UK, HL, “British North America Bill”, vol 161 (1980), cols 309-49
By: UK (House of Lords)
Citation: UK, HL, “British North America Bill“, vol 161 (1980), cols 309-49.
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Order of the Day for the Second Reading read.
LORD AMMON My Lords, I have it in command from His Majesty to acquaint the House that His Majesty places his prerogative and interest, so far as concerns the matters dealt with in the British North America Bill, at the disposal of Parliament.
In rising on behalf of my noble friend Lord Addison to move the Second Reading of this Bill, I imagine that it will not be out of place if I remind your Lordships that it has already been fully discussed in both the Canadian Houses of Parliament, and in another place in this country; and as recently as last month, practically all the points that are embodied in the Amendment were discussed in your Lordships’ House. The Bill is a short one of three clauses, the first giving the confirmation of the Terms of Union, 310 and the second setting forth the repeal of the Newfoundland Act of 1933. But the main matter for consideration by your Lordships, I expect, will be the Terms of Union, which form the Schedule to the Bill and which it is the object of the Bill to confirm. These Terms were negotiated in Ottawa in December, 1948, by representatives of Canada and Newfoundland, a majority of the people of Newfoundland having previously signified by a referendum their wish to enter into confederation with Canada. The Terms were afterwards debated by both Houses of the Canadian Parliament and, as the third Preamble to the Bill shows, the Parliament of Canada subsequently submitted an Address to His Majesty, praying that a Bill to confirm the Terms of Union might be laid before Parliament here. The Schedule to this Bill sets out those Terms.
Terms 4 and 5 provide representation for Newfoundland in the Senate and House of Commons of Canada. Terms 7 to 16 deal with the new Provincial Constitution. There will be a Lieutenant-Governor and a Legislative Assembly which must be called together within four months of the date of Union—that is to say, not later than July 31. The franchise will be extended to women over twenty-one years of age. Term 18 provides for the continuance in force of the Newfoundland laws in order to prevent the confusion which would otherwise arise if a new code of laws were to be introduced overnight. Term 22 recognises the special conditions of the Newfoundland fisheries. Terms 23 to 29 deal with financial matters. Provision is made for the payment by the Federal Government of certain statutory subsidies and of a transitional grant amounting over a twelve-year period to some 42,000,000 dollars. A Royal Commission will be appointed within eight years from the date of Union to review the position of the Province and to recommend whether further financial help should be granted. Terms 38 and 39 deal with the treatment of ex-Service men and of public servants. Term 47 deals with consequential income tax adjustments.
As your Lordships’ House will know, this Bill and the events which have led up to it have been the subject of criticism both in Newfoundland and in another place. It has been said that His Majesty’s 311 Government have shown themselves to be undemocratic in their treatment of Newfoundland. It is said that we should first have restored to Newfoundland her previous Constitution, leaving it to a Newfoundland Parliament to decide whether or not to accept the terms offered by Canada. As there have been many misconceptions about our attitude in this matter, I should like briefly to review the policy which we and our predecessors in office have consistently followed during the last few years. This policy has its foundation in the Newfoundland Act of 1933. In that year, as the result of the financial stress to which the Island had been subjected, a Royal Commission was appointed to inquire into the financial situation of the Island. The Royal Commission recommended that responsible government should be suspended and that the Island should be governed by a Commission of six appointed members, three of them from Newfoundland and three from this country, under the chairmanship of a Governor. These proposals were accepted by the Newfoundland Legislature, at whose request Parliament here passed the Act of 1933.
The fisheries were modernised, and the people of Newfoundland made a striking and substantial contribution to the war effort. In order to strengthen the bonds which already existed between our two peoples, His Majesty’s Government decided in the summer of 1943 to send an informal Parliamentary Goodwill Mission to Newfoundland. I had the honour of leading that Mission, and my three months’ tour of the Island has left with me many happy and varied memories of the staunch loyalty and courage of the Newfoundland people. On our return to this country, my colleagues, Sir Alan Herbert and Sir Derek Gunston, and I made our reports to the noble Marquess the Leader of the Opposition. Amongst the suggestions we made was one that means should be found in the not too distant future for the people of Newfoundland to decide on the form of government which they would like to see introduced at a later date.
With the end of the war in sight, the Government took up these suggestions and, after full and careful consideration, it was announced on December 11, 1945, by my noble friend Lord Addison, who now leads this House, that the Govern- 312 ment had decided that machinery should be established whereby the people of Newfoundland might choose their future form of government. That machinery included the election of a National Convention of Newfoundland whose task it would be to consider the financial and economic situation of the Island and, in the light of it, to make recommendations to His Majesty’s Government as to the forms of government best suited to the Island. This Convention assembled in St. John’s in the autumn of 1946. In May, 1947, they sent a delegation to this country to inquire what fiscal and other arrangements would be made in the event of the Convention deciding to recommend various forms of government. My noble friend, who was then Dominions Secretary, received this delegation and answered the questions which they put to him. Your Lordships may recall that he made a statement in this House on May 13, 1947, as to the outcome of those discussions.
A few weeks later the National Convention, of their own volition, elected a further delegation to visit Ottawa and to ask the Canadian Government the terms on which they would be prepared to admit Newfoundland into confederation. In November, 1947, Mr. Mackenzie King sent to the Governor of Newfoundland, for transmission to the National Convention, the terms which, in the Canadian Government’s view, constituted a fair and equitable basis for confederation. These terms were debated at great length by the National Convention, whose proceedings were broadcast daily throughout the Island. In January, 1948, however, when the Convention finally made their Report to His Majesty’s Government, they recommended only that the restoration of responsible government and the continuance of government by Commission should be placed before the people as alternative choices at the referendum. A proposal that confederation with Canada should be included in the ballot paper was defeated by 29 votes to 16.
His Majesty’s Government, with whom the final responsibility lay, considered these recommendations with the greatest care, and, after much reflection, decided that the issue of confederation should also be put before the people. The decision was conveyed to the Governor by my right honourable friend the 313 Secretary of State for Commonwealth Relations, in a despatch of March 2, to which full publicity was given. Perhaps I may be excused if I read one important passage from that despatch. It is as follows: His Majesty’s Government in the United Kingdom appreciate that there has been a feeling amongst some members of the Convention that the entry of Newfoundland into a confederation with Canada should only be arranged after direct negotiations between a local responsible Government and the Canadian Government. The terms offered by the Canadian Government represent, however, the result of a long discussion with a body of Newfoundlanders who were elected to the Convention, and the issues involved appear to have been sufficiently clarified to enable the people of Newfoundland to express an opinion as to whether Union with Canada would commend itself to them. In arriving at this decision, His Majesty’s Government were also influenced by the fact that there had been a strong minority vote in the Convention in favour of placing confederation on the ballot paper. To have omitted it would, in their view, have been tantamont to disenfranchising a considerable percentage of the people. The outcome of the subsequent referenda has shown how right that decision was. Events then took their course. The first referendum was held in June, 1948, the result in round figures being as follows: for continuation of Commission of Government, 22,000; for confederation, 64,000; for responsible government, 69,000. No one course received a majority over the other two combined. Thus by the terms of the Newfoundland Referendum Act of 1948, a further plebiscite was necessary.
I will quote a passage from Section 4 of the Act, which reads: If at a poll held under the provisions of this Act a majority of the votes cast in accordance with the provisions of this Act, and any regulations and orders made thereunder shall not be in favour of one of the forms of government appearing on the ballot paper, the forms of government which appeared on the ballot paper, with the exception of that form for which the smallest number of votes was cast, shall be submitted to the people on a ballot paper for a vote at a poll. That is the authority for the second referendum. The second referendum took place on July 22 of the same year. The result was as follows: Votes cast for responsible government, 71,000; for confederation, 78,000. It is important to add that of the former electoral districts, 314 18 out of 25 voted in favour of confederation, or only 7 out of 25 for responsible government. I think that is of real importance, and shows just what the balance of opinion of the country was. On July 30, Mr. Mackenzie King announced that the outcome of the second referendum showed, beyond all possibility of misunderstanding, that the people of Newfoundland had expressed their wish to enter into confederation. His Majesty’s Government concurred in that statement, and a delegation was thereupon appointed to proceed from Newfoundland to Ottawa to negotiate the final Terms of Union. This delegation had full and friendly discussion with the Canadian authorities, and the final Terms were signed on December 11 last. Such, my Lords, in outline, is the sequence of events leading to the introduction of this Bill into Parliament. It is firmly based, as I have said, on the Act of 1933, and on the statement made in the House by my noble friend on December 11, 1945.
May I now turn to the objections which have been voiced against the procedure which we are debating? First, it has been said that we were pledged by the Act of 1933 to restore responsible government as soon as Newfoundland was again self-supporting. In my view, the interpretation of the phrase “self-supporting” must always be open to debate. But that was only one of the conditions laid down in the Act. If your Lordships will look closely at the Schedule, you will see that Paragraph (g) reads as follows: It would be understood that as soon as the Island’s difficulties are overcome and the country is again self-supporting, responsible government, on request from the people of Newfoundland, would be restored. It is the words “on request” which are the key to the whole matter. Can critics of this Bill honestly say that there has been any such request from the people? Can they suggest any more democratic method of discovering the wishes of the people than by a plebiscite thrown open to universal adult suffrage? That was precisely the procedure which we adopted. The people had, in fact, not one but two chances of requesting the restoration of responsible government, but at neither referendum did they take this course. That alone, I thick, must dispose of the suggestion that the Government have acted in an undemocratic manner and have failed to consult the people as to their wishes.
315 Moreover, it will not have escaped your Lordships’ notice that the flow of petitions and protests from Newfoundland began not when it was announced that a National Convention would be set up, or when it was decided that confederation would be added to the ballot paper; it started only when the results of the second plebiscite were known. In other words, this opposition came from a Party which had expected victory, but which was defeated at the polls. That is a natural enough reaction. But had we submitted to, and acquiesced in, the burden of these petitions, we should have done nothing more nor less than accede to the wishes of the minority at the expense of the majority. Further, we should have acted in direct contradiction to the wishes of the Canadian Parliament, at whose request we are debating this Bill to-day.
It has also been suggested that we had no right to proceed other than by the British North America Act of 1867 or, alternatively, that we could not proceed at all with arrangements for confederation since that Act, under Section 146, provided that Union could be brought about under an Order in Council only as the result of an Address from the now non-existent Houses of Legislature of Newfoundland. But, as the Attorney-General said in another place on March 9, there is no real substance in this argument. In any case, Mr. St. Laurent has pointed out in the Canadian House of Commons that the procedure by way of Order in Council, provided for under the 1867 Act, is not appropriate to the present constitutional position of Canada, since the King, in respect of Canada, now exercises his Prerogative not on the advice of his Ministers in the United Kingdom but only on the advice of his Ministers in Canada. Quite apart from the fact that Section 146 of the 1867 Act was, in a sense, an enabling section, that is a view to which we here must obviously defer.
There is another point of contention. It is said that by virtue of the Statute of Westminster we have no right to legislate for Newfoundland except at the request of an elected Legislature, and that the whole procedure which we have been following is, therefore, ultra vires. This 316 need not detain us long. The plain fact is that the Legislature of Newfoundland, prior to its suspension, had never adopted the optional provisions of the Statute of Westminster. May I refer your Lordships to paragraph 48 of the Schedule to the present Bill, which puts that matter right by indicating that the Statute will apply under the procedure that is being suggested? To-day there is no Parliament of Newfoundland, and the Statute, therefore, has no present application to Newfoundland.
The last criticism with which I must detain your Lordships is the one which has caused most misgivings, even among those who favour the idea of confederation. No doubt, it will be dealt with, so far as the legal position of the matter is concerned, with greater knowledge and skill by the noble and learned Viscount who is to follow me. It is based on the argument that, since the right of appeal to the Privy Council has been granted to certain interests in Newfoundland who seek to restrain the Commission of Government from proceeding with arrangements for confederation, no further steps should be taken by Parliament here until that appeal has been disposed of. Sir Hartley Shawcross explained that, if it had been possible, His Majesty’s Government would have wished to await the decision of the Privy Council. But, as he said, it was not always possible for a sovereign Parliament to delay the passage of legislation when that legislation was the outcome of long thought out and consistently followed policy. Many of the matters raised in the appeal were irrelevant, and part of the appeal seems to be based on the erroneous impression that the Statute of Westminster applies to Newfoundland.
The major point of possible significance in the appeal is whether, as the appellants contend, this legislation, which we are now called upon to pass, would be ineffective in Newfoundland. His Majesty’s Government, for their part, are satisfied that this contention is without foundation. As the learned Attorney said, His Majesty’s Government, without in any way wishing to prejudice the hearing before the Judicial Committee, accept the clear judgment of the Newfoundland courts, including that of the Supreme Court of Appeal. I might say that in 317 dismissing the initial action in Newfoundland, the judge said: The action is based on fundamental errors of law and logic which are apparent on the face of the papers and which are fatal to it … logically, legally and practically it seems to me to be nonsense. When the case came on appeal before the full Supreme Court Bench in Newfoundland, it was dismissed without the Attorney-General being called upon to speak. To attempt now to put the clock back would not only cause us great embarrassment in our relations with His Majesty’s Government in Canada; it would bring consternation to the majority—a growing majority—of the people of Newfoundland who favour confederation.
In this connection, it may be interesting to your Lordships if I mention that I have received some communications from people in Newfoundland, in which they congratulate us on taking the step which we have taken. Amongst these documents there is a copy of a booklet called Among the Deep Sea Fishers, which is the organ of the International Grenfell Association, and which exercises considerable influence in the North of Newfoundland. There appears in this publication a letter from a lady dealing with the position of affairs as it was on July 22, the date of the second referendum in Newfoundland. She writes: But no ordinary date was July 22. It was final Referendum Day. Newfoundland was to make her choice between a return to responsible government and confederation with Canada. In that country, nothing can interfere with the stark reality of earning a living in a short summer. This is no time or place for the pre-election indignity of bill-boards, sound trucks or street corner blarings. But in the long still evenings, those who had radios never moved far away from them. Audience reaction to the speeches would have reflected the almost white-heat undercurrent in the Northern section. ‘The evening after its over;’ people said with confidence, ‘we’ll take time off to parade for the winning of confederation!’ That I venture to say was the general feeling afterwards of most of the ordinary people outside the two or three large towns. They were very keen for confederation. It would cause something approaching administrative chaos, both in Canada and in Newfoundland, where detailed and carefully thought out plans are now being put into operation for the division of Federal and Provincial services, for the readjustment of income tax 318 and so on, if an attempt were made to put back the clock.
I would appeal, therefore, to your Lordships to support this Bill, and I trust it will be passed without a Division. Its principles have received the support of every Party in the Parliament of Canada, and it is in the interests of all of us that nothing should be said this afternoon which souls’ help in stimulating bitterness and rivalry in Newfoundland. I would not like to close without paying some brief tribute to the successive Governors and members of the Commission of Government of Newfoundland. The Commission took office in 1934 in a period when the Island was at the lowest ebb of her history. The people were disillusioned, unemployment was rife, the economic situation was desperate and though financial assistance was given from this country this could meet only the most essential schemes of rehabilitation. Little by little the Commission of Government restored confidence, placed the public administration on a sound and permanent footing, increased revenues and improved the social services. That they were aided by the prosperity which war brought goes without suing, but their record is none the less a striking one. Hospitals, clinics and public institutions of all kinds have multiplied. Free and compulsory education has been introduced. The fisheries have been modernised, and trade generally has been stabilised. In a period of some fifteen years the general standard of living of the people of Newfoundland has improved out of recognition. I am sure that your Lordships will join with me in echoing this tribute to a body of men who have carried out a difficult and sometimes almost thankless task with a spirit of patience and enthusiasm.
My Lords, in conclusion may I express the hope that this Bill will bring fresh strength to the peoples of Newfoundland and Canada, with both of whom our fortunes are so closely linked? While there may be a slight feeling, perhaps, of sentimental melancholy that a country which has been closely connected with us for nearly 500 years and which has stood loyally by us at all times is going, probably, to lose its own separate independent identity, I personally look upon it as an opportunity for larger development and for a larger part to be played in the story of the British commonwealth 319 by Newfoundland, joined to her bigger brother on the other side. Therefore I recommend this Bill with confidence to your Lordships, and ask that you will give it a unanimous Second Reading.
Moved, That the Bill be now read 2a.—(Lord Ammon.)
VISCOUNT SIMON My Lords, we are grateful to the noble Lord, Lord Ammon, for giving us so clear an account of the Bill, and for putting before us the considerations which make the Government feel that it is right for us to give it a Second Reading without a Division. Obviously, it is a measure of great importance. To all those of us who keep in mind the wonderful story of the growth of British institutions in the Commonwealth overseas, the whole topic of this Bill is a subject of the deepest interest. What is so regrettable is that in certain quarters an impression has arisen that what is being done is not being done in the best way—even, indeed, an impression that the Bill involves some departure from true constitutional doctrine.
As the noble Lord has observed, the view is held in some quarters even that we are not proceeding in a democratic manner, or (to put it at its highest) that something like a breach of faith is involved. If that were so, it would give all of us the greatest possible concern. I do not take that view, though I know it is a view which is sincerely entertained in some quarters. It is expressed in very careful language in the Amendment which is to be moved by my noble friend Lord Sempill and which we shall be discussing shortly. And may I say that I am obliged to him for allowing me to intervene at this time, because before we come to any Amendment I wish to state as clearly as I can the reasons why, having looked at this complicated matter closely, I have reached the clear conclusion that the Bill is justified and that this criticism is not really well-founded.
If I may presume on your Lordships’ patience, I should like to tell the House why. I would not do so if the noble and learned Viscount the Lord Chancellor were here, because he would naturally be the person to explain to the House how this matter stands in point of constitutional law and practice; but somebody must do it, and I hope I may be 320 excused if I put before the House, without any sort of prejudice, the reason why I am confident that this criticism is ill-founded. If I am right—and we will see whether or not I can convince your Lordships—that will relieve some of the honest anxiety entertained, both here and elsewhere.
After studying the relevant documents, which are numerous and include the judgments that have been given in the Newfoundland Courts—because all these were given in public and I have them here—I may as well tell your Lordships at once that to my mind, from such experience and special training as I have, the conclusion presented to the House by the noble Lord opposite is unchallengeable, and the course that we are asked to follow is justified. Allow me to add, with great respect to all noble Lords, that nobody who is prepared to criticise or condemn ought to form a final judgment on this matter without first reading and studying the speech made by the Attorney-General in another place last Wednesday. If I may say so, it was a remarkable piece of reasoning, closely connected; and it dealt with these suggested difficulties in a clear and most convincing manner. The subject matter is to a certain extent technical, and on that I would ask for pardon. But that is not my fault; it is nobody’s fault. The objection taken is technical, too. And if we want to do justice here, as we all do, we must be prepared to spend a few minutes considering what is no doubt a rather complex and technical matter.
Four objections have been raised. I begin by stating the four, each in a single sentence. The first objection is this: It is said that confederation of Newfoundland with Canada can be effected only under Section 146 of the British North America Act of 1867. The second objection is that what is sought to be done by this Bill involves an infringement of the Statute of Westminster of 1931. The third is that in view of the terms on which responsible government was suspended in Newfoundland in 1934, what is now being done should be done only on a request from a legislative Assembly in Newfoundland—obviously this is a criticism of politics rather than of law, but none the less I think it can be dealt with quite conclusively. The fourth and last suggested difficulty (and it is one which has impressed a number 321 of people in this country) is that the present legislation should await the advice which may be tendered hereafter to His Majesty by the Judicial Committee of the Privy Council in an appeal which is at present pending from the Supreme Court of Newfoundland. I think I have stated clearly, and I hope accurately, the four objections raised. Let me deal, in a few sentences, with each of the four, because I believe there is a conclusive answer to every one.
As for the first objection, based on Section 146 of the British North America Act, 1867, as the noble Lord opposite has already indicated, there is nothing in it at all. Section 146 of the Act of 1867 is a section which enables the Sovereign by Order in Council, without any further Statute at all, to admit Newfoundland into the Canadian Confederation on a request from the Legislatures of the two countries. It cannot be even suggested that this is the only possible way in which such a fusion can take place. Section 146 provides a way of doing it without the necessity of any further Act of Parliament. Here we have an Act of Parliament, and there is absolutely no ground for suggesting seriously that we must proceed by the method prescribed in the Statute of 1867—otherwise there can never be any extension whatever of the Canadian Confederation. Even if that were the effect of the Act of 1867, which it is not, it would still be true that one Parliament cannot bind its successor, and it would be possible to carry this Bill now, whatever the section of the 1867 Act said. But the real point is that Section 146 is merely a short and convenient way of securing a fusion which can also be secured with greater elaboration by passing another Act of Parliament. And that is exactly what we are asked to do now. As was pointed out in another place, Parliament here has already, in the interval, passed a Statute which, notwithstanding the Act of 1867, altered the representation of Newfoundland in the Canadian Senate as it would have been under the Act of 1867 if federation of Newfoundland with Canada had come about. If I may presume to be dogmatic, there is no possible doubt about This point. It is a bad point, and we should hear no more about it.
The second objection is based on a reliance on Section 4 of a most important Statute, the Statute of Westminster, 1931. 322 I am sure that every one of your Lordships who understands how constitutional development has taken place in the Commonwealth, would never consent, even though it was within our strict legal power, to interfere by a side wind with the proper provisions of the Statute of Westminster, the very basis and foundation on which the. Commonwealth rests, so far as it consists of Dominions. What does Section 4 say?—there is nothing like hearing the words. At first sight this object on looks rather a good point, but as I shall show in one moment it is not a good point at all. Section 4 says: No Act of Parliament of the United Kingdom passed after the commencement of this Act shall extend, or shall be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented to, the enactment thereof. Then your Lordship; see the argument is this: “Here is the Bill which the Government have produced. You may examine it from end to end, and you will not find it expressly declared that Newfoundland has requested, or consented, to this enactment. Therefore, if you pursue this present measure, you are disregarding Section 4 of the Statute of Westminster.” Those who put forward that argument, unfortunately, have stopped reading the Act at Section 4, because Section 7 of the Act says that Section 4 is to have no application except to such Dominions as adopt it. Newfoundland has never adopted Section 4 of the Act. Therefore, so far as Newfoundland is concerned, the argument about Section 4 is completely worthless. Nobody who reads the Statute of Westminster from one end to the other, and applies its terms, can have any doubt about that. That consideration, I submit to the House, completely disposes, beyond any question, of that point.
I now come to the third point, which is that when we consider what were the circumstances in which responsible government was suspended in Newfoundland, we ought not to further the step now proposed, except on a request from the Legislature of Newfoundland. I know that this is a point which has impressed a number of careful and loyal people who, like all of us, would not willingly put their hands to anything which was other than completely justified and straightforward. It takes a 323 little longer to examine this argument, but the answer is just as complete. No doubt it is true that the suspension of the Legislature in Newfoundland was not intended to continue longer than was necessary. I do not for a moment suggest that the Legislature was abolished for ever; it was a temporary suspension. In its place, for the time being, the government of Newfoundland is carried on by the Governor, under the terms of new Letters Patent, with the advice of six advisers who form what is called the Commission. The idea was, as Lord Amulree’s Report proposed, that when the finances of Newfoundland so far improved that Newfoundland “became self-supporting” again, responsible government would be restored “on request from the people of Newfoundland.”
There are, therefore, two conditions which are to be fulfilled, and not one. The first condition is that Newfoundland’s finances should be so far improved that Newfoundland becomes self-supporting again; and the second, that there should be a request from the people of Newfoundland. I will not detain your Lordships in discussing whether or not it can be asserted with confidence at this moment that the finances of Newfoundland are restored. I recollect that point was dealt with very effectively by my noble friend Lord Rennell in an earlier debate. It is true that during the war the annual receipts in Newfoundland exceeded the annual expenditure, but if that was due to the special circumstances of the war, that is a very different thing from saying that if left to itself Newfoundland would henceforward be on a sound financial basis. Be that as it may, there is the second condition that it shall be on request from the people of Newfoundland. Can it be suggested that this request, which is one of the essential conditions, is to come from the Legislature of Newfoundland? That, of course, would be arguing in a circle. The request is: “Please restore our Legislature.” There would be no sense, therefore, in saying that the request must come from the Legislature. The request, as the document says in terms, is to come from the people of Newfoundland. I have no notion how that request could be more clearly expressed than by the use of a 324 plebiscite in which every adult in Newfoundland voted—universal adult suffrage.
Therefore, it is clear, if one follows the matter, that there is before us a request by a majority of the people of Newfoundland that the step should be taken of confederation with Canada. But there is no request, and there never has been, by any such majority to restore to Newfoundland its own Legislature. No one who traces the matter out can possibly arrive at any other conclusion. I will not delay to discuss how it came about that there were two plebiscites; the noble Lord opposite has explained it quite clearly. But to take the one that really matters, the second, what happened? The figures are not very large because the population of Newfoundland is not very large, 78,000 people voted for confederation with Canada, on a question posed to them for that very purpose, while 71,000 people voted for the restoration of the previous Newfoundland Government. That may not sound a very emphatic majority, but that is due to the circumstance that, when you have a plebiscite or a referendum, you add all the votes together to make a total to compare with all the votes added together on the other side. I may perhaps point out, either for the comfort or for the distress of honourable Members of another place, according to where they sit, that if that had been the method by which at the last General Election we decided what Government we should have, we should not have the blessings of a Socialist Government at this moment.
The matter can be put very simply if one remembers that, although you are conducting a plebiscite, you have as a matter of organisation to divide your area into electoral districts. In the case of this plebiscite Newfoundland was divided into twenty-five districts. In eighteen of those districts the majority was in favour of confederation with Canada, and in seven it was not. How anybody, in those circumstances, can say that there is anything in this third point passes my understanding. It is perfectly plain that, so far as that point is concerned, the verdict of a majority of the people of Newfoundland, on the precise issue, was that they wished to confederate with Canada; and there never was at either plebiscite a request by any 325 majority to return to their former system of isolated government.
I now come to the fourth and last objection. This is a point which has most disturbed many people who have thought over the matter. I am very far from saying that it is not a point worthy of careful consideration. It is said—and it is said truly—that there is an appeal now pending to the Judicial Committee of the Privy Council which might affect this matter and, therefore, it is wrong (perhaps not legally wrong, but morally and politically wrong) that we should take the step of carrying the present Bill until that matter had been finally disposed of judicially. I suppose that if I have a prejudice in these matters it is a prejudice in favour of settling these matters by recourse to the courts, though I do not recommend it to other people, except in cases of extreme necessity. But I have never come across a case in which the argument is so far-fetched as it is in the present case, and I will tell your Lordships why.
I have here the proceedings. Six gentlemen who are residents in Newfoundland started an action against the Governor of the Colony and his six advisers who form the Commission. They claimed that they ought to be entitled, by an appeal to the law courts, to get a decision which would result in establishing that the course proposed was what is called “unconstitutional” and, further, that they should be able to get orders from the court restraining the Governor and his advisers from taking steps for confederation and indicating that they ought to do something different. Do not let us exaggerate the powers which can be exercised by courts of law. Courts of law exist for the purpose of applying the law of the land to the facts of the case. They do not exist for the purpose of dictating to those who conduct a Government how they should govern or to a Legislation how it should legislate, or what policy they should pursue. The whole idea that, by a legal process in a court, you can proceed to determine these questions is, as it seems to me, quite fantastic. It certainly seemed very fantastic to the courts in Newfoundland which had the matter before them. I should inform your Lordships that what has been before the courts of Newfoundland is not a formulated case on the one side or the other, but an appli- 326 cation at the beginning of the proceedings to strike the whole claim out because it is, in lawyers’ language, “frivolous and vexatious.” We have an exactly similar process in the law of this country, and if somebody puts up a claim—I do not wish to speak disrespectfully—which is manifest nonsense, the Judges are not called upon solemnly to hear it, it may be for weeks or months; but when they have ascertained what is the nature of the case set up they are entitled to say: “This is a frivolous and vexatious action,” and may strike it out forthwith.
As a matter of fact, the Judges in Newfoundland examined each of the contentions with great care. I admire the way in which they have applied the constitutional law to the matter. They point out that there is nothing whatever in these allegations which any court of law could ever undertake to decide. Lest I should be thought to be speaking with undue freedom about contentions which, no doubt, are put forward with great earnestness, I would ask leave to read to the House one sentence from the Judgment of the learned Judge who first had the matter before him. I can assure the House that if you read the earlier part of the Judgment you will find that he discussed each question with the greatest care and precision. Having done that, he said: I have listened to counsel at some length, but this Statement of Claim is a dead horse, and flogging it will not bring it to life, or make any difference to their position. The action is based on fundamental errors of law and logic which are apparent on the face of the papers, and which are fatal to it no matter what counsel may say. Legally, logically and practically, it seems to me to be nonsense. Thereupon, the six residents of Newfoundland—who have no more right to make this sort of claim than any other resident of Newfoundland and which, on the most elementary principles of law, therefore, they should not make themselves but should get the spokesman for the public, the Attorney-General, to make—then appealed to the Celia of Appeal in Newfoundland. I have read all the Judgments of the Court of Appeal, and they are quite unanimous. These gentlemen appealed against the decision that their proceedings were frivolous and vexatious. They were listened to with great attention, and the Judgments are well worth reading because they deal with each point with great care and soberness. 327 But at the end of it all the Court of Appeal unanimously said: “The judge below is quite right,” and they never even called upon the defendants to say anything at all. They confirmed the dismissal of the whole proceedings as frivolous and vexatious.
Your Lordships therefore see that if, indeed, the appeal ever came to the Privy Council—and up to the present I am told that no case has been deposited there, though notice has been given—the Privy Council would not be deciding the merits of this matter at all; they would merely have the question before them of whether it was not manifestly a “frivolous and vexatious” proceeding. It is not for me, speaking here quite apart from any judicial function, to say what would happen. I am not pronouncing judgment. Being a fairly cautious lawyer, I say only that I cannot conceive any court taking any other view. Even if they did, the only result would be that the matter would have to begin all over again, in order that both sides might formulate this argument and that. I do assure your Lordships that there was never a more astounding effort to get a political question decided by a court of law than exists in this particular litigation.
Of course, the political question remains, and we are much more concerned with the political question than with any purely legal or technical question. The political question for us is this: Are we, the British Parliament, morally bound to hold our hand when we are requested to do this, both by the Parliament of Canada and by the vote of the majority of the inhabitants of Newfoundland, until there has been a restoration of the former self government in Newfoundland? If your Lordships have been good enough to follow me—and if I have stated the matter clearly—it is obvious that we are not so bound, because, amongst other things, the only way in which to find out whether the inhabitants of Newfoundland want to have their own local Parliament restored is by asking them to vote and say what they want. They have voted and they said: “We do not want our former Government, but we do want federation with Canada.”
328 There is one small point left with which I would like to deal, out of respect for the noble Lord, Lord Sempill, who has felt it his duty—and we respect him for it—to raise this question in the form of an Amendment. I look at his Amendment and I see that it contains a phrase which speaks of the “decisive rejection by the elected representatives of the people of the Island sitting in National Convention” of the proposal for Union with Canada. If that were accurate, it would be a point well worthy of consideration; but it is not accurate. What this National Convention did was this. It was asked to advise, just as a Committee of one House or the other might be asked to advise. It was an elected body, I agree. It actually paid a visit to Ottawa to ask, “What would you in Canada do for us if we did join up?” I believe it also paid a visit to this country. It was not a representative body, in the sense of having a power to decide anything at all. I think I can save time if I read a short passage from a statement by the judge which disposes of the matter in these words: In 1946, economic conditions having improved, the Newfoundland Government, with the approval of the Imperial Government, sought to ascertain public opinion as to the future form of government by assembling a National Convention of selected persons to discuss the matter. … These were selected by the Electoral Districts by an election process. (I use the words ‘selected persons’ advisedly. They were neither delegates nor representatives, but merely appointees to a debating body, having no powers save to recommend; and the Government was not bound to take their opinions.) This Convention, of its own motion, sent a Delegation to Canada to ascertain what terms, if any, might be available for confederation of Newfoundland with that Dominion. As a result of this visit on October 30, 1947, the then Prime Minister of Canada”— that was Mr. Mackenzie King— offered specific terms to the Governor of Newfoundland. The Convention voted by a majority against submitting these terms to the electorate; but the local Government and the Secretary of State in England, considering that the terms ought to be submitted to the people, rejected the advice of the Convention on that point. That is the whole story; and if your Lordships ask: “Where is the proof that the people of Newfoundland want to be fused with Canada and to form a Federation,” the answer is that they have been asked that specific question, and have voted by an absolute majority that that 329 is what they wish to do. I have risen really to discharge what is rather an unpleasant task—because no one likes to talk technicalities in this House. It is right, however, that your Lordships should know how this matter strikes one who has looked at it without prejudice, and who has some special reasons for being interested in the future of Newfoundland. I have no doubt about the matter. I think it right, and a duty to the House, that I should say with candour that I really have no doubt at all about it. If I have been able to say anything to relieve the minds of any noble Lords here, I am glad.
I should have hoped, my Lords, that we might have used this occasion for a rather different purpose. The noble Lord, Lord Ammon, was right when he said there was sentiment in this. Just consider this event in its historic perspective. As you go across the Central Lobby here, by that corridor which leads to the statue of Oliver Cromwell, you will see a fresco which depicts King Henry VII, in the year 1496, granting a Commission to John Cabot. Under that Commission, Cabot and his boy Sebastian perilously ventured across the Atlantic, with eighteen Bristol sailors, in a cockleshell of a boat, and landed on a foggy shore, which was called New Found Land. That place has been part of our pride ever since. Next September it will be 190 years since Wolfe, by his victory on the Plains of Abraham, secured Quebec for the British Crown. It is 110 years since Lord Durham, in his famous Report, when he was called to advise at a time of great confusion and tumult in British North America, pronounced the immortal proposition that the way to secure unity and content in the King’s Dominions is by trusting people, and not by trying to order exactly how they should live.
The Fathers of the Canadian Confederation met in Quebec in 1866. All that that Confederation consisted of then was a small portion of what we now call Canada—Quebec, Ontario, New Brunswick, Nova Scotia: that was all. But the fathers of Confederation had a vision, and their vision was that one day in the future the whole of British North America, from the Atlantic to the Pacific, would be included in allegiance to the Crown in a single great Federation. That 330 vision was embodied in Section 146 of the Act of 1867. The Colony of British Columbia already existed. It had not been established by settlers moving across the Continent, but had been populated by a people who went round by the Pacific and landed at Vancouver. Between British Columbia and what we then called Canada, was the barrier of the Rocky Mountains. There intervened an immense unorganised territory called Prince Rupert’s Land (because of the grant given by Charles II to Prince Rupert) and the North-West territories in which the old Hudson Bay Company had a monopoly of land. But these fathers of Confederation founded the Dominion of Canada. They cherished the idea that one day the whole of British North America would be included in the Dominion. British Columbia has come in, and Alberta, Manitoba and Saskatchewan, and Prince Edward Isle. At this moment there are nine Provinces in Canada. This Bill is going to make the tenth; it will complete the consummation of the vision which those early Fathers of Canada had in their minds and expressed in the Statute so long ago.
I would add this final word to our good friends in Newfoundland—a place that throughout the ages has supplied some of the best sailors to the British Navy, which has stood for this country through thick and thin, and whose people thus deserve the best we can do for them. I would say to them: Do not be deluded into supposing that you are losing your rights. You are going to be a Province of Canada—and some of us who have practised at the Bar know well what are the rights of a Province of Canada.
Section 92 of the British North America Act contains a list of the powers which the Legislature of a Province Of Canada has the exclusive right to exercise. And the executive powers correspond. At the same time, Newfoundland also comes under the wing of the Canadian Dominion and contributes to the legislature at Ottawa. Therefore, I cannot doubt, however sore feelings in some quarters may be at the moment, that the time will come when those who at present feel anxious will recognise that by this Bill a great benefit is being conferred on their children, and on their children’s children.
LORD SEMPILL My Lords, it was an honour for me to be invited by the noble and learned Viscount who has just sat down to give way to him, and I did so with considerable pleasure. I am sure that I have benefited a great deal from all that he has had to say. I wish I had taken the opportunity of consulting with my noble and learned friend beforehand in the drafting of the Amendment on which he had something to say. Your Lordships will remember that on February 9, before asking leave to withdraw my Motion on the present constitutional status of the Dominion of Newfoundland, I gave notice that I would take an early opportunity of presenting a Bill on the matter. I did so, and introduced a Bill entitled “An Act to restore self-Government to Newfoundland.” Your Lordships will remember that that Bill has already been accorded its First Reading in your Lordships’ House, and probably it will be no surprise to you to find that to-day an Amendment to the Motion for Second Reading, dealing with that same matter, is down in my name. I will endeavour to take up as little as possible of your Lordships’ time, but, as has been well stressed by the noble and learned Viscount who has just sat down, the matter at issue is a very serious one, affecting the future of Newfoundlanders, as grand a body of people as one could find anywhere, a people amongst whom I have been proud to work. I am sure, therefore, that your Lordships will bear with me for a short while, and I hope that many will support the plea that I submit, that the Bill be not read a Second time.
In the debate on Newfoundland which I was privileged to initiate in your Lordships’ House on February 9, my noble friend Lord Rennell stressed the advantages, as he saw them, that would accrue to Newfoundland when confederation with Canada was brought about. I propose to say little or nothing about that side of the case, since I am not fully informed on the many complex ins and outs of the matter. With respect, I suggest that it is not for your Lordships’ House to settle this question of confederation which, in my view, concerns only the Parliament of Canada and the Parliament of Newfoundland, when that has been set up again. My noble friend Lord Rennell, with his considerable business 332 knowledge, had much to say on February 9 on the advantages that would accrue, but I think he would not seek to justify the repudiation of a guarantee of a debenture issue if 43 per cent. (or even 53 per cent., putting it at its maximum), of the debenture holders had been “squared” to take something different from what they had been promised. I think Lord Rennell will be speaking later in this debate, and I shall be interested to hear his views in respect of that matter.
I did not move from my seat in the Gallery in another place, not long ago, during the Second Reading of the Bill now before your Lordships’ House. I have read with considerable care the interesting debates that took place on the Committee stage and Third Reading. At that time, or at least in the first debate, the acting Leader of the Opposition in another place, had a great deal to say. He remarked that, “We to-day are in rather an unusual position.” I venture to think, and it has been well stressed by the noble and learned Viscount who has just sat down, that the same may be said of your Lordships’ House. The right honourable gentleman, in finishing his interesting remarks in another place from which I have quoted, begged the Government to postpone “the operative date for federation”—I quote his actual words. This showed, clearly, that the anxiety in another place of the Junior Burgess for Oxford University, and those who supported him in a Motion declining to approve the Bill, was not confined to him and the five other honourable Members who supported that Motion.
The Secretary of State for Commonwealth Relations, and others who have spoken for His Majesty’s Government in another place, have laid great stress upon those two words, “on request,” about which the noble and learned Viscount had a lot to say, appearing in paragraph (g) of the extract from the Royal Commission’s Report, which is in the Schedule to the Act of 1933. The right honourable gentleman the Secretary of State stated that, had the words not appeared, there would be a strong case for saying that, when the Island was self-supporting, the form of government which had existed in 1933 must be restored, and that no other alternative was open. As your Lordships will recall, the setting up of the National Convention, a body elected by Newfoundlanders in 333 1946, gave them their first opportunity of making known their views and of voicing, should they so wish, this much discussed “request.” That they did so wish is very clear from the proceedings of the National Convention. It decided, by a substantial majority, that only two issues should appear on the referendum ballot paper—the continuation of the Commission of Government, or the restoration of responsible government. Yet, despite this, the Commission of Government was instructed by Whitehall, as was made clear in another place during the debate on this Bill, to solicit a vote for confederation with Canada. The Government of Newfoundland, as your Lordships are well aware, consists of seven Commissioners, of whom only three are Newfoundlanders.
VISCOUNT SIMON Surely it consists of six Commissioners and the Governor. The Governor is not a Commissioner.
LORD SEMPILL I accept the noble and learned Viscount’s correction of those figures. I thank him very much.
On the first referendum in June, 1948, a relative majority of votes was obtained for the restoration of responsible government. A similar result seems to have satisfied His Majesty’s Government in elections in Britain! Why, therefore, should Newfoundland be differently treated? On the second referendum, in July, 1948, 52 per cent. of the total votes cast were for confederation with Canada. This was 43 per cent. of the total number of registered voters. The first figure constitutes a 4.6 per cent. vote in favour of the surrender of sovereignty. Surely this does not convince your Lordships that here was a sufficient majority for so tremendous a change? The views so clearly expressed by Mr. Mackenzie King, when that right honourable gentleman was Prime Minister of Canada, are not met either. He said in the Parliament of Canada that the people of Newfoundland should indicate clearly and beyond all possibility of misunderstanding their will that Newfoundland should become a part of Canada. I cannot see in these figures an expression that is “beyond all possibility of misunderstanding,” and I submit that this slender majority of 4.6 per cent. does not warrant a change of the nature contemplated.
334 In the last few weeks I have been fortunate in rediscovering several friends with whom in years gone by I was proud to work in Newfoundland. As a result, I have refreshed my memory on one or two points. One of the first Commissioners was Mr. Thomas Lodge, appointed because of his wide experience of finance and administration. I worked with him in Newfoundland, and I discovered his whereabouts a week or two ago from a letter in The Times of March 3. In this letter Mr. Lodge pointed out that he and his colleagues on the Commission of Government—I quote from his letter: have declared times out of number, in public speeches and in private conversations, that once the Island was self-supporting its political independence would be restored. My Lords, I can well recollect several such occasions when statements of that nature were made, not only by Mr. Lodge but by other Members of the Commission of that time.
I take this opportunity, most gladly and from first-hand experience, of paying a sincere tribute to the splendid work done by the Commissioners, in particular the first appointed under Sir John Hope Simpson, of whom Mr. Lodge was one. As your Lordships are well aware, they were set the extremely difficult task of developing a new method in the administration of government. I am sure your Lordships will allow me to quote from an important letter just received from Mr. Lodge which has a bearing on this matter. He says: If ever there was a plain straightforward obligation, it was to restore the Island’s political independence once it became self-supporting. The Government’s case is that a 48 per cent. vote did not constitute a ‘request’ within the meaning of their original pledge. They seem to forget that their own tenure of office is based on a 48 per cert. vote of the electorate in 1945. The attitude of the Dominions Office to the whole problem of Newfoundland has been lamentable from the start. It is an open secret that the first reaction of the Government of the day to the Amulree Report was one of definite rejection. It was only the pressure of the Bank of England which made them accept responsibility for the Island’s debt and for setting up the Commission of Government. The Commission worked well enough for its first two years, under the chairmanship of that distinguished naval officer and administrator, that prince of diplomats, the Governor, the late Admiral Sir David Murray Anderson. He kept us as a reasonably united body and he supported us through thick and thin… The Dominions Office bitterly resented my efforts to rub their 335 official noses against the refractory facts of Newfoundland life. They heaved a sigh of relief when they got rid of me, and thereafter they saw to it that only safe, docile, civil or ex-civil servants should be Commissioners. Your Lordships will not be surprised that when arrangements were made for the Commission of Government to be set up, to help Newfoundland, prostrate by the world depression of 1931, as has already been pointed out, the honourable Mr. Alderdice, Prime Minister of Newfoundland in 1934, said: We thank His Majesty’s Government in the United Kingdom. … We trust implicitly in their honourable intentions, feeling confident that a full measure of responsible government will be restored to the Island when we have again been placed upon a self-supporting basis. He obviously spoke not only for his colleagues in the Cabinet but also for the people of Newfoundland. The intention of His Majesty’s Government was clear to them, as the honourable gentleman’s words show, and His Majesty’s representatives at that time on the Island, the Commissioners (of whom I have quoted from one), were constantly reminding them of the truth of the Prime Minister’s words.
If we consider this situation for a moment from the aspect of the public view in regard to this matter, as expressed in the organs of the Press, some of your Lordships will have noticed a leading article in Truth of February 18, headed “Betrayal of Newfoundland” which reads: Few more shocking breaches of faith have stained the honour of any British Government than the way in which our present rulers have gone back on the promise to restore responsible government to Newfoundland. Had that promise been kept, and had the elected government ‘opted’ for union with Canada, no objection to the proceedings could now be raised. The Attorney-General during the Committee stage on March 9 did not take the same view as that which the Secretary of State took on the Second Reading on March 2. The right honourable gentleman stated on the Second Reading: If the Privy Council do take a different view, and do so advise His Majesty, the position would not really be much worse than if we were to delay the present legislation. If the Privy Council did take that view we should at once accept it and we here, and Canada and Newfoundland, would have to start all over again. 336 That was the Attorney-General, speaking on the Committee stage. I plead with your Lordships very earnestly to restore self-government for Newfoundland and—her freedom regained—fto let her plan her own future by herself, or if she so wishes it, with Canada. I submit that that should be done. Several of us who sit in your Lordships’ House as elected Scots representatives, are descendants of pioneers concerned with the founding of Scotland’s great Colony, Nova Scotia, over three centuries ago, in the reign of James VI. That was a great venture, and it might be thought, that as one of those descendants, and therefore a Nova Scotian (and more recently a Canadian), I would be anxious to force this issue. I say most certainly that we Nova Scotians would welcome closer ties with Newfoundland, but only if such ties were conceived in a free way and provided that Newfoundland was not dragooned into it. If I were privileged to be one of the representatives of Nova Scotia sitting in the Parliament of Canada, though a cross-Bencher, I should certainly have followed the Leader of the Conservative Opposition when he led 74 people into the Lobby against the final Resolution when this matter was being debated in Canada.
In conclusion, My Lords, I would like to say just a word on the human side, which is so little considered to-day. At the time of the setting up of the first Commission of Government, one of the Newfoundlanders chosen was the late Mr. Howley; he served on the Commission of Government with Sir John Hope Simpson; Mr. Thomas Lodge and one or two others. He leaves one descendant, a daughter, a Mrs. Kathleen Fletcher, who is bringing up her three small daughters in St. John’s. She wrote to me a few days ago a letter which shows the feeling in Newfoundland. The letter reads: What everybody seems to overlook is the moral effect that this affair is having on the minds and hearts of so many in this country. ‘England has done this to us,’ they say. It is just as if some person whom you’ve loved and looked up to all your life, suddenly destroyed every ideal and illusion most dear to you. I know that this may sound farfetched, not to you but to some; but it’s as if I suddenly turned my three children—your god-daughter one of them—out on the street for some stranger to pick up and look after. My Lords, to the Motion that the Bill be now read a second time, I beg to move the Amendment in my name.
To leave out all the words after (“that”) and to insert— (“this House, without prejudice to the merits of the proposed union of the Dominion of Canada and Newfoundland, declines to give a Second Reading to a Bill for which the electors of Newfoundland have not expressed such a democratic demand as would warrant an irrevocable change in their constitutional status, which arises from the unilateral action of His Majesty’s Government in including in referenda held in Newfoundland in 1948 the question of union with Canada after its decisive rejection by the elected representatives of the people of the island sitting in National Convention, which is based on terms of union which have not been discussed and agreed by the people of Newfoundland or their democratic representatives, which violates the solemn pledge of His Majesty’s Government that self-government should be restored to Newfoundland as soon as it was economically self-supporting, and the constitutional legality of which is at present the subject of appeal to the Judicial Committee of the Privy Council.”)—(Lord Sempill.)
LORD RENNELL My Lords, in the course of the debate in your Lordships’ House in February, I had occasion to point to some of the advantages, as it seemed to me they were, of the proposed Union of Newfoundland with Canada, and both the noble and learned Viscount who has recently addressed your Lordships and the noble Lord, Lord Sempill, have been good enough to refer to what I said. To what I said then I have nothing to add, but I have one thing to subtract from it. At the conclusion of my remarks on that occasion, I said that there was a lingering doubt in my mind and, possibly, in the minds of many of your Lordships, in regard to the method which had been followed to bring about the situation which is now brought to a head by the British North America Bill. From the documents which I then had seen there was a doubt in my mind about the procedure. Since then, I have had the advantage, as I have no doubt all your Lordships have had, of reading the report of the speech made by the Attorney-General in another place, and, more lately, we have all heard the account given by the noble and learned Viscount, Lord Simon, of his views in regard to the procedure. I would like to say that, for my part, any lingering doubts which I then had with respect to the legality or the propriety of the 338 method followed have been entirely removed, and therefore I wish to subtract that remark from what I said on the former occasion.
It would be impertinent for me, lacking the background and the necessary training, to comment on the remarks of either the Attorney-General or of the noble and learned Viscount. But, as a layman, I must say that there is one point upon which I have been rather impressed. The Attorney-General referred to it only in passing, and, unless it escaped my notice, the noble and learned Viscount scarcely referred to it at all. It does seem to me significant, as a layman, however, that a case was started in court by certain gentlemen in Newfoundland only when the verdict of the plebiscite proved to be contrary to their expectation. They then—but only then—appear to have alleged that the procedure was illegal and improper. If the procedure was improper and illegal, it was equally improper and illegal whatever the verdict of the plebiscite. To a layman, that fact alone, I suggest, must damn the case, whatever the arguments that may be put forward and with which the noble and learned Viscount, Lord Simon, has so adequately dealt. That is another reason why I no longer feel any doubt, either about the desirability of what is being done or, indeed, upon the way in which it is being done.
I am sorry that the British North America Bill—or, as I have no doubt it will be, the British North America Act of 1948—should have been discussed otherwise than with the unanimous support of both Houses of Parliament in this country. The Bill is one which we in this country have been asked by the Government of Canada to introduce in order to comply with the provisions of the British North America Acts. We are doing so, and I would have wished that it had been a unanimous decision and that there had been no dispute. I do not think that the dispute in your Lordships’ House will prove to be serious, but it has, to some extent, detracted a little from the pleasure which most of us would have felt in seeing the old Dominion of Newfoundland taken care of for the future in what I regard as a most adequate and most generous way.
The Bill, upon which there has been really no comment at all in your Lordships’ 339 House but which is, I take it, the subject of our debate, contains a point in one clause upon which I would like the noble Viscount the Leader of the House to enlighten me. The first clause of the Bill reads: The Agreement containing Terms of Union between Canada and Newfoundland set out in the Schedule to this Act, is hereby confirmed … and the Terms of Union are set out in the Bill as a Schedule. In other words, that Schedule becomes part of the Bill, as Schedules do in other Bills. With respect, it would seem to me a cumbersome thing to have so long a Schedule of Terms incorporated in an Act, and it means, I take it, that the Schedule itself cannot be modified without an appropriate Act. There may be in many of the passages—and the Schedule is a very long document — certain matters which possibly in a short space of time may require some modification. I would like the noble Viscount to tell me whether such modification, if it were required, would mean yet a further British North America Act? I could have hoped that some easier method of modification might be found—that is, assuming that my supposition is correct. I conclude my remarks upon this Bill by saying only this. I, for one, am glad that this Bill has come, and has come quickly; that it provides a final answer to a very difficult problem; that it provides for the future of the people of Newfoundland and rounds off the great British North American Dominion in the way in which the Fathers of the Dominion in Canada and in this country had always hoped for, and which they have waited so long to see achieved.
VISCOUNT SWINTON My Lords, as the rejection of this Bill has been formally moved, I think that perhaps I ought to add a few words—and they will be only a very few words because the matter has already been thoroughly debated on a Motion in this House. In that debate the general opinion of the House on the merits of the case and as to the course which Parliament in this country ought to adopt was made very clear. To-day, we have had the matter further debated with the added advantage of an authoritative legal opinion on the legal aspects of the case. 340 I am certain we should all wish to be assured that what we do and the way we do it is in accord not only with the letter of the Constitution, in so far as the position is affirmed in the Statute of Westminster or other Acts, but is also in accord with the spirit of the constitutional relationship of the United Kingdom Parliament vis-à-vis the other countries of the Commonwealth.
The speech of the Attorney-General in another place and the speech delivered by the noble and learned Viscount, Lord Simon, to-day have made it absolutely plain that the method which is here proposed in no way runs counter either to the letter or the spirit of the Constitution. Indeed, I think it was right and proper that in this House, which is the Supreme Court of Law, as well as in the other House of Parliament, such an authoritative legal view should have been expressed. No one could have spoken with greater authority than the noble and learned Viscount, nor is there anyone whose legal opinion is likely to carry greater weight in Newfoundland, because I have no doubt the people of Newfoundland still have a lively and grateful recollection of the great success which the noble and learned Viscount, when he was a practising barrister, secured for them in the famous arbitration over Labrador. The legal position, therefore—and we laymen must take the legal position from the great lawyers—is absolutely clear.
I should like to say one word or two on the facts—the undisputed facts. We have the great advantage that not only is the law clear but also the facts on which we have to form an opinion do not admit of any dispute. Perhaps your Lordships will permit me to remind you of these undisputed facts. In December, 1945, His Majesty’s Government announced that they had decided to set up in Newfoundland an elected National Convention which would make recommendations to His Majesty’s Government as to possible forms of future government (and I stress this point) to be put before the people of Newfoundland at a national referendum. That was clearly announced to Parliament and at that time no single member of either House either criticised or took any exception to that pronouncement of policy and intention. Then, in May, 1947 (I learned this from 341 the debate; I did not know it before), a delegation from the National Convention which was set up came to the United Kingdom and sought assurances from the noble Viscount the Leader of the House, who was then the Secretary of State for the Dominions, that if a strong minority in the Convention desired a choice to be put in the referendum, His Majesty’s Government would agree to it. Without a formal commitment, the Secretary of State agreed that if there were a strong minority he would pay sympathetic attention to its claim to have its views put on the ballot paper.
The Convention voted against confederation with Canada by 29 votes to 16, But observe that it was always the anounced intention, agreed to by everybody, that the decision on what should be done was to be the decision of the people of, Newfoundland taken by referendum—which, on a perfectly clear and simple issue, is the only way in which the opinion of the people can be obtained—and not the decision of votes in the Convention. Faced with that situation, on March 2, 1948, three months before the first referendum was taken, His Majesty’s Government announced to Parliament that Union with Canada would be one of the alternatives which would be submitted on the referendum. Again it is fair to say that when that was announced, and the despatch published—I will not read again the important passage which the noble Lord has already read out in his speech—at that stage, after the vote in the Convention, nobody in either House of Parliament took exception to that course.
One other thing is clear, and in view of what the noble Lord, Lord Sempill, has said, I think it right to emphasise it. It is quite clear that the terms offered by the Canadian Government were perfectly well known to the electors who voted on the referendum. Canvassing took place—a great deal of canvassing by people who opposed the referendum, and I have no doubt a certain amount by the people who supported it. I think there is no doubt that the people of Newfoundland who cast their votes knew as well as any electorate ever can know what was the issue before them and what were the terms which were being offered. They voted for Union by 78,000 votes to 71,000. It is true that if you take 342 the result by electoral districts, the majority in favour was more formidable: 18 out of 25 electoral districts voted for Union. But we must take the result on the referendum, because a referendum is deliberately meant to be a counting of heads, and therefore we must take the figure of 78,000 to 71,000.
The noble Lord, Lord Sempill, has spoken of these electors in Newfoundland, I hope inadvertently but most unfairly, as having been “squared.” He said, in another period of his speech, that they had been “dragooned.” From my place here, I say this to the noble Lord, with respect, but I think I ought to say it: I do not think those are charges which should be made in a matter of this kind unless the noble Lord who makes them has satisfied himself that there is clear and unquestioned evidence by which his charges can be substantiated. I do not believe for one moment that the people of Newfoundland, who are a very independent people, were either “squared” or “dragooned.” They cast their votes upon the terms which were then before them, and they were far less favourable to the people of Newfoundland than the terms which were subsequently re-negotiated and agreed to by the Government of Canada and the Canadian Parliament and which now find their place in the Bill. Nobody will dispute the fact that the present terms are much more favourable. It really cannot be said that if a majority voted for Terms of Union which were less favourable, they would be likely to reject terms which are much more favourable. The Canadian Parliament have approved the Union on these terms.
It is said that we should now hold our hand. The noble and learned Viscount, Lord Simon, has mentioned to your Lordships the legal aspect of the argument that the Bill should be held up pending the appeal to the Privy Council. As the noble Lord, Lord Rennell, pointed out, that appeal was not instituted until the parties who are bringing the action knew which way the cat had jumped. If the cat had jumped the other way, there would have been no action. They are quite entitled to pursue any legal process at any stage, but if the legality of the constitutional process were being challenged, the more normal stage, surely, would have been when the decision of 343 the Government to take the referendum was made, just as we ought to have challenged it, if we objected, when the original announcement was made in 1945, and again in 1948, but nobody did, because we thought the Government were right in what they were doing. We have heard on the highest legal authority that there is no legal argument which can be founded on that basis. The inconvenience which would ensue if we did not pass this Bill now, before the close of the financial year in Canada, would be incalculable. We should be doing the greatest possible disservice to the people of Newfoundland and of Canada, and to the administration in both countries, if we delayed on what is really (I do not think I put it too highly, having heard Lord Simon and read the speech of the Attorney-General) a mere legal quibble.
The noble Lord has said that a constitutional change should not be made on so small a majority vote as 78,000 to 71,000. I agree, as a general principle, that it is desirable, even where nothing is written in a Statute, that a constitutional change of importance should, if possible, be carried by a considerable majority and command a large measure of support. I have heard it said—I would be interested to hear whether the noble Viscount has similar information—that since the new terms were published, and since the people in Newfoundland appreciate better what are the financial benefits which they will receive from this Union, and the great security which lies behind those financial benefits, public opinion in Newfoundland has become much stronger in favour than it was in July of last year when the referendum was taken on the original terms.
Be that as it may, what is the practical alternative before your Lordships? If you rejected this Bill, you would be deliberately imposing the will of a minority of the people of Newfoundland on the will of the majority, as expressed in the referendum. You would be deliberately refusing to do what the Canadian Parliament, through all their constitutional processes, having received the Newfoundland decision, have decided shall be done. The case has only to be stated in those terms to see how impossible it would be for the Parliament of the United Kingdom to do other than 344 endorse the expressed wish of the majority of the people of Newfoundland, confirmed and endorsed by the Canadian Parliament. That is the short simple issue before us to-day. There can be no possible doubt as to what is our plain duty: we must give effect to the decision of the majority of the people of Newfoundland. It was for them to decide. If I may say so (I said it in the previous debate) while the decision was for the people of Newfoundland, I am sure they have made a very wise decision in their own interests.
In conclusion, I would point out that it is just as misleading to talk about the people of Newfoundland sacrificing their freedom as it is to talk about them being “dragooned.” They do not sacrifice their freedom by becoming a full province of the great Dominion of Canada. When the noble Lord next crosses the Atlantic, let him go to the people of any of the provinces of Canada—people who are extremely jealous of their provincial rights—and ask them whether they think they are not free people. So far from giving up their freedom, the people of Newfoundland, under this Act, will find their freedom anew as one of the great historical provinces of Canada, and will be fortified financially and in every other way by their place in that great Dominion.
VISCOUNT ADDISON My Lords, in view of the character of this discussion it is not necessary for me to say very much in conclusion. However, I am sure the people of Newfoundland and of Canada will be grateful for the exposition of the law that has been given so forcibly in both Houses of Parliament. I think the noble and learned Viscount, Lord Simon—an ex-Lord Chancellor, with immense authority—has expounded the case here as no other member of the House could do with similar authority. I am sure that in so doing he has rendered a signal service to the case that is before US.
Meanwhile, I should like to make one or two simple observations on the general conduct of the case. It would be quite out of place for me to add anything to the legal considerations which have been put before your Lordships. We accept them. There is no question of Party in this matter. I was very glad 345 that the noble Viscount, Lord Swinton, took the noble Lord, Lord Sempill, to task for his use of such words as the people of Newfoundland having been “squared.” I wonder how in the world that could be done. I know something of these people. Like most peoples who live in isolated communities they are exceedingly independent-minded. By what species of psychological pressure these things, this “squaring” could be achieved I should be much interested to learn—as I think many political managers might be. I do not think it is a psychological possibility for any Party to dragoon these honest fishermen and their wives and families—as the noble Lord seems to suggest, to their discredit, that they could be dragooned. They will not thank him for that compliment, I am sure. I will not say any more on this point, because the noble Viscount, Lord Swinton, dealt very adequately with it. But the noble Lord really should not say that sort of thing. Moreover, we never heard anything of this kind until after the result of the second referendum to which I will refer in a moment.
So far as I can with short notice, I should like to answer the question of the noble Lord, Lord Rennell, who asked: If any alteration were made in this, would it require further reference to this Parliament? I am advised at present that under the British North America Act it would. Now, let me say a word about the conduct of this case because, as is well known, I was very largely responsible. In the first place, nothing has been concealed from the very beginning. This House was informed as early as possible of what was in contemplation, and it was informed as soon as possible of what had been recommended at the different stages. The noble Viscount, Lord Swinton, said that we heard no objection at any of these stages, and quite frankly I do not see how there could have been objections. The deputation from the Convention came over here, and we had long and friendly discussions on financial issues and on the way in which the opinion of the people should be ascertained. It was in fact agreed, and statements were made in this House, that there were to be three questiorts—namely, continuation of the Commission Government, responsible government, or federation with Canada. Lf the three questions were submitted to 346 a referendum and no one of them obtained the predominant support of the people, then there was to be a second referendum on those two which, on the first referendum, emerged as having the most support. There was never any question at all at this stage, either in this House, or even in Newfoundland itself, as to the fairness of that method of ascertaining the views of the people.
As your Lordships are aware, in the first referendum, leaving out the odd numbers, there were 69,000 in favour of responsible Government, 64,000 in favour of federation with Canada and 22,000 in favour of continuation with the Commission Government. It was clear, therefore, that in accordance with the fair understanding reached, and in order to ascertain the wishes of the people, the first two questions should again be submitted for determination by the people. It is true that I myself was a party to that procedure months before it was applied; it was communicated to Parliament and was understood by everybody. It is significant that those who have taken the objections to which we have listened in the noble Lord’s Amendment, never thought of them and never voiced them until after the result of the second referendum had been made known. I still wonder how otherwise we could have ascertained the wishes or the people, because in the Act we are required “to ascertain the wishes of the people.” Well, we asked them what their wishes were, and this is what they said. I can assure the noble Lord that, whatever may have been the manipulations to which he referred, so far as this country was concerned we left it to them, as interested and affectionate fellow members of the same Commonwealth; and this is their view. So far as I am concerned, this country, with the consent of everybody, conducted the machinery for ascertaining the wishes of the people in the only way it could conduct it.
So far as the present position is concerned, I think it was fully stated by the noble Viscount who has just addressed the House, and I have nothing to add to it. The case for federation was fully negotiated, and it is a very important point, as the noble Viscount said, that when the second referendum was held, the terms for confederation with Canada were substantially less generous than they 347 are now; and the vote was on that and not on the present proposals. I would ask the House to consider how it was that these eighteen more remote districts clearly came to entertain these wishes. The reason is that although with a certain type of expenditure the Island may fairly be said to be self-supporting, in that last year revenue met expenditure, that balance depends entirely upon what the expenditure is. But what the people in these remote districts want are better social services. They want child allowances and other services, and it is an arithmetical fact that as it stands Newfoundland is quite unable to provide them. I have no doubt that the reason they voted for joining a greater and wealthier partner, was to be able to share in the benefits enjoyed by the other Provinces of Canada.
Finally, I would emphasise the point made by the noble Viscount. The noble Lord, Lord Sempill, talked about Newfoundlanders being deprived of their independence. He put it very strongly. But I should like to hear, for instance, what the free people of Ontario would have to say to anybody who suggested that by being a Province of Canada they have been deprived of their independence. He would find their answer was more forceful than Parliamentary. No, my Lords, it is just plain nonsense. The people of Newfoundland will enjoy a greater and a wider freedom. They will be able to get their needs dealt with by a great Federation, which will be more able to meet their social necessities than by themselves they are now able to do as a small part of the North American Continent. Seeing how the world is moving, and seeing how things are developing, they will be able, by joining up with Canada as a Province of that Confederation, to share more of the benefits which come from large-scale co-operation and from association with greater wealth. But apart from that, I would like to say this: that as the world is moving to-day, we can see that people are everywhere joining together in greater associations, and we must take a longer view. There can be no question that Newfoundland as a part of the great Confederation of Canada, as it is and as it will be, will be immensely stronger and much better able to reap the benefits and the rights of freedom than she would be 348 if her people remained as a small isolated community. I am glad that all sections in your Lordships’ House support this Bill.
LORD SEMPILL My Lords, your Lordships have been good enough to accord me two hearings on the Newfoundland discussions, on February 9 and to-day; and for this I am most grateful. I feel that there is no more today that I can do but pray—as I shall—that when this matter comes before the Judicial Committee of the Privy Council they will decide in favour the result for which I have unsuccessfully striven. Before withdrawing my Amendment, I would ask leave to put one question to the noble Viscount the Leader of the House. He will no doubt have observed that in the House of Commons in Canada, Colonel Drew, in winding up the debate (after which he went into the Division Lobby with seventy-four others), said that the affair had “the taste of an unholy deal.” I should like to ask whether an arrangement was ever come to, as between Britain and Canada, when the question of naval and air bases was under discussion during the war, which has resulted in Newfoundland’s sovereignty over her own territory being given away without her consent.
VISCOUNT ADDISON My Lords, I have had no notice of that question, and I think the noble Viscount, Lord Swinton, should know better than I do, because he was in the Cabinet at the time. But I am quite sure that Newfoundland’s territorial integrity and freedom have always been respected. The point was that we had to make the best use of all our resources for continuing the war.
VISCOUNT SWINTON My Lords, I was not directly concerned with this, but it is an absolute certainty that nothing which was done with regard to the provision of the bases, or the common use of bases, did anything at all which prevented us from giving to the people of Newfoundland the absolute and unfettered right to decide what their own future should be. Indeed, had it not been so, we should not have offered to the people of Newfoundland, as His Majesty’s Government have done, the absolutely free choice as to what their future should be.
LORD SEMPILL I thank the noble Viscount the Leader of the House, and also the noble Viscount the acting Leader of the Opposition, and I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
On Question, Bill read 2a, and committed to a Committee of the Whole House.