of the subsidy paid to the Province by Canada. That was successful in the end, because it is agreed in this country that one Parliament cannot bind the hand of another. The words "final and unalterable" were dropped. From Western Australia there came a case in 1935. They sought to leave the Commonwealth, and by a two-thirds majority they asked the Parliament of the United Kingdom to intervene on their behalf. It was referred to a Committee of both Houses and finally they reported that the petition was "not proper to be received." It was said that nothing but the voice which represented Australia as a whole could bring about any action by the Imperial Parliament, a principle which is recognized and continued in the Statute of Westminster.
I have no comments to make at all upon the legislation, but I did in reading it find that paragraph three, to which the noble Viscount has just referred, is wholly lacking in sense as it stands, but with the 700 addition of the line he mentions it becomes understandable. The question is one solely for the Canadian people, but I do suggest that it might be well for the Government at the earliest opportunity to discuss with the Canadian authorities the question of an amendment to the British North America Act which will enable Canada to deal entirely with its constitutional changes, with such safeguards as might be desirable having regard to the fact that it is the only country at the moment in the Commonwealth in which a Party majority can amend the Constitution. But no, they cannot amend it; they can only ask that it be done by this Parliament, because what we are doing is merely amending the Statute of this Parliament. I once heard a very learned judge in the Privy Council say, "I suppose Parliament could repeal the British North America Act", to which the answer was "Yes". This Parliament could, if it so desired, repeal that Act, or any other Statute which is on the Statute Book for that matter.
The discussions are becoming rather acute with respect to the desirability of Canada enacting its own constitutional changes. I merely bring this matter to the attention of the Government because of the anxiety I have regarding observing the provisions of the Statute of Westminster and in order to direct attention to the fact that by our legislation we are changing the whole theory upon which the very vexed problem of representation by population engaged the attention of the fathers of Confederation. That is not a matter which concerns us; it is a matter solely within the jurisdiction of the Canadian people, but we shall have to accept the responsibility for enacting the legislation that did it. Therefore I suggest that the provisions of the Statute of Westminster should be observed and that it should be made clear that what was done by us was done at the request of, and with the consent of, the Canadian authorities.

§ VISCOUNT ADDISON
I can assure the noble Viscount that the whole case has been most carefully examined by our legal advisers, that it is completely in order and that the Petition addressed to His Majesty contained, of course, the whole terms of the Bill. As the noble Viscount says, it is within the authority and jurisdiction absolutely of the Canadian Houses of Parliament, and it is only 701 by reason of the fact that under Section 7 (1) of the Statute of Westminster the amendment or repeal of the British North America Act was excluded that this Bill needs to come before this House at all. I may say that I find there was only one Amendment proposed to the Bill as introduced, and that was defeated by 108 votes to 42, so that it represents the considered and overwhelming opinion of the Canadian Parliament. As the noble Viscount says, these are not matters for us, and it is for me to ask your Lordships to adopt this procedure as is required of us at the request of the Canadian Government under the provisions of the Statute of Westminster.

§ VISCOUNT ADDISON
My Lords, I beg to move that the House do now resolve itself into Committee on the Bill.