UK, HC, “Business of the House”, vol 19 (1982), cols 359-374

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Date: 1982-03-03
By: UK (House of Commons)
Citation: UK, HC, “Business of the House“, vol 19 (1982), cols 359-374.
Other formats: Click here to view the original document (Hansard UK — External Site).

Ordered, That, at this day’s sitting, the Canada Bill may be proceeded with, though opposed, until any hour.—[Mr. Gummer.]

Again considered in Committee.

Amendment proposed: No. 41, in page 2, line 14, after ‘Act’, insert ‘subject to the insertion in Schedule B after section 49, of a section (Amendments requiring assent of aboriginal peoples of Canada) as follows—;

“Amendments requiring assent of aboriginal peoples of Canada

49B. (1) Notwithstanding any provision in this Part, no amendments may be made to the Constitution of Canada by proclamation issued by the Governor General under the Great Seal of Canada under this Part which proposes

(a) to affect any aboriginal treaty rights or other rights or freedoms of the aboriginal peoples of Canada; or
(b) to repeal, amend, alter or make further provision in the Constitution of Canada, including provincial legislation, or any Act or order made thereunder by enactment affecting any of the aboriginal peoples of Canada unless, before it has been submitted to the Governor General, such amendment has been assented to
(i) in the case of Indians, by representatives duly authorised to give such assent from time to time by, and who are appointed by, The First Nations Assembly of Canada at meetings summoned for the purpose;
(ii) in the case of other aboriginal peoples of Canada respectively, by representatives duly authorised to give such assent from time to time by, and who are appointed by, a majority of authorised representatives of the class or category of such peoples at meetings summoned for the purpose.
(2) In this section ‘The First Nations Assembly of Canada’ means the Chiefs of the Indian tribes, bands and Nations of Canada.”.’.—[Mr. George.]

Question put, That the amendment be made:

The Committee divided: Ayes 28, Noes 140.

Division No. 83] [10 pm
Bennett, Andrew(St’kp’tN) Parry, Robert
Body, Richard Powell, Rt Hon J.E. (S Down)
Braine, SirBernard Powell, Raymond (Ogmore)
Buchan, Norman Skinner, Dennis
Cox, T. (W’dsw’th, Toot’g) Stewart, Rt Hon D. (W Isles)
Crowther, Stan Stoddart, David
Cryer, Bob Thomas, Dafydd (Merioneth)
Davidson, Arthur Waller, Gary
Ennals, RtHon David Wilson, Gordon (Dundee E)
Foster, Derek Winterton, Nicholas
HomeRobertson, John Wolfson, Mark
Lamond, James Woodall, Alec
Lawrence, Ivan
Lewis, Ron (Carlisle) Tellers for the Ayes:
McGuire, Michael(Ince) Mr. Bruce George and
Marshall, DC(G’gowS’ton) Mr. D. N. Campbell-Savours.
Alexander, Richard Griffiths, Peter Portsm’thN)
Alton, David Havers, RtHon Sir Michael
Ancram, Michael Hawksley, Warren
Arnold, Tom Hayhoe, Barney
Aspinwall, Jack Heddle, John
Atkins, RtHon H.(S’thorne) Hogg, HonDouglas(Gr’th’m)
Atkinson, David(B’m’th,E) Hordern, Peter
Banks, Robert Howells, Geraint
Beaumont-Dark, Anthony Hunt, John(Ravensbourne)
Beith.A.J. Jenkin, RtHon Patrick
Benyon, Thomas(A’don) JohnsonSmith, Geoffrey
Benyon, W. (Buckingham) Jopling, RtHonMichael
Berry, Hon Anthony Kellett-Bowman, MrsElaine
Best, Keith Kimball, SirMarcus
Biggs-Davison, SirJohn Kitson, SirTimothy
Blackburn, John Knight, MrsJill
Boscawen, Hon Robert Lang, Ian
Bright, Graham LeMarchant, Spencer
Brinton, Tim Lloyd, Ian (Havant & W’loo)
Brotherton, Michael Lloyd, Peter (Fareham)
Brown, Michael (Brigg&Sc’n) Luce, Richard
Bruce-Gardyne, John Lyell, Nicholas
Buck, Antony MacKay, John (Argyll)
Budgen, Nick MacKenzie, RtHonGregor
Butcher, John McNamara, Kevin
Cadbury, Jocelyn Major, John
Carl isle, John (LutonWest) Marshall, Jim (Leicester S)
Carlisle, Kenneth (Lincoln) Marten, RtHon Neil
Chapman, Sydney Mates, Michael
Clark, Hon A. (Plym’th, S’n) Mather, Carol
Clarke, Kenneth (Rushcliffe) Mawhinney, DrBrian
Cockeram, Eric Maxwell-Hyslop, Robin
Cope, John Mayhew, Patrick
Costain, SirAlbert Meyer, SirAnthony
Crouch, David Mills, Iain(Meriden)
Dean, Paul (North Somerset) Miscampbell, Norman
Dorrell, Stephen Mitchell, R. C. (Soton Itchen)
Douglas-Hamilton, LordJ. Moate, Roger
Dover, Denshore Morrison, Hon C. (Devizes)
Dunn, Robert (Dartford) Murphy, Christopher
Elliott, SirWilliam Myles, David
Emery, Sir Peter Neale, Gerrard
English, Michael Needham, Richard
Faith, MrsSheila Nelson, Anthony
Fenner, Mrs Peggy Neubert, Michael
Finsberg, Geoffrey Newton, Tony
Fookes, Miss Janet Normanton, Tom
Forman, Nigel Onslow, Cranley
Fox, Marcus Osborn, John
Garel-Jones, Tristan Page, Richard (SW Herts)
Goodhart, SirPhilip Patten, Christopher(Bath)
Goodhew, SirVictor Penhaligon, David
Goodlad, Alastair Percival, Sirlan
Gow, Ian Pym, RtHon Francis
Greenway, Harry RhysWilliams, SirBrandon
Ridley, HonNicholas Spicer, Jim (West Dorset)
Roberts, Wyn (Conway) Stanbrook, Ivor
Roper, John Stanley ,John
Rossi, Hugh Steel, Rt Hon David
Sainsbury, HonTimothy Steen, Anthony
Shaw, Giles (Pudsey) Stevens, Martin
Shepherd, Colin(Hereford) Stradling, Thomas.J.
Smith, Cyril(Rochdale) Taylor, Teddy (S’end E)
Speed, Keith Temple-Morris, Peter
Speller, Tony Thomas, Rt Hon Peter
Question accordingly negatived.

Thompson, Donald
Thorne, Neil(IlfordSouth) Tellers for the Noes:
Thornton, Malcolm Mr. Selwyn Gummer and
Trotter, Neville Mr. David Hunt.
Viggers, Peter
Ward, John
Warren, Kenneth
Watson, John
Wheeler, John
Wickenden, Keith
The First Deputy Chairman (Mr. Bryant Godman Irvine) I remind the Committee that we are taking schedule B with clause 1, so if any hon. Member wishes to raise points on schedule B other than those already raised on the amendments this is the time to do so.
Question proposed, That the clause stand part of the Bill.

10.15 pm
Mr. J. Enoch Powell Despite the breadth and latitude of the ruling of the Chairmen of Ways and Means that you, Mr. Godman Irvine, have just repeated, it would be tedious if those of us who have taken a detailed interest in the Bill were to use this opportunity to deal with the individual matters in schedule B which were the subject of amendments which have not been selected. Therefore, I wish to address myself to the general question of what sort of document it is that we are enacting by enacting schedule B through adding clause 1 to the Bill.
Part of the schedule is loosely described as a bill of rights and defines itself and entitles itself as a charter of rights. But is this a charter or a bill of rights in the sense that it constitutes a basic constitution that can be interpreted by the courts, and, as a result, the rulings of the courts become law, binding upon citizens of the country concerned and incapable of being amended by its legislature? In other words, is it a document analogous to the constitution of the United States or, to take a different analogy, is it analogous to the European Convention on Human Rights, to which this country has undertaken compliance, compliance with that convention as adjudged, defined and applied by the European Court of Human Rights.

I wish to put three tests in the light of the context of the schedule, in accordance with which I believe that that question can be answered. The first is the generality of a great many of the provisions of the schedule. I shall take only two instances. The first, section 1 of the schedule, where the charter of rights and freedoms guarantees the rights and freedoms set out in it and then follow the words: subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. I take as my second example one that I think may be of particular concern to the hon. Member for Workington (Mr. Campbell-Savours), who, I think, will have section 7 in mind, which says: Everyone has the right to life. If these are prescriptions interpretable by courts and capable, through interpretation by courts, of being made the specific law of the land, then the courts, in effect, become the supreme legislature of the country concerned. The largest of public questions, the most specific matters touching criminality and personal relations and behaviour, cease to be within the competence of the elected representatives of the people and are laid down in accordance not necessarily even with precedent, for there can be no precedent in interpretating such wide and cloudy generalisations. These are interpreted perhaps in accordance with some principles of law derived, I know not whence. Perhaps in the case of the European Court of Human Rights they are derived from Roman law, but they are not derived from the common law of Britain.

So, we ask when we look at a great many of the provisions in this charter” does this mean—for if it is a charter it would mean—that the Canadians are constituting 364 their supreme court as, in effect, their legislature on all these matters which in this country are settled finally—subject to external obligations, which we are now starting to explore and which are undertaken by the Government—by Parliament and, specifically, by this House? It should be understood that, in the sense of being an entrenched and justiciable document, a charter of liberties or a bill of rights is incompatible with parliamentary sovereignty.

It is also incompatible with the rule of law as we understand it, which requires that the law shall be so defined and of such a character that the citizen may reasonably inform himself in advance of what will or will not be adjudged to be lawful. Certainly, no one reading the generalities of the early part of the schedule could possibly decide how a court would rule upon so many measures which in legislation we are careful by procedure to define as accurately and precisely, and often intelligibly, as we

The second characteristic to which I draw attention is that such a document as this usurps—if it is an entrenched justiciable constitution—the parliamentary right of taxation. The courts in effect become not merely the legislature, the lawmaking authority, but the taxing and financial authority of the State. I invite the Committee to examine section 23(3) which states the right of citizens of Canada … to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province (a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction”. There is an immense range of such questions which the House decides week by week as it goes about its business of granting Supply and providing Ways and Means.

A question of quantity—of what it is that warrants the given expenditure of public funds—is, in our view, a matter which ultimately can be decided only by this House, which controls taxation and the expenditure of public money. But, if a court is to be the last instance of decision on what number of citizens is sufficient to warrant the provision to them out of public funds of minority language instruction, the spending and taxing power, pro tanto, is in effect passed to a court. That power cannot logically be restricted to the particular subject to which the judgment of the court relates, for there could be a whole series of judicial decisions carrying expenditure and, consequently, taxation implications.

We know well enough that every decision to spend on A is potentially a decision not to spend on B. If an authority allows one part of public expenditure, and therefore, of taxation, to be pre-empted by some other authority, then in effect all the decisions of policy which involve public funds and public expenditure are transferred away from the elected assembly, representative of the people, to another authority of a different kind altogether.

The third aspect has been discussed already this evening, and I shall not enter at length into it again. This Parliament is sovereign, subject to the qualifications principally introduced in 1972. However, for theoretical purposes let us treat Parliament as what most of us thought it was when we entered it—a sovereign Parliament. If we so wish—although we normally choose not to—we can reverse the individual judgments of any court in the land. If we do not agree with the construction of the law or statute in any court—including the highest in the land and 365 the one upstairs—we alter the law to conform with our view of public policy and, ultimately, with our judgment of the general will of the people of this country.

Therefore, the right to amend and correct interpretations of the law—which cannot be separated from the right to make law that is inherent in a parliamentary body—is incompatible with the entrenchment of a constitution, or with a constitution of such a character that its judicial interpretation becomes part of the binding law of the State. Therefore, the document before us is one of two things: either it is a Bill of rights in the proper sense of the term and, therefore, incompatible with parliamentary sovereignty as we know it, or it is a mere piece of legislation, like any other—such as a road traffic Act, the European Communities Act 1972, or any other major or trivial legislation—that the House has the undoubted power to amend according to its judgment and with the necessary co-operation from elsewhere. Which type of document is it? Which type of document did the Canadians think that it was when they sent it to us?

As I pointed out earlier with the assistance of the Minister, we have been told. In the preamble to the message by which the Bill was transmitted from the Canadian Parliament to Her Majesty, we are told: it is in accord with the status of Canada as an independent state that Canadians”— I do not think that that means Canadian judges— be able to amend their Constitution in Canada in all respects”.

If we had a constitution, or were talking loosely and described our whole body of statute law as our constitution, we would say that. We would say that the British can amend their constitution in the United Kingdom in all respects; and who would say us nay? I believe that that is what the Canadians meant. I cannot believe that the Canadian inheritrix of the sovereignty of this House is content with anything less in Canada than we possess in the United Kingdom. If that is what is meant, it is delusive and untrue to represent the document as if it were an entrenched constitution, a guarantee of rights, a Bill of Rights or anything of that type. Any section of the Canadian public that have been led to that conclusion—no doubt unwittingly by the Government and by hon. Members who have spoken, but by others elsewhere wittingly—have been misled.

In adding schedule B with clause 1 to the Bill, it is our duty to make plain not only to ourselves but to those in Canada the nature—in our view and even more, in theirs, as they have expressed it—of schedule B and consequently of the so-described Canadian constitution. It is, like our law, subject to amendment; like our taxes, subject to the will, and like our interpretation of the law, it is subject to the correction of their Parliament in all respects and without restriction.

10.30 pm
Sir John Biggs-Davison (Epping Forest) Your immediate predecessor in the Chair, Mr. Armstrong, very kindly informed the Committee that anything would go in this debate provided that it was within the compass of Schedule B. Therefore, I wish to refer to clause 58 of the Bill in the spirit of my new clause 3 which the Chair, in its wisdom, did not select.
I invite those who manage the progress of parliamentary business to ensure that the coming into force of this 366 measure, which is the subject of clause 58, shall occur after and not before the Quebec Court of Appeal has ruled on the provincial Government’s test case which is to be heard this very month.

I am not concerned—and I do not think that the Committee should be concerned—with the nature of Quebec’s objections to the Bill. Quebec objects to arrangements for fiscal compensation for opting out of the constitutional amendments, it objects to the provision concerning minority language educational rights, and it also objects to mobility rights. We are not concerned with all that, but I suggest that we ought to be concerned with Quebec’s claim to the right of veto over constitutional changes to which the province does not agree.

The Government of Quebec favoured me with a copy of the letter which the First Minister wrote to my right hon. Friend the Member for Cambridgeshire (Mr. Pym), who, like his opposite number in Ottawa, is President of the Privy Council. The letter complains of failure to respect Quebec’s traditional veto with regard to fundamental constitutional changes”, and it goes on to assert that it would be highly improper for the United Kingdom Parliament to act in the matter until the conclusion of the legal proceedings now in progress. Such action would be contrary to constitutional tradition.

There is no suggestion that this is a question of legality; it is a question of constitutional tradition. But the Supreme Court of Canada laid emphasis upon the importance of constitutional convention as well as of constitutional law, and the Supreme Court, just like the Judicial Committee of the Privy Council in the past—to which reference has been made from the Opposition Front Bench—was unequivocal in stating that there are no exceptions. It said “There are no exceptions”, in 115 years of the constitution of Canada, that have allowed the legislative power of provinces to be affected without their consent.

On Second Reading my right hon. Friend the Lord Privy Seal referred to what might be called “the British Columbia exception” of 1907, which I submit turned out not to be an exception at all. I shall not repeat what I said on Second Reading.

Much praise has been lavished—and rightly so—on the Select Committee on Foreign Affairs, headed by my hon. Friend the Member for Stroud (Sir A. Kershaw). In its first report, the Select Committee said, in words that were quoted by the Lord Privy Seal on Second Reading: The United Kingdom Parliament is bound to exercise its best judgment in deciding whether the request in all the circumstances conveys the clearly expressed wishes of Canada as a federally structured whole. The question that worries me is whether the federally structured whole, which is Canada, founded on a compact between Upper and Lower Canada, has made clear its expressed wishes on the matter. The Select Committee’s report states that Her Majesty’s Government and Parliament here should comply with the joint address from Canada only where it is clear that the request is such that it conveys the clearly expressed wishes of Canada as a whole, bearing in mind the federal character of the Canadian constitutional system”.

In Quebec there are, of course, different opinions. Quebec also contains a quarter of the population of Canada. However, in the past—and this is the constitutional tradition to which Monsieur René Levesque referred in his letter to my right hon. Friend the Leader of the House—proposed amending formulae always included 367 the Quebec veto. The original proposal by the Federal Government included it, and the veto is to be enshrined for the future in the patriated constitution.

A brief quotation from that great Canadian Tory, Sir John A. Macdonald, that Disraeliesque character, may be apposite for my right hon. and hon Friends. He said: It has been understood that no proposal which would threaten the individuality and personality of Lower Canada would ever be acceptable to the people of that part of Canada”.

Quebec has had a veto. Quebec has never forgone a veto, despite what has been said in some quarters. There is nothing new about Quebec’s position. For example, in the Dominion Provincial Conference in 1927, the then Minister of Justice, Mr. Ernest Lapointe, drew a distinction between what he called “old” amendments, which would require no more than majority consent of the Provinces, and vital and fundamental amendments involving such questions as provincial rights, the rights of minorities, or rights generally affecting race, language and creed”.

That, of course, is what this Bill does.

I do not presume to pronounce on these matters—nor do I think that any right hon. or hon. Member of this Committee should do so. However, I anxious that we do nothing here to threaten confederation. Early on, we paid much attention to the judgment of the Supreme Court. We should not now place ourselves in danger—or place our Canadian subjects in danger—of being at variance with the courts. Therefore, I ask, as is quite possible within the conduct of business, that there should be a moderate stay in the enactment of this great measure.

Mr. Campbell-Savours The right hon. Member for Down, South (Mr. Powell) made a very interesting contribution to our debate. I apologise for the fact that I am not in good voice, which I have lost over the past few days. The right hon. Member set out to prove that we should be concerned about the possible judicial interpretations that may be made arising from the patriation of this Bill of Rights, and that we may well be removing from the Canadian House of Commons the right to legislate, to the extent that the Canadian Supreme Court may seek to overturn whatever decisions it may wish to take because whatever it does has to comply with the terms, sections and requirements of the charter that we are being asked to patriate.
Before I come to the matter that I want to raise, I wish to point out that I have no desire to prevent this Bill of Rights or charter from being constitutionally patriated. I join all right hon. and hon. Members who seek that there should be patriation, but I have one considerable reservation—what will happen when judicial interpretation affects certain sections of the Bill. My intention in raising the point about the unborn in Canada is not that I wish in any way to interfere in their right to legislate on abortion. On the contrary, I wish to do the opposite. I wish to provide them with the right to choose for themselves, I believe that the Bill, including schedule B, will no longer allow them that right.

People in Canada should have the right to choose for themselves whether they want more liberal legislation on abortion or more restrictive legislation. In my view, because of the way in which the Bill of Rights and charter are construed at this stage, they will not have the right to take those decisions.

Last year, the hon. Member for Bute and North Ayrshire (Mr. Corrie) introduced a Bill on abortion which 368 in the case of the British Parliament was designed further to restrict. He was able to do that in the state of the law then prevailing. My case is that under the Bill as we are required to patriate it, that will not be the case, and that a Member of the Canadian Parliament will not have the right to go to that Chamber to seek the approval of that House for any Bill without the courts intervening with the objective of overturning whatever law is provided for by the Canadian Parliament.

Mr. J. Enoch Powell The hon. Gentleman has several times referred to our patriating the constitution in schedule B. I make more than a pedantic point when I say that we cannot be patriating that because it does not exist to be patriated. We are making it de novo, and we are choosing to make it so. It is a separate question—I am not interfering with the hon. Gentleman’s main argument—whether or not we patriate that which we can patriate.
Mr. Campbell-Savours The right hon. Gentleman clarified what I should have said. Perhaps I slightly misled the Committee, although I am sure the right hon. Gentleman will again put me right if I veer slightly from the truth.
Let me refer directly to the section that causes me some concern. Section 52 says that under the Charter of Rights and Freedoms the Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is … of no force or effect.

That merely reinforces the point that I am making, which is that the Charter itself will provide a framework on which Canadian legislation will be based. As I understand it, it will be Canadian legislation as approved by the courts, because they will become the testing ground for any legislation that is the subject of appeal.

I turn to the position of the unborn in Canada. Section 7 of the Charter says: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The section includes the crucial words, words of international renown: “everyone”, “person” and “individual”. Those words are of particular concern to rue, because in a number of cases heard not only in Canada but in America and in the United Kingdom they have proved useless for the protection of the unborn.

10.45 pm

From a substantial amount of case law, I wish to refer the Committee to some particular cases. In the case of both Dehler v Ottawa Civic Hospital in 1980 and Edwards v Attorney-General of Canada in 1930 the word “person” was held to exclude the foetus. In the Canadian case of Morgentaler v Regina in 1975 the word “individual” was held to exclude the foetus. In the case of Paton v British Pregnancy Advisory Service, “person” was held to exclude the foetus, and in a Canadian case to which I shall return later, Roe v Wade, the foetus was also held not to come within the definition of “person”.

I am not in a position to say how eminent the Canadian Library may be, but I am told that it is a very responsible source of information, as I am sure that it is if it is as good as our Library. The Canadian Library maintains that the words “everyone”, “person” and “individual” are all interchangeable. I am also told that in Committee in the 369 Canadian Parliament when an amendment was being considered the Canadian Government admitted that the words were all interchangeable and of equal value.

I suggest that section 7 is a danger in that it rules out any protection for the foetus, and that the courts may rule on the basis of the section. However, in section 33 there is an overriding exception, which covers section 2 and sections 7 to 15. At first glimpse that would appear to rule out the section that I have just dealt with and therefore perhaps remove the danger that I have spent the past five minutes referring to. But that is not so, because the moment one rules out that section another section—section28—arises. It says: Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons”. Again, that wicked word “person” returns. We must ask ourselves why it arises again in the Bill. Let me go into the origins of that. It was thought up by the women’s movement in Canada. I am told that there was much argument about its inclusion. The Canadian Advisory Council on the Status of Women, in November 1980, stated: The recommendations to include the word ‘person’ was to prevent the foetus from having protection in the Charter. It is clear that that section has also been interfered with in such a way as to provide good work and income for the courts and the Supreme Court of Canada and, no doubt, it will give them the opportunity, when tested against the background of the charter, to change the law in favour of liberal abortion, which is not the open or explicit intention of the Canadian Parliament. I am convinced that that would not be the intention of this Parliament, if this matter were known to the whole House.

As I understand it, criminal code 251 is the current law in Canada governing administration of abortion. The charter will give courts the opportunity to dismantle criminal code 251—I dissent from the views expressed by the right hon. Member for Down, South when referring to the American constitution, and I am sure that he will intervene and tell me where I am mistaken—in the sense that Canadians seem to be talking about the Bill of Rights in the same way as the Americans appear to refer to the American constitution.

The precedent for my remarks is the case I referred to earlier and which ruled out, in the definition of “person”, the word “foetus”. That was the case of Roe v. Wade, heard in Texas, in which the court, in effect, ruled in favour of an appellant challenging the existing restrictive American law on abortion in about 1972 or 1973. The appellant tested that law in the courts, which ruled that the law, as it existed in Texas, offended amendments 9 and 14 of the American constitution. Therefore, no sooner had the decision had been taken to reward the appellant with a favourable response in the Texas courts, than all the law on restricting forms of abortion in America was wiped out overnight. That is my precedent and I simply ask the House whether it could happen again.

There is an obligation on the House—as my amendments sought to show—to decide on this matter. Of course, that decision cannot now be taken because these matters have passed. All I am trying to stop is a precedent, which occurred in the United States of America, happening within Canada. Hon. Members would wish to see that brought about.

370 The same Canadians reject my analysis. I have heard the word “neutral” being used to refer to the Bill on many occasions over the past week. However, is it neutral? Many people in Canada believe that it is not neutral; a firm of banisters—Stephen’s, French and McKeown—and many other organisations and societies in Canada maintain that this Bill lacks neutrality. The women’s movement in Canada believes that it is not neutral. It may seek to press it as neutral at this stage, but it maintains that it is not. The. Catholic Church maintained that it is not neutral and, if the Dehler v. Ottawa civic hospital judgment is right, it certainly is not neutral. I quote Mr. Justice Robins in his summing up of that case, who said: Accepting as fact the conclusion the plaintiff seeks to establish by testimony at trial, that is, that a foetus is a human being from conception, the legal result obtained remains the same. The foetus is not recognised in law as a person in the full legal sense.

Therefore, it seems that some eminent people in Canada are willing to prejudge what may happen if those matters are tested in the courts of Canada. They believe not that the Bill is neutral but that it will lead to abortion on demand in Canada, which was never the intention of this Parliament. We are doing that from here. It is we who are responsible for what is returned to Canada.

In some way or another we should seek to amend the Bill. There are two ways of doing so. The right hon. Member for Down, South dwelt at great length on one of them. We know that there are some major obstacles to amendment in Canada. One is the requirement that the federal Government should support amendment and that seven out of the 10 provinces representing 50 per cent. of the population should approve it. That is a severe hurdle, particularly in the light of the considerable frictions that have existed traditionally between the provinces and the federal Government.

Alternatively, we can amend the Bill. However, repeatedly over the last week I have been informed that we are not here to amend. We can table amendments and they will be heard, but the Government do not wish to accept amendments. We are being used—it cannot be proved either way until it is tested in the courts in Canada—perhaps to change the law in Canada in our name without being provided with the right to amend in any way what could be the source of whatever changes take place in Canadian law.

Mr. Trudeau tells us that it is unnecessary for us to express that view. I shall make clear what Mr. Trudeau said about the amendment when it was dealt with in the courts. When the amendment to which I referred was discussed in the House of Commons in Canada, he said: If the essence of the question is whether this House”— that is the Canadian Parliament— continues to have the right to deal with abortion, Madam Speaker, the answer is yes. It will be the Parliament of Canada which will still be writing the Criminal Code and the members of this House will have the responsibility, and I wish them well, in dealing with the problem of abortion. Mr. Trudeau was seeking to reassure the Canadian House of Commons that it would retain the right to legislate.

In 1979, when we were dealing with the Transport Bill, undertakings were given with every confidence by Ministers at the Dispatch Box as to the effects of legislation on transport undertakings. However, as we have subsequently found out in the last few months, the courts overruled the will of the politicians. The view of Mr. Trudeau is but the will of a politician. I maintain that that desire and the belief that the Canadian Parliament will 371 retain the right to legislate is not necessarily to be accepted not only because of the precedents here but because of the precedent in Canada.

When criminal code 251 was brought before the Canadian House of Commons in 1969, the then Justice Minister, Turner, gave a number of clear assurances to the House. He said that there would be no increase in abortion, no eugenic abortion and no Medicare cover for abortion.

I am not interested in whether it is right or wrong to have more permissive or more restrictive abortion legislation. I am saying that what the Justice Minister made clear to the Canadian House of Commons at that time did not prevail. In every one of those areas there were changes, proving that the assurances given by Mr. Trudeau and Mr. Turner were not valid.

Therefore, the assurances given by Mr. Trudeau to the Canadian House of Commons should be no more valid on this issue than they were then or in the case of our own Minister in the Standing Committee debates on the Transport Bill in 1969.

11 pm

The issue that we have to decide is very simple, although we do not have the right to do so, because there are no amendments. It is whether this Committee accepts that the Canadian Parliament and not the Canadian courts has the exclusive right to decide about abortion. In my view, as schedule B stands, that will not be so and it will be the Canadian courts which decide.

That view has been expressed not only by me as a Labour Member of this House and by three Labour or equivalent Members of the Canadian House; it was expressed and indeed almost mirrored in speeches made by Conservative Members of the Canadian House of Commons. Every Conservative Member of the Canadian House voted in favour of the amendment that I tabled but which was not selected. So there is agreement in Canada and great anxiety about what has happened. Yet we are not in a position to discuss it. Indeed, members of Mr. Trudeau’s own party defected on this issue when it was debated in the Canadian Parliament.

Whatever we do, we must ensure that generations of Canadians in the future have the right to decide for themselves whether they want more permissive or more restrictive abortion legislation. It is my submission that as the charter stands today that will not be their right, because the Canadian courts will effectively have removed it.

Mr. John G. Blackburn (Dudley, West) I have attended most of the debate and I do not pretend, nor would I deceive the Committee by suggesting, that I am an authority on constitutional law. But I exercise the sovereign right of every member of this Committee to express an opinion, particularly at this historic moment, as it has been described, for Canada. It may indeed be a sacred moment. By the grace of God, let us hope that it is not a tragic moment for Canada.
The proceedings of the Committee got off to a very fine start with a speech that few Members of the House will ever forget—that of the right hon. Member for Down, South (Mr. Powell). The right hon. Gentleman outlined to us then and said again today in very clear tones that two issues are involved. Will it be the right of an elected House of Commons of Canada to create the legislation, or will it be a matter that is left to the judiciary?

During the course of the Committee, time and again hon. Members have come squarely to the issue of why we 372 are debating the Bill. We are doing so because we have to and we have been invited by the Canadian Government to pass the legislation. I shall not take much time but there are times in one’s public and political life when one is called upon to stand up and be counted.

Tonight, and with this Bill, I am prepared to stand up and be counted on one issue. That matter relates to the legislation contained in the Bill under sections 52 and 7. I think that you would rule me out of order, Mr. Armstrong, if I were to develop an argument for or against abortion. That is not my intention. But, in passing this legislation, we have a solemn responsibility as a legislative assembly to make sure that it leaves this place as we would wish it to be. Section 52 says: The constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. We cannot accept section 52 without spending just a moment examining section 7. When we do so, we know, in the quietness of our hearts, that the eventual decision of this legislation will rest, not with the House of Commons of Canada but with the judiciary.

I just place it on record that, in my judgment, humble though it is, but saturated with sincerity, I would prefer the legislation of the Canadian people to rest with the Canadian House of Commons rather than with the judiciary. I direct two questions to the Front Bench, on which I would value its guidance. Is it true that, with the knowledge that my right hon. Friend has, the passage of the Bill could open the way for the facility of abortion without question within the terms of this constitution? If that is so, I want him to know that there are hon. Members who would find that proposition morally offensive.

The Lord Privy Seal (Mr. Humphrey Atkins) I do not think that I need detain the Committee for long at this hour of night on the clause stand part debate, with which we can discuss any remaining matters arising out of schedule B. We have had two full days of discussion in Committee about most of these matters but, nevertheless, a number of hon. Members have raised points with which I should deal.
Although my hon. Friend the Member for Epping Forest (Sir J. Biggs-Davison) was not prepared to speak on this amendment, he earlier spoke about Quebec and urged that there should be at least a delay in the passage of the Bill because Quebec still does not agree to its passage. That issue was covered on Second Reading. I referred on Second Reading to the disagreement between Quebec, the other nine provinces and the Federal Parliament and said that the Government do not believe that the existence of this disagreement provides grounds for declining to act, as we have always acted, upon the request of the Canadian Parliament.”—[Official Report, 17 February 1982; Vol. 18, c. 295.] At the end of the debate the House of Commons agreed with that proposition. I find no reason to change my judgment now. As the House of Commons agreed with the proposition, I hope that the Committee will continue to agree that in spite of the disagreement, which we all regret, there is no cause for delaying the passage of the Bill, which was what we decided on 17 February.

Sir John Biggs-Davison My right hon. Friend says that we should not decline to do what we are asked. I am not suggesting that we should. That is different from the 373 timing of what we do, which is a distinct matter. The timing can be taken care of in a way that the managers of legislation know so well.
Mr. Atkins My hon. Friend is right, but that matter was covered during the debate on Second Reading. The Government’s view then—it remains the same—was that we should act. We thought that we had held our hand long enough and that we should go ahead with the Bill. I have no further advice to offer the Committee save that we should proceed.
The right hon. Member for Down, South (Mr. Powell), the hon. Member for Workington (Mr. Campbell-Savours) and my hon. Friend the Member for Dudley, West (Mr. Blackburn) asked a number of questions about schedule B, which will be the Constitution Act of Canada. The right hon. Gentleman raised three issues that worried him. He spoke about some parts of the Constitution Act having a generality that is too great, some parts usurping the parliamentary right of taxation and the powers of amendment. He said that it was different from our legislation. Yes, it is. It is very different from ours. It is a different country. It is Canada and not the United Kingdom. In criticising the way in which schedule B is presented to us, the right hon. Gentleman was not criticising Her Majesty’s Government. He was not even criticising the Canadian Government. He was criticising the Canadian Parliament. It was the Canadian Parliament and not the Government—it was the Senate and the House of Commons of Canada—which asked us to enact the Bill in this form. It is no good the right hon. Gentleman shaking his head. He knows perfectly well that it was the elected representatives of Canada in Parliament assembled who invited Her Majesty and the House of Commons to pass legislation in this form.

Of course the right hon. Gentleman has doubts. The proposed legislation is different and we are dealing with a different country. If we were dealing with this country, his arguments about the unusual nature of what is proposed would be valid, but we are dealing with Canada and not the United Kingdom.

The same argument applies to the doubts that were expressed by my hon. Friend the Member for Dudley, West and the hon. Member for Workington. The hon. Member for Workington said at the beginning of his speech that he wanted to see patriation. We need not argue about the word at this stage. He continued to say what would happen. The issue that worried him most about the Bill of Rights was protection for the unborn child. He concluded by saying that in Canada things will happen as the Canadians want. Yes, I agree with him. What the Canadians want is in the Bill and they have said so. It may not be what he wants but, with respect, he does not represent a Canadian constituency. We are considering what the Canadians want.

My hon. Friend the Member for Dudley, West spoke about the right of the elected Parliament of Canada to create legislation. Yes, I agree with him. It has done so and that is what we have before us. The Government have not created it.

Mr. Campbell-Savours rose—
Mr. Atkins My hon. Friend referred to acting on the Canadian Government’s request. I remind him that we are 374 not acting on a request of the Government of Canada. We are acting at the request of the Senate and the House of Commons of Canada, which are supported by nine of the 10 provinces.
Mr. Campbell-Savours Will the right hon. Gentleman give way?
Mr. Atkins No, I shall not. The hon. Gentleman can speak again if he wants to do so.
No hon. Member has advanced reasons why we should not approve clause 1. The Bill has been presented to us by the Senate and House of Commons of Canada. Everybody who has spoken agrees that they should decide the future of Canada. We should give them that power by approving the clause.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill.

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