UK, HC, “Canada Bill”, vol 19 (1982), cols 287-377
By: UK (House of Commons)
Citation: UK, HC, “Canada Bill“, vol 19 (1982), cols 287-377.
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Considered in Committee [Progress, 23rd February]
[MR. BERNARD WEATHERILL in the Chair]
Mr. George Cunningham (Islington, South and Finsbury) I regret that I have to raise with you Mr. Weatherill a point of order arising out of your ruling at the beginning of the first day of the Committee stage, when you referred to schedule B as a specific and complete document”. You added: In order to protect the Committee’s right to consider amendments to the schedule … the effective way to seek to amend the schedule is to table amendments to clause 1.”—[Official Report, 23 February 1982; Vol. 18, c. 760.] I understand, however, that the view has been tendered that, irrespective of whether any amendment to clause 1 is carried, no amendment to schedule B would be in order, because of the nature and origin of the text in that schedule. I submit that that view is an incorrect statement of the practice and procedures of the House, and that our procedure does allow an amendment of schedule B to be in order.
I feel that I must raise this point now because of the danger of creating a precedent, whereby parts of Bills which are now amendable would become unamendable, because, although a Bill like this one is not likely to recur, the point could crop up in normal domestic legislation—and has indeed done so in the past.
The point is probably academic to the conduct of the remaining stages of this Bill, because even if I persuaded you right now of my point, Mr. Weatherill, you would still be free—and in my respectful submission would be right—to decline to select any amendment to schedule B, on the grounds that the subject of it had been adequately debated and the view of the House on it made clear on the amendments to clause 1 under the procedure recommended in your ruling of 23 February.
I shall therefore make my submission briefly and ask you to be prepared to receive fuller representations on it privately. Meanwhile, the Bill could go on its way without prejudice to the fundamental procedural issue involved.
There is no doubt that the practice and procedure of the House recognise that there can be parts of Bills to which amendments are out of order. We happen to have an example in a Bill at present starting its course in the House of Lords, the Civic Jurisdiction and Judgments Bill. That Bill is intended to give legal force in this country to international conventions on the subject. The texts of the conventions are set out in schedules. Clause 2 of the Bill refers to the conventions as such and indeed goes so far as to say—so far as I know using this formula for the first time—that the texts are set out in the schedule “For convenience”.
Another example is the Diplomatic Privileges Act 1964, which gave effect to some of the articles of the Vienna Convention on Diplomatic Relations. The articles in question were set out in a schedule, and section 2 of the Bill said: the Articles set out in Schedule 1 to this Act (being Articles of the Vienna Convention …) shall have the force of law”. Clearly, it would not be sensible for the House to allow an amendment to be made to the text set out in the schedule 288 in such a case. The text is set out in the schedule really only for information. It could be referred to by its title only. The text has its own independent existence apart from being in the schedule, and is recognised in the text of the Act as having that separate independent existence.
“Erskine May” recognises this situation at page 523, where the relevant passage reads: When a Bill is introduced to give effect to an agreement or to confirm a scheme and the agreement or scheme is scheduled to the Bill as a completed document, amendments cannot be made to the schedule”. In the footnote to that passage “Erskine May” gives only one precedent, that of the Coal Mines Control Agreement (Confirmation) Bill 1917.
What is significant about that precedent is that the agreement in question was reached by parties outside Parliament and that the Bill referred to the text in the schedule as an agreement, having its own independent existence, apart from being set out in the schedule. The Chairman, for that reason, ruled that any amendment on the text of the schedule was out of order. I understand, from our procedural advisers, that a precedent which has been thought relevant and to justify the present case, is the Irish Free State Constitution Act 1922. In that case the Chairman of the Committee ruled on 28 November 1922 that no amendment to the schedules was in order once the clauses describing them had been passed. The schedules contained the text of a measure passed by the Irish Free State Constituent Assembly in Dublin and the Bill stated that that was what they contained. Such texts clearly had their own independent existence, apart from being set out in the schedules, and the text of the Bill made it clear that it was the independent thing that was to be contained in the schedules.
I submit that all those precedents are good cases of non-amendability, but that the present Canada Bill is not in the same category.
Clause 1 of the Canada Bill refers to The Constitution Act, 1982 set out in Schedule B”. The text of schedule B may have originated in Canada, as we all know it has, and it may be the text as adopted in resolutions passed by the Senate and House of Commons in Canada. However, the clause does not provide that that is what it must be. “The Constitution Act, 1982” means nothing in its own right until this Bill comes into force and they will then mean whatever the text of schedule B then contains.
The Chairman of the 1922 Standing Committee on the Irish Free State Bill, when referring to the document, said: These are specific documents. Any alterations made in them would be inconsistent with the description in clause 1.”— [Official Report, 28 November 1922; Vol. 159, c. 538.] That does not apply in this case because, even if one amended schedule B, the description in clause 1 could still be the same. We often give a title to a schedule in our normal legislation—perhaps: “Housing Construction Regulations”. The clause from which that schedule would hang might say, “The housing construction regulations set out in schedule X, shall have effect for such and such a purpose.” That does not prevent the House from first passing the clause, but then amending the text of the schedule. Unless the text of the schedule has an independent existence and the clause in the Bill makes clear that it is that independent thing that is to be made law, I submit that any schedule is amendable.
289 The rule that in general schedules are just as amendable as other parts of the Bill is, of course recognised in our excellent manual of procedure, a book worth far more than “Erskine May”. It would have been possible for clause 1 of the Canada Bill, I submit, to be drafted in a way that made the schedule unamendable. If clause 1 had said “part X of the resolutions adopted by the Parliament of Canada on dates X, as set out in schedule 8 to this Act”, or something of that sort, the rule would have applied. However, it does not apply to the Bill as it now stands.
In case it is argued that the words of the preamble substitute for that sort of clause when they say: Whereas Canada has requested and consented to the enactment of an Act of the Parliament of the United Kingdom to give effect to the provisions hereinafter set forth”, I respectfully submit that, if those words are effective for this purpose, they would have to mean that any amendment to the Bill—clauses as well as schedules—would be out of order.
However, since we are debating amendments to clause 1, under the guidance of the Chair, we all appear to be estopped from invoking that argument. Accordingly, I submit that amendments to schedule B are not necessarily out of order on the grounds quoted and, in view of the importance of the point—not for this Bill but for future proceedings on other Bills—I invite you, Mr. Weatherill, to reserve the point for determination later, while we proceed with the Bill, since, for the reasons stated earlier, there are perfectly good grounds for not selecting any amendments to schedule B, even though they are in order under the procedures and precedents of the House.
The Chairman I am grateful to the hon. Member for Islington, South and Finsbury (Mr. Cunningham) for giving me a full statement in advance of his point of order. Before giving my ruling at the beginning of the Committee’s proceedings last week, I did, of course, consider all the relevant precedents and, in particular, the proceedings on the Irish Free State Constitution Bill of 1922, to which the hon. Gentleman referred.
The sense and effect of clause 1 of the Canada Bill is to endorse the text of The Constitution Act, 1982, as set out in Schedule B without amendment. If clause 1 is not amended that must, therefore be the end of attempts to amend schedule B.
The hon. Gentleman has submitted that clause 1 does not say in terms that “The Constitution Act, 1982” is the Constitution Act as adopted by the Parliament of Canada. However, as the preamble of the Bill makes clear, Canada has requested and consented to the enactment by the United Kingdom Parliament of the provisions hereinafter set forth.
This request and consent is confirmed by the resolution regarding the constitution of Canada, which was adopted by the House of Commons in Ottawa on 2 December 1981 and which the Minister of State read out to the Committee last Wednesday. This resolution requests Her Majesty, among other things, to lay before the Parliament of the United Kingdom: A measure containing the recitals and clauses hereinafter set forth. These two documents—the preamble to the Canada Bill and the Ottawa House’s resolution—enable me to identify “The Constitution Act, 1982” referred to in clause 1 of the Canada Bill as the constitution passed by the Parliament 290 of Canada. It does not, in my view, follow—as the hon. Gentleman suggests—that the whole of the Bill is made unamendable by the words used in the preamble.
May I stress that the rulings that I have given today and last Wednesday on the proper course of proceeding derive from the way in which this particular Bill is drafted, and no general conclusions relating to constitutional Bills or Bills for confirming treaties or agreements should be drawn from it.
Mr. J. Enoch Powell (Down, South) Further to that point of order, Mr. Weatherill. I respectfully hope, despite the detailed ruling which you have just been good enough to give to the Committee, that you will, nevertheless, decide to avail yourself of the suggestion for further consideration made by the hon. Member for Islington, South and Finsbury (Mr. Cunningham). He performed a service to the Committee by raising more effectually the points which I ineffectually sought to bring to the attention of the House by an amendment to the motion for Second Reading which I put on the Order Paper.
You appealed in your ruling just now, Mr. Weatherill, to the content of the preamble as affecting crucially what was or was not in order in debating the text of the Bill. Indeed, at a later stage, you referred to the drafting of the Bill as including the wording of the preamble. This is obviously a most important ruling and precedent if it is to become such because, since we notoriously do not enact and cannot by our procedures debate, still less amend, the preambles to Bills, we are in an extremely difficult position, if the drafting of the preamble is, in effect, to alter the drafting of the Bill, in the view of the Chair, and thereby certain parts of it become unamendable.
Obviously, therefore, if I may so submit, your ruling, Mr. Weatherill, goes far beyond not only a Bill that might be similar to the present Bill in giving effect to some other pre-existing document, but could modify the rights and opportunities of the House in considering other legislation if the wording of the preamble is held to influence the interpretation of the text of the Bill.
May I respectfully draw attention to one other point raised by your ruling, Mr. Weatherill? Under your own ruling of last week we have been engaged in discussing effectively amendments to the schedule, and had the Committee so decided we would have amended the schedule. I confess that I have been under the misapprehension that in your view the schedule was amendable, but because of the drafting of clause 1 it had to be amended indirectly by amendments to clause 1.
However, unless that is the case—which I did not understand to be the force of your ruling—we seem at one and the same time to be saying that the preamble has declared the document in the present schedule B to be unamendable. Nevertheless, we have discovered, with the assistance of the Chair—the whole Committee was grateful to the Chair for that discovery—a means whereby we might not only debate amendments to the schedule but could carry those amendments if that was the will of the Committee. I hope that it will be possible to take those two points into account.
The Chairman I shall clarify what I said last week, which was that the effective way to seek to amend the schedule is to table amendments to clause 1. That is the ruling that I think was accepted by the Committee, and we have been discussing amendments which have been put down to clause 1.
291 With regard to the other points that the right hon. Gentleman made, I cannot go much further than I have already. It is a complicated matter. I stress to the right hon. Gentleman that I specifically made the point that we are dealing with this Bill alone and that nothing that we have done should be taken as applying to other constitutional Bills or Bills confirming treaties, agreements, and so on.
Mr. Douglas Jay (Battersea, North) Further to that point of order, Mr. Weatherill. I do not wish to prolong this procedural debate, but I am puzzled. If the words in the preamble make the schedule unamendable, how can it become amendable during the discussion of clause 1?
The Chairman I have ruled that clause 1 is amendable. If any of the amendments to that clause were accepted, there would be other consequences.
Mr. J. Grimond (Orkney and Shetland) Further to that point of order, Mr. Weatherill. I should like some clarification on this matter. If the amendments that have been tabled, debated and voted upon had been carried, would the Bill have to be withdrawn, because the House of Commons can either reject or accept the Bill, but it cannot amend the schedule, which is the vital part of the Bill? Therefore, I should have thought that if we passed amendments that are amendments to the schedule the Bill would have to be withdrawn. Is that right?
The Chairman The answer is that any amendments passed by the Committee would be incorporated in the English text of the Bill. The Canadian Parliament would then have to supply a French text of those amendments.
Sir Bernard Braine (Essex, South-East) I am puzzled—a good many hon. Members are probably puzzled—about why it is not possible in considering legislation that is specifically British legislation, whatever the origin of the schedule, to amend the schedule directly, bearing in mind our responsibilities here for the legislation and the fact that certain of the paragraphs of the schedule were not debated at all in the Canadian Parliament. In other words, we are being asked not merely to rubber-stamp a schedule presented to us in the form of a resolution from the Canadian Parliament but to rubber-stamp a schedule some provisions of which have not been properly discussed in the country of origin. That being so, it seems logical, right and parliamentary for us to have the right to amend the schedule should we so desire. Why cannot we do so?
The Chairman Because I ruled when we started the Committee proceedings last week that schedule B was a specific and complete document in itself and that the only way in which we could make amendments to the Bill was to amend clause 1.
Mr. J. Enoch Powell My further point of order arises directly out of the reply that you, Mr. Weatherill, have given to the hon. Member for Essex, South-East (Sir B. Braine). It was most important that you ruled just now that your ruling on the Bill was unique to the Bill since it was from the wording of the preamble to the Bill that you deduced the judgment of which you reminded the House in your reply to the hon. Gentleman.
However, we are in a difficulty despite your disclaimer of a precedent because it is clearly in the interests—or may be in the interests from time to time—of Governments to 292 ensure that documents can be treated as whole documents, and therefore, not in the ordinary sense, amendable. Indeed, a predecessor of yours in the Chair once did a great service to the House by remaining in the Chair throughout the night when the extent to which the European Communities Bill 1972 was amendable was determined in accordance with its relation to an underlying document that was not cited in the Bill itself.
Therefore, it seems to me that we have a difficulty that in future it would be possible for documents of the character of the Irish Free State constitution to be rendered unamendable by the House and only discussable by the House with difficulty, not by a statement to that effect being embodied in the text of the Bill itself, but by something extraneously known, though referred to in the preamble.
Therefore, I submit that the question of precedent is extremely important and that any way in which you can entrench that ruling may be valuable for the future.
The Chairman Perhaps the sensible way out of this complicated and difficult problem might be for me to accede to the request made by the hon. Member for Islington, South and Finsbury (Mr. Cunningham), that we discuss the matter further privately, so that we may proceed now with the Bill.
Mr. George Cunningham I am extremely grateful to you, Mr. Weatherill.
Mr. David Ennals (Norwich, North) On a point of order, Mr. Weatherill. You will recall that in Committee last Tuesday there was a vote on amendment No. 17. At that stage I did not have an opportunity of pressing for a vote on new clause 1. It is my intention to press new clause 1 to a Division. I seek your advice on when that will happen. Will it be today at the end of this sitting or at another stage in Committee?
The Chairman The right hon. Gentleman may have a Division on new clause 1. I cannot say whether it will be today or on another day, but it will be at the end of the debate on the clauses.
Mr. D. N. Campbell-Savours (Workington) On a point of order, Mr. Weatherill. This matter has caused me much concern. There have been three major areas of debate on the amendments to the Bill. The first is Quebec’s veto. The second is the point raised by the right hon. Member for Down, South (Mr. Powell), about our right to patriate to Canada what the Canadian Parliament has produced and the charter of human rights. The third is the question of native peoples.
In the debates in the Canadian Parliament, Mr. Weatherill, there was just as much controversy surrounding another issue, which has also been drawn to your attention in the form of amendments that I have twice placed for your consideration. I have noticed that on each occasion those amendments have been avoided. They deal with the position of the unborn in Canada. I have no desire to provoke a debate about abortion, but I have repeated both inside and outside the House that if we passed the Bill as it stands, we shall be legislating for abortion in Canada I am trying to prevent us from doing that.
As you will know, Mr. Weatherill, I have drawn the attention of many people to that matter. I ask again whether my amendments can be reconsidered for selection, especially amendment No. 64, which is crucial. 293 I do not wish to interfere in Canadian legislation. I am simply trying to avoid the Committee taking a decision that, when it is reflected in court decisions, especially in the Supreme Court in Canada, will strike down existing abortion legislation, as happened in 1973 in the United States following the case of Roe v. Wade.
The Chairman I thank the hon. Gentleman. He knows that I did not select his amendment last week, but promised to give it further consideration. I have given it further consideration, and I regret that I cannot include it in a separate group of amendments today. However, it is perfectly in order for him to discuss the matter in the “clause stand part” debate and that is the time when he should do so.
Mr. Campbell-Savours Further to that point of order, Mr. Weatherill. Is it not clear from examination of the Bill that this is the only area where Canadian legal opinion maintains that the Bill could lead to a change in the criminal code which, in this case, is section 251 as carried by the Canadian Parliament? If that is so, is there not a clear duty on the Committee to examine this matter, just as the Canadian Parliament tried to examine it in a truncated debate following assurances from the Prime Minister? Despite defections from the Government party and the wholesale support on the Conservative Benches in the Canadian Parliament, the Government in this case decided to leave the matter as it was in the Bill.
Is there not a moral requirement for the Committee to examine this matter, as we shall be held responsible by coming generations in Canada for changing the abortion law in a way which is unacceptable to the Canadian people today?
The Chairman The hon. Gentleman may be right. That is a question of argument that he must make in the debate. He knows that I have carefully considered the evidence for selecting his amendments, which he kindly brought to my attention. I regret that I could not find it possible to do so. Therefore, I again invite him to keep his remarks until we reach the “clause stand part” debate.
Mr. Campbell-Savours Further to that point of order, Mr. Weatherill. You say that the matter is a question of argument. It is quite clear from every legal opinion in Canada that the British House of Commons is about to do something which is not acceptable to the majority of the Canadian people. This Parliament is being used by some people in Canada to change Canadian legislation. All I am asking—
The Chairman Order. As I have already said to the hon. Gentleman, that may be so, but he must make those points in debate. He has the opportunity to do so and will certainly be called in the “clause 1 stand part” debate. No further point of order can arise out of this matter.
Mr. Campbell-Savours Further to that point of order, Mr. Weatherill. You have said that I can make the point in debate. I believe that the House will be denied the right to express an opinion if the important amendments that I have tabled are excluded from your selection list. My amendments simply allow the Canadian Parliament to make a decision on this matter rather than leaving it to this House of Commons.
The Chairman Unfortunately, the hon. Gentleman is not the first hon. Member who has been disappointed that his amendment has not been selected. I cannot go beyond what I have already said. The hon. Gentleman must make his points on “clause 1 stand part”. No further point of order can arise. I have ruled on it.
Mr. Campbell-Savours Further to that point of order, Mr. Weatherill—
The Chairman No, there is no further point of order on that; I have ruled on it.
Mr. Campbell-Savours On a point of order, Mr. Weatherill—
The Chairman No, not unless it is a new point of order.
Mr. Campbell-Savours On a new point of order, Mr. Weatherill. In the light of the arguments currently raging in Canada about the issue that I have already raised in another point of order, will you, Mr. Weatherill, accept a manuscript amendment from me now to the table for consideration to enable the Committee to vote on this extremely important matter?
The Chairman No. Of course, the hon. Gentleman would be at liberty to call a Division on “clause 1 stand part”. That would be the opportunity for him to do so.
Mr. Kevin McNamara (Kingston upon Hull, Central) In view of what you have just said, Mr. Weatherill, if my hon. Friend the Member for Workington (Mr. Campbell-Savours) calls a Division on “clause stand part,” will not the Division be on the whole of the clause and not just on the particular point which he wishes to make? Is it not the case that what you have made, Mr. Weatherill, is a provisional selection? In view of the strong representation that my hon. Friend has made, and bearing in mind the anxiety of many others on this issue, should you not have the opportunity to reconsider this matter and perhaps call my hon. Friend’s amendments?
The Chairman That is a helpful suggestion, but it has already happened. The hon. Member for Workington (Mr. Campbell-Savours) brought his strong representations to me privately with a great deal of evidence. I considered the matter very carefully. Regretfully, I came to the conclusion that I could not call his amemdments as separate amendments. I have now ruled on that matter and no further point of order on it can arise.
Mr. McNamara With respect, Mr. Weatherill, the Committee has had rulings from you earlier with regard to the preamble and clause 1. In reply to suggestions made to you by right hon. and hon. Members, you have given an undertaking to consider the matter privately and then to come back and make a statement. Could you, Mr. Weatherill, give the same undertaking on this issue, which many people regard as being of ultimate concern—of life and death—and make a statement on that?
The Chairman The previous matter was in no way a parallel one. It was of great complication and I believe that it needed additional thought. This matter, however, is clear-cut. I have examined it in great detail and I regret that I cannot go further than I have already stated.
Mr. Campbell-Savours rose—
The Chairman I must tell the hon. Member for Workington (Mr. Campbell-Savours) that I am sorry but I cannot take any further points of order on this matter.
Mr. Campbell-Savours On a point of order, Mr. Weatherill—
The Chairman Order. I can take no further points of order on this matter.
Mr. Campbell-Savours Much of the difficulty in which we now find ourselves—certainly I and, I am sure, also those who genuinely believe that this matter should be debated in the House—stems from the fact that we were told that the Bill could not be amended. We were also told that the Canadians would take exception to our seeking to amend it. I believe that hon. Members are being used, because the Canadians, in trying to impress on the British Parliament that we should not amend the Bill because it would be seen as an affront to Canada, have included provisions which, when they are accepted in the courts and the Supreme Court in Canada, will lead to administrative change. In many ways, therefore, this Committee is being held over a barrel.
The Committee has either the right to amend or, at least, the right to debate and to push its amendments to a Division. Therefore, I ask you, Mr. Weatherill, again to reconsider. I ask you again whether you will consider a manuscript amendment in the light of the protests expressed by my hon. Friends. I am sure that others would protest if there were more hon. Members in the Chamber. I see in the Chamber today people who have been involved historically in this lobby since I have been a Member. I call upon them to express their support for what I am doing, because they know that what is being proposed is wrong. We are about to change legislation in Canada. It is not acceptable that that should be done without debate and Division in this place.
The Chairman I am very sorry. It is not open to me to say what the courts of Canada are likely to do at some future time. I cannot accept the hon. Gentleman’s suggestion because I have already given it very careful consideration. I think that we must now proceed.
We come now to amendment No. 26—
Mr. Campbell-Savours On a point of order, Mr. Weatherill—
The Chairman Order. I must tell the hon. Gentleman again that I am not taking any further points of order on this matter.
Mr. Campbell-Savours On a point of order, Mr. Weatherill—
The Chairman Order. I am taking no further points of order on this matter.
Mr. Campbell-Savours On a point of order, Mr. Weatherill—
The Chairman Order. I must tell the hon. Gentleman that if his point of order is on the same matter again I shall have to ask him to resume his seat.
Mr. Campbell-Savours rose—
The Chairman Order. I ask the hon. Gentleman to resume his seat.
We now proceed to amendment No. 26—
Mr. Campbell-Savours rose—
The Chairman I have asked the hon. Gentleman kindly to resume his seat. I am taking no further points of order on this matter. I make that absolutely plain to him. If he persists, I shall have to ask him to leave the Chamber.
Mr. Campbell-Savours On a point of order, Mr. Weatherill. I feel that it is quite clear that many hon. Members firmly believe that the point that I am raising needs to be discussed and a decision—
The Chairman Order. I am very sorry, but I must now ask the hon. Gentleman if he will kindly leave the Chamber. I am not taking any further points of order on this matter.
CONSTITUTION ACT, 1982 ENACTED 37,001 words cc296-359
BUSINESS OF THE HOUSE 7,623 words, 2 divisions cc359-74
TERMINATION OF POWER TO LEGISLATE FOR CANADA 1,795 words cc374-7