UK, HC, “Canada Bill”, vol 18 (1982), cols 762-831

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Date: 1982-02-23
By: UK (House of Commons)
Citation: UK, HC, “Canada Bill“, vol 18 (1982), cols 762-831.
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Considered in Committee.


4.22 pm
The Chairman I shall make a brief statement that may clear a number of points of order before we begin the Committee. I remind hon. Members that clause 1 of the Bill refers to a specific and complete document, the Constitution Act 1982 as set out in schedule B. In order to protect the Committee’s right to consider amendments to the schedule, on my instructions hon. Members have been advised that the effective way to seek to amend the schedule is to table amendments to clause 1. When all the selected amendments have been disposed of, hon. Members wishing to raise other points on schedule B should do so on the Question being proposed, That clause 1 stand part of the Bill.
Mr. Clinton Davis (Hackney, Central) On a point of order of which I have given you prior notice, Mr. Weatherill. It is to ascertain whether you have received any communication from the Leader of the House or those in charge of the Bill that they have no intention of proceeding with the Committee today.
I do not deny that the Leader of the House, in presenting the Bill and in pursuing the Committee stage as he wishes to do—at least that has been his intention hitherto—may be within the rules of order. Mr. Speaker has so directed. However, I ask whether it is in the interests and the preservation of the dignity of this Parliament to do so with the unseemly haste elected by the Government. Only three parliamentary days have elapsed since Second Reading. That, in itself, is an unusually short period before embarking on the Committee.

It is common ground that the Bill is of unique character and of considerable importance to Canada and to Britain, hence to the House of Commons. Mr. Speaker has ruled that the Bill is amendable. That is so, however inconvenient it may be for the Government’s strategy on the Bill. It follows that the amendments should be considered properly.

The amendments that have been tabled and selected are germane to the complex issues directly connected with the purposes of the Bill. That must involve the provision of adequate time for their consideration by persons other than the authors of the amendments. Yet for the most part the amendments were available to hon. Members only yesterday. It is outrageous that hon. Members should have so little time to give due consideration to the amendments now before the Committee.

It would hardly have been impossible to transfer Thursday’s business to today and to hold the Committee on Thursday. The Government, for their own convenience, are attempting to frustrate a prime purpose of our parliamentary procedures—that Parliament should be entitled to conduct a meaningful debate on the issue before it.

Another important purpose of Parliament is being subverted by the procedure elected by the Government. Interests outside the House should have an adequate opportunity to read, consider and advise hon. Members on the amendments that are to be debated. That is a time-honoured tradition that plays an important part in our deliberations in Committee. In this instance, there are 763 many such interests, not least the Federal Government and provincial governments of Canada. It is not irrelevant to my point that when, following the first accord, attempts were made to place a Bill before the House of Commons, outside interests and hon. Members played a significant part in frustrating that object. In a previous context I raised another point—

The Chairman Order. I called the hon. Gentleman to raise a point of order. He seems to be making a speech.
Mr. Davis The points of order that I wish to address to the Committee are serious.
My next point of order relates to the undesirability of proceeding with the Committee stage while litigation is pending in the House of Lords. A petition has been presented for leave to appeal. That petition could be expedited and the matter resolved shortly. To proceed with the Committee today violates the important interests of the House of Commons.

To proceed with the Committee so soon after Second Reading is to deny hon. Members the opportunity to research a number of matters that are germane to our consideration. For example, it came to my notice only a few hours ago that a Bill had been enacted in the Federal Parliament—Bill C 48—which could eradicate oil and gas rights on land that is subject to aboriginal claims. We do not know what the effect of that enactment will be. We do not know whether it will have the effect that I have suggested, nor do we know what the effect will be on our consideration in Committee. That is a fundamental point that should be probed before we proceed further in Committee.

4.30 pm

The reputation of Parliament will be demeaned if the Bill is debated in the cirumstances that I have described. The Government may be complying with the strict letter of parliament procedure, but they are not complying with the spirit. I draw your attention, Mr. Weatherill to “Erskine May”, pages 205 and 206: Reference must also be made to certain parliamentary conventions which exist to supplement the rules of procedure, mainly for the purpose of securing fair play between the majority and the minority, and due consideration of the rights of individual Members. That convention depends on the respect that the Government should have for the rights of minorities and the corporate sense of the House of Commons. By proceeding in this way, the Government are flouting those conventions, misusing the forms of the House of Commons, obstructing the proper transaction of its business and frustrating hon. Members in the pursuits of the business that they wish to undertake with the care and diligence that it merits.

Mr. J. Enoch Powell (Down, South) On a point of order, Mr. Weatherill. I wish to raise a narrower point of order, while associating myself with everything that has just been said by the hon. Member for Hackney, Central (Mr. Davis). In effect, there have been only two parliamentary days since Second Reading on which hon. Members were able to consider a complex and difficult Bill and to table amendments. Thus, a number of starred amendments stand on the Order Paper at the moment which in the ordinary course of events, and with the normal interval between Second Reading and Committee, would not have been starred amendments. Perhaps, Mr. 764 Weatherill, when you reply to the hon. Member for Hackney, Central you will say whether you will be willing, during the course of this sitting, should the Committee make substantial progress, to consider, since your selection at the moment is provisional, calling certain of the starred amendments. if submissions to that effect were made to you. I should be grateful if you would consider that.
Mr. David Ennals (Norwich, North) Further to that point of order, Mr. Weatherill. I associate myself entirely with the points of order raised by my hon. Friend the Member for Hackney, Central (Mr. Davis) and the right hon. Member for Down, South (Mr. Powell). I wish to raise an additional point, which has transpired only today and which is extremely relevant. On Second Reading we considered a number of legal actions which were awaiting. They included not only the petition to the House of Lords and the writ of the High Court from the Indian nations of Saskatchewan seeking certain declaratory orders. but the submission in the Chancery Division of the High Court from the Indian nations of British Columbia, Manitoba and Ontario.
This morning, in the Chancery Court, those Indian nations asked Mr. Justice Vinelot to order a speedy trial of their action. The judge said that the case raised issues of law of great constitutional importance and that they should be clarified at the earliest moment. He directed that the case should be heard on 8 June 1932, or at the first available opportunity. It became clear during the course of the hearing that if the plantiffs succeeded in their action, the Canada Bill would be declared unconstitutional and of no effect. That would have profound complications for the continuing controversy, and for Canada itself. That underlines my submission and the submissions already made by my hon. Friend the Member for Hackney, Central and the right hon. Member for Down, South that to proceed with the Committee stage of the Bill would bring us into contempt.

Only a few days ago, the Toronto Globe and Mail, which is Canada’s only national newspaper, had a lead ing editorial which started: Canadian history is being made in Westminster, the British Parliament is doing what we were certain it would do. That comment referred to our Second Reading debate. Today’s circumstances would perhaps lead that paper to pass a different judgment on the way in which Parliament conducts its business.

Mr. J. Grimond (Orkney and Shetland) On a point of order, Mr. Weatherill. The Government will be well aware of the anxiety that the handling of the Bill has caused. On my point of order it is obviously out of order to say that the Government cannot proceed with the B ill, because Mr. Speaker has ruled that they can. Nevertheless, as has been said, this is a peculiar Bill, as well as an important one. Its repercussions will be felt outside this House and, indeed, outside the country. I hope, therefore, that the Government will start our debate by explaining why this haste is necessary when proceedings are before the courts, because it is unusual to proceed when a matter is before the House of Lords. An explanation would be useful both to the House and to our good relations with the people of Canada.
Sir Bernard Braine (Essex, South-East) On a point of order, Mr. Weatherill. This is no ordinary Bill. We are all conscious of the fact that it will have considerable 765 repercussions in Canada. It involves uncertainties, because of the law cases that have yet to be settled. It is clear that once we have disposed of the Bill we can have no responsibility for its consequences. For that reason, we should be careful about what we do.
We are now embarking on the Committee stage, and we shall have to see what progress we make. Surely one way to resolve some of the difficulties that have been described by right hon. and hon. Members would be for the Government to say at some stage—perhaps at the beginning of the debate, depending on the progress that we make—that further time will be allotted to the Committee stage. I urge that course, for a simple reason. The matters upon which we are embarking principally concern human rights, and the human rights of a peopje outwith the sovereign control of this country once the Bill is passed. Therefore, we should not rush the matter.

I am sure that no right hon. or hon. Member wishes to waste time in this debate. Indeed, we are all imbued, I think, with a great sense of responsibility in this regard. I urge, therefore, that consideration be given to allowing proper time for the completion of this Committee stage, for right hon. and hon. Members to reflect, and for further amendments to be tabled, if necessary. There has been little time for those of us who take a deep interest in the matter to gather our thoughts and prepare for this crucial Committee stage.

Mr. Bruce George (Walsall, South) On a point of order, Mr. Weatherill. It is the clear duty of the Chair—clearly I am not telling you something that you do not already know—to uphold the interests of minorities as well as those of majorities. Labour Members wish to assist minorities, who have had short shrift in the Canadian Parliament. In three respects they have not had the justice to which they are entitled. The first relates to the timing of the legislation. Secondly, a number of cases are pending in the courts which should be decided and a definitive ruling given before we legislate.
The third—it is matter of lesser importance, but it is nevertheless important—concerns the grouping of the amendments. I accept that a decision has been made and that often it is not expedient to challenge the grouping of amendments. However, the amendments—about 10 of which are in my name—are not meant to be part of a filibuster. Serious amendments have been tabled and the grouping together of so many disparate elements will damage the role of some Labour Members in representing minorities outside this place.

I therefore ask whether even at this late juncture it is possible to change the grouping of amendments so that those who wish to espouse the cause of native peoples have a better opportunity to do so. We can thus avoid lumping amendments together in what might be construed to be an impractical way.

Mr. Christopher Price (Lewisham, West) Further to that point of order, Mr. Weatherill. While associating myself with the points put forward by my hon. Friend the Member for Hackney, Central (Mr. Davis), may I support the point of order raised by the right hon. Member for Orkney and Shetland (Mr. Grimond)? The Bill is peculiar, because it is the only Bill that I have ever seen without an explanatory memorandum. It is a Bill which, for the first time ever, purports to legislate in a language that one is 766 not allowed to speak in the Chamber. There have been precedents, but they are quite different. Finally, we are purporting to legislate at a time when litigation is going through the courts.
It has been ruled by Mr. Speaker that, notwithstanding those three pecularities, the Bill is in order. The measure is now being considered in Committee, the purpose of which is to make progress on the Bill. I urge the Government, through you, Mr. Weatherill, to realise that the chances of making progress would be enormously enhances if, at the beginning of the Committee stage, they were to make a statement on how they intend to deal with the Bill in Committee, the time that they intend to make available and their attitude to the litigation that is before the courts, which is in total contrast to a previous case.

I am glad to see the Attorney-General on the Front Bench. He will remember that when the Contempt of Court Bill went through Parliament last year a very important case—the Harmar case—was before the courts. The Attorney-General urged the Committee to let the courts deal with the matter first and to let Parliament legislate afterwards. The other place has just dealt with that case.

On this occasion the Government appear to be taking the opposite point of view and saying that Parliament should legislate while there is litigation before the courts. It is in order for Parliament to legislate at any time, but there is a certain disparity in the Government’s practice. A Government statement on how the Committee stage should be treated will enormously enhance the chances of the Bill making progress.

Mr. George Cunningham (Islington, South and Finsbury) I do not wish to delay the Committee, but I am struck by the fact that every hon. Member who has spoken has pressed you, Mr. Weatherill, and the Government Front Bench, in a certain direction. I should not like either you or them to think that all hon. Members in the Chamber are of that view.
If we were to argue that we should not proceed with the Bill while litigation was continuing in our courts or the Canadian courts, it could mean that the Bill would never go through at all. There are endless opportunities for one group after another to bring forward litigation in either set of courts. I hope that we shall adhere to our normal practice on issues that have been canvassed very deeply over a prolonged period and get on with the actual discussion and reach decisions on what we want.

Mr. Kevin McNamara (Kingston upon Hull, Central) Further to that point of order, Mr. Weatherill. I agree with much of what has been said. However, I must disagree with the hon. Member for Islington, South and Finsbury (Mr. Cunningham). Apart from the appeal that is before the other place, there is litigation in Canada. I raise this matter because there is a feeling, which only the Government Front Bench can substantiate, that the legislation must be enacted quickly in order to outwit the province of Quebec and the current litigation befor the Quebec Court of Appeal. That may or may not be the case.
Unlesss we have a timetable from the Government for the Bill’s progress—when it is likely to go to the other place and when it is expected to receive Royal Assent—we will be left with the deep suspicion that what is being done is exactly what the Select Committee warned the Canadian Goverment about when it started on this venture.

767 4.45 pm

The House has introduced legislation, which will be enacted by this Parliament. It may then be produced in Canadian courts, and Canadians may be told that they have no further right of appeal because the Mother of Parliaments has legislated. That sets a bad precedent. In the early stages the provinces discussed this issue, and the Canadian Goverment and this Goverment recognised that point, but now, because only one province objects, the point seems to be disregarded.

I immediately concede the point raised by the hon. Member for Islington, South and Finsbury when he said that there could be endless litigation. However, Mr. Weatherill, you should urge the Government to give us a timetable, because the other place may rule categorically, and that would be a binding precedent on all the other cases. In addition, if the Quebec case is not argued through, it will be said that the Anglo Saxons in Canada forced the legislation through against the wishes of the French. That would not be good for Canada’s future. We should bear that in mind as part of our responsibilities.

I trust that the Government will consider that point and that a Minister will now let us know the Government’s plans for progress and the date on which they expect Royal Assent. That might help the Bill’s progress.

The Chairman Hon. Members will readily understand that I can rule only on those points that affect the Chair, I am not responsible for the Government’s timetable. However, I can rule on several of the points of order that have been raised.
In reply to the right hon. Member for Down, South (Mr. Powell) and the hon. Member for Walsall, South (Mr. George), I should point out that this morning I carefully considered the grouping of the amendments, which included the starred amendments. However, I shall of course consider any further amendments that are put forward during the Committee stage. My answer to the hon. Member for Walsall, South is that I cannot at this stage change the grouping which I have so carefully considered.

The other matters that have been raised are for the Government to consider, not for the Chair. However, I suggest that we should make progress, as the right hon. Member for Orkney and Shetlands (Mr. Grimond) said.

The Lord President of the Council and Leader of the House of Commons (Mr. Francis Pym) As a courtesy to the Committee, I should like to comment without going too far into all the matters that have been raised.
As the Committee knows, last week in the House I announced today’s business. Many questions were asked, including one by the right hon. Member for Norwich, North (Mr. Ennals) and one by the hon. Member for Walsall, South (Mr. George). In reply to their questions, which came towards the end of our exchanges, I said that I had taken all the factors relating to the Bill carefully into account and that I understood the desire to take longer over the Bill. Discussions were held through the usual channels, both before I announced last week’s business, and subsequently. We tried to find an arrangement that would give the Committee more time, but that was not practicable. Therefore, the day that I announced last week—Tuesday—has remained on the Order Paper.

Although the time between Second Reading and the Committee stage is exceptionally short, there are several precedents for constitutional Bills being considered by a 768 Committee on the Floor of the House in the week following Second Reading. Although in a sense it is irrelevant, the Bill was published two months ago, and the issues and main arguments were well known long before that. I do not make that point as an argument for justifying the short notice, but it is relevant.

The hon. Member for Kingston upon Hull, Central (Mr. McNamara) asked about the timing. I know that there is a desire in Canada that we should make progress, and I am sure that we shall do so this evening, but I have no idea when the Bill will leave the House and receive Royal Assent. We have never had a date in mind, but we shall make what progress we can. Bearing in mind all the considerations that must be taken into account, I hope that we can now proceed with the Committee stage.

Mr. Ennals On a point of order, Mr. Weatherill. In putting points of order a number of hon. Members have asked the Government to explain the reason for what the right hon. Gentleman described as an exceptionally short period—two days—since Second Reading. Although we are grateful to the Leader of the House for rising to give an explanation, he did not say why the Government believed that it was necessary to have the Committee stage today, as opposed to Thursday of next week, or some other time. Why have the Government acted with such unseeinty haste?
Mr. Pym Had it been possible to arrange, through the usual channels, for the Committee stage to be taken tomorrow or Thursday, that would have given slightly more time and fallen within the precedents that I have described on constitutional Bills. However, having taken into account the Canadian Government’s request and the surrounding factors, and without going into detail, we believe that we should make progress this week. Today is the only day on which the Committee can do that.
After consultations through the usual channels we felt that, in view of the circumstances, and in view also of the long history leading to the publication of the Bill two months ago, we would be justified in that. I hope, therefore, that the Committee will now be able to proceed.

Several Hon. Members rose—
The Chairman Order. The Leader of the House has given his explanation. We cannot have further points of order and we should now endeavour to make progress.
Mr. Clinton Davis On a point of order, Mr. Weatherill. The Leader of the House has not given an explanation. He merely said that no further time could be found this week. He referred to consultations through the usual channels, but he knows very well that the Opposition strongly objected to the Committee stage being taken today. Why is it not possible for the Committee stage to be taken on Thursday, to give some time for the amendments to be considered?
Mr. Pym Leaders of the House, under Governments of both political parties, have been careful to preserve the security of discussions through the usual channels. The hon. Gentleman can check for himself that those discussions took place. Suggestions were made to try to meet the point that he has raised. Unfortunately, it was not possible to make alternative arrangements.
The Chairman Order. We have had a full debate on the timing of the Committee stage. My concern is only with points of order for the Chair. We must now proceed to the first group of amendments.

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