HL Deb 29 November 1960 vol 226 cc1042-4

4.57 p.m.

Order of the Day for the Second Reading read.


My Lords, this Bill, which comes to us from another place, provides that the British North America Acts, which embody the Canadian Constitution, may be amended so that Judges of the Superior Courts of Canada shall in future retire at the age of 75, instead of holding office during good behaviour. It has been introduced to comply with the request in Addresses to Her Majesty the Queen adopted by both Houses of the Canadian Parliament. Your Lordships may wonder why it is necessary for Parliament to pass legislation of this kind on behalf of Canada, when Canada was one of the Dominions, as they were formerly called, which by Statute of Westminster were given full powers to legislate on all matters affecting themselves without recourse to this Parliament.

When the British North America Act, 1867, which established the Dominion of Canada, was passed, it contained no provision for its amendment save by the United Kingdom Parliament, and, when from time to time amendments were desired in Canada it has been necessary for the Canadian Government and Parliament to ask us to take the necessary action. Such requests have invariably been complied with. Thus Canada remains the only Member of the Commonwealth which has not sole power to amend its Constitution. When the drafting of the Statute of Westminster was under consideration in 1930, the Canadian Government asked expressly that this position might be preserved, and the necessary provision was made in Section 7 of the Statute.

The restriction was later modified by the British North America (No. 2) Act, 1949, which provided that the Constitution should be capable of amendment by the Canadian Federal Parliament in relation to matters within the sole jurisdiction of that Parliament—that is to say, the Federal Parliament. But legislation by the United Kingdom Parliament is still necessary in the case of other matters. The only basic reason for this is that hitherto no Canadian Government has found it possible to devise a procedure, acceptable to the Provinces, for enabling the Constitution to be amended in Canada itself, when Provincial rights are at stake.

It was agreed, however, at a recent conference between the Federal and Provincial authorities that Canada should now work out a means of amending her Constitution single-handed. So it may be that, as suggested by Sir Alan Herbert in an article in yesterday's Times, when the centenary of the British North America Act occurs in 1967, the question will have been settled so far as Canada is concerned; and if we are asked to introduce the necessary legislation I am sure that Parliament will readily agree. But until we receive such a request it is not for us to raise any question about maintenance of the present procedure, which is entirely a Canadian matter. Accordingly I commend the Bill to Your Lordships and beg to move that it may receive a Second Reading.

Moved, That the Bill be now read 2ª.— (The Duke of Devonshire.)


My Lords, my noble friend, in moving the Second Reading, has alluded to the article by our friend, Sir Alan Herbert, which appeared in yesterday's Times. Sir Alan had at an earlier date brought what he thought on this subject to my notice, and I had mentioned it to my noble friend who has just moved this Second Reading. I am very glad to hear from what he said that the Canadian authorities are now considering the measure Sir Alan Herbert desired, and I am sure my noble friend's speech will be read with as much pleasure outside as the pleasure with which it has been heard in this House.

On Question, Bill read 2a: Committee negatived.