UK, HL, “Canada Bill”, vol 428 (1982), cols 928-941
By: UK (House of Lords)
Citation: UK, HL, “Canada Bill“, vol 428 (1982), cols 928-941.
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Lord Trefgarne My Lords, on behalf of my noble friend Lord Carrington, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Trefgarne.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE LORD ABERDARE in the Chair.]
Clause 1 [Constitution Act, 1982 enacted]:
On Question, Whether Clause 1 shall stand part of the Bill?
Lord Trefgarne I understand that it has been agreed through the usual channels that we should have a short debate on Schedule B stand part. I therefore do not propose to say anything at this point.
Clause 1 agreed to.
Remaining clauses agreed to.
Schedule A agreed to.
Schedule B [Constitution Act, 1982]:
Lord Stewart of Fulham The noble Lord, Lord Trefgarne, said that it has been agreed through the 929 usual channels that there should be a short debate on Schedule B. It was agreed that there should be a debate on Schedule B. I cannot pledge myself, of course, on behalf of my noble friends as to the length of the debate, but nobody wishes to prolong it unnecessarily. We have the peculiar position that Schedule B contains in effect a whole Act of Parliament, so it can be a wide-ranging debate. Schedule B will in fact become the Constitution Act of Canada.
As is to be expected, it begins by the cataloguing of certain fundamental freedoms which citizens of Canada will enjoy. One notices particularly paragraph 2: freedom of conscience and religion; freedom of thought, belief, opinion, et cetera; freedom of peaceful assembly and freedom of association. And the right to life, liberty and security of the person and the right to be secure against unreasonable search or seizure.
There is one omission which noble Lords will notice. There is no quite clear and explicit assertion of the right not to be deprived of your property. Very commonly in constitutions such a matter is set out very plainly indeed. It is true that there is the paragraph: Everyone has the right to be secure against unreasonable search or seizure”. This may be a matter for lawyers to argue. But, if the Government requires, say, one’s land for a public purpose, is that an unreasonable search or seizure? Would you be able, by quoting this paragraph, to prevent the Government acquiring your land? Moreover, nowadays Governments never will put themselves in the position in which they could never acquire a piece of land, because circumstances they cannot foresee may make it extremely desirable in the public interest that they should.
What one would expect is an assertion of the right not to be deprived of one’s property except after a due legal process and with proper compensation. Rather surprisingly, an explicit provision of that kind is lacking. It is the more remarkable as we have good reason to suppose that the Canadian Government, both the federal and the provincial Governments, will in the future be desiring to acquire lands now regarded as belonging to Indians. In view of the amount of feeling that there is on this whole question, one would have expected the Act to contain an explicit provision that people, whether they be in origin European or of the aboriginal peoples of Canada, cannot have their land taken away from them unless there is good reason, a legal process and proper compensation.
I wonder whether the noble Lord, Lord Trefgarne, can help us at all about this, because it is a puzzling omission. Many of us, I think, would be reassured if he could say that he has good reason to suppose that despite this rather surprising omission of wording the lands of the Indian peoples will be protected.
Lord Trefgarne I am afraid I have to say that I really cannot help the noble Lord. As was explained and repeated during the Second Reading debate by myself, by my noble friend Lord Carrington and by many other noble Lords who spoke (although I recognise that there were contrary views expressed as well), this is not a matter for the British Government. The inclusions or omissions in the Bill of Rights which 930 we are to attach to this Bill at the request of the Government of Canada are their own work. The British Government had no part in the framing of it and therefore have no responsibility for what is included or omitted.
Lord Morris Another point that was made very clearly on Second Reading was the general agreement that these matters were not, as the noble Lord has just suggested, a matter for the British Government; I think everyone would agree with that. But, manifestly, it is a matter for the Parliament of the United Kingdom and for the Parliament of Canada. Any Government of whatever colour who are in power in the United Kingdom form an integral part of Parliament. In other words, the Government are wearing two hats. I quite appreciate why the Government find difficulty in these matters, but it is as part of the Parliament of the United Kingdom that the noble Lord opposite is referring to them. I wonder whether there is any comment on that?
Lord Jenkins of Putney Perhaps I could give my noble friend Lord Stewart of Fulham a word of support. It has become known that the Canadian Government are preparing legislation, which is already in draft, which gives either the federal or, under certain circumstances, a provincial government the right to expropriate. There appears to be no appeal against this and no provision for an independent decision on the question of compensation. This is rather worrying. Although none of us would wish to divide over, or oppose, the passage of this Bill, or unduly hold up the passage of the Bill through your Lordships’ House, I believe it ought to be made known to the Canadian Government that a number of us are rather worried by these developments and hope, when the Government do achieve the responsibilities which rest upon them in this Bill, that they will exercise them with consideration for what has been said in both Houses about the rights of the original inhabitants of that country.
Lord Trefgarne In answer to the first part of the intervention by the noble Lord, Lord Jenkins of Putney, I will merely say that I have nothing to add to what I said in reply to the noble Lord, Lord Stewart of Fulham. In response to the second part of the noble Lord’s intervention, I would refer him to my own words during the Second Reading debate of this Bill last week. I shall read my own words from column 824 of Hansard for 18th March: While the Government fully respect the right of noble Lords to express their views on subjects about which they feel strongly, I do not think it would be right for the Government to put these views to the Canadians who are in any event, as I have said, well aware of them”. I was, of course, speaking in response to an intervention by the noble Lord, Lord Brockway. I went on to say: Whatever our private views, it is not a British responsibility. Canadians have acknowledged that it is their responsibility: it would be an affront to suggest that they will not take that responsibility seriously”. 931 In reply to my noble friend Lord Morris, I will tell him that my answer from this Dispatch Box was on behalf of Her Majesty’s Government and, although I am proud to be a Member of your Lordships’ House, it is in that capacity that my words must be judged.
Lord Mishcon I wonder whether I may refer to the noble Lord the Minister to the time-honoured expression that precedes any one of our Acts of Parliament? It is incorporated, as is the proper usage, in the Bill now before this House. Perhaps I may be allowed to read the time-honoured words which occur in this Bill: Be it therefore enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same…”. Unless words are meaningless, is it not a fact that although in this House we are honouring the sovereign rights of Parliament in Canada, we are entitled to tender advice in this House to Her Majesty through the present Government? And are the Government not entitled to pass on to the Canadian Government the fact that, although this Bill has been passed because it was our duty to pass it, the view was tendered that this House did hope that, with the glorious history of the Canadian people linked with our history and safeguarding the same principles of liberty and justice, the rights of the Indian people would be properly protected in this connection? It is behind this paragraph that I support the observations made by my noble friend Lord Stewart of Fulham.
Baroness Gaitskell I am given to understand that all the different countries in Canada have sovereignty except the Indians. The Indians are still a colonial people. Whether or not we are going to be very fussy as to whether we can give advice to the Canadian Government and to Mr. Trudeau—we are suddenly getting very prim and fussy about this—is it not true that everyone in Canada has sovereignty except the Indian people? I understand that that is the crucial issue, and surely we can express an opinion on that?
Lord Stewart of Fulham I had rather hoped that the noble Lord, Lord Trefgarne, was going to rise again. I do see his difficulty; the view that he has expressed, that he is a spokesman for the Government. But, after all, the debate on Second Reading was enlivened and enriched by contributions from noble Lords who knew Canada well. I wonder whether I may express the hope, in view of the unfortunate gagging of the noble Lord, Lord Trefgarne (which we understand), that there may be those who have knowledge of Canada and who are able to give us some reassurance on this matter. It is an important point. We know that this question of land ownership, particularly as it affects the Indian peoples, is important and pressing in Canada, and there is this rather surprising absence of any constitutional safeguard. I hope that we may be able to have a reassurance from some quarter.
Lord Morris This is purely supposition, but I suspect the reason why there is no direct reference within the Charter of Rights, within the statute of liberties, in this enactment is that if there was this protection 932 enacted, there would be no way in which the Government could discriminate between the property of the aboriginal peoples and the property of the European immigrants.
Lord Somers I consider that one feature of this Bill which is regrettable, not to say disgraceful, is the fact that it has been prepared and is being rushed through Parliament before any consultation whatsoever with the Indians themselves. From a Government who have made so much fuss about the rights of indigenous peoples, particularly in Africa—as we have seen, sometimes with regrettable results—I believe this is a shocking example of complete insincerity. I believe it is likely to lead to serious trouble in Canada.
Lord Houghton of Sowerby It seems to me that we are rapidly reaching a position of complete frustration in your Lordships’ House over this Bill. It seems all we shall do is beat the air, unless we resolve to do something. If we resolve to do something, it will be either not to pass the Bill or to amend the Bill. Otherwise we are sending messages across the Atlantic to the people and Government of Canada of which they may or may not take any notice. We have been told by the Minister who has just spoken that at any rate Her Majesty’s Government will not act as postmen. The Canadian Government are familiar with a good deal of what has been said already and can probably anticipate much of what is to follow. Have we not to recognise that the aim of the Canadian Government has been first and foremost to obtain wide enough consent among the Canadian people and the provincial governments to enable this request to be made? They have been waiting for this opportunity and this consent for a long time.
It has been open to the Federal Government to make this request long ago, had they obtained the necessary degree of consent of the provincial governments and people to do so. It is only now when they have reached sufficient agreement to enable the Federal Government to come to the Westminster Parliament and say, “Grant our request to patriate the British North America Act 1867”. In doing that, it is only of secondary importance, I submit, to the Canadian Government that they should attempt to give this Parliament enough assurances to persuade us to grant that request with willingness and peace of mind. They do not think it matters to us what they do as long as they have got enough consent to enable the Federal Government to request us to do what they are now asking us to do. In other words, we have been waiting to do their bidding for a century, and they have just made up their minds that they can ask us to do that bidding—and here it is: this is the Bill before us.
I think we are going to be in difficulties throughout the Committee stage of the Bill, because the Canadian Government, I have no doubt, regard the British North America Act 1867 as an anomaly peculiar to Canada, not shared by Australia, New Zealand, least of all by South Africa. This is really the last remaining formal and flimsy tie with the United Kingdom Government, which should be brought to an end the moment the Canadian Government have the authority from the Federal Parliament and people to make their 933 request. If that is the position, then we can, I think, reconcile ourselves, resign ourselves, to expressing our anxieties our faith if we have any, our hopes if we can muster them, that all will be well with Canada and with its people in the future. Apart from that, it seems to me our function can only be to embark on a step which would have grave constitutional consequences and which your Lordships’ House would shrink from taking, however strong the grounds for doing so.
Lord Shinwell May I ask whether we are having another Second Reading debate? It would appear to me that we are reaching that point. Issues have been raised that have been debated over and over again in another place and in your Lordships’ House. I have read every part of the debate and listened to much of it in your Lordships’ House. To go back many years to the Statute of Westminster, I recall how controversial it was at the time, but, if my recollection of what happened is correct, I can recall that we agreed that so far as certain of our dependencies were concerned they were to have complete sovereignty. That is what I understand we have decided by accepting the Second Reading of this Bill. As for frustration, I must confess I do not feel in the least frustrated about what should be done.
What is the position? I do not suppose there is a single Member of your Lordships’ House who has not some sense of emotion about the situation in which the Indians find themselves in Canada, just as we have a sense of emotion, although they are not dependencies, about the condition of the minorities in the Ukraine and elsewhere in the Soviet Union, or about the condition of the Aboriginals in Australia, or about the condition of and very often the protests from Maoris in New Zealand; nevertheless, we do not propose to interfere with the sovereignty of any of those countries.
There is a certain element of emotion, and I understand it. How can we refrain from compassion about people who feel themselves inferior? It is terrible to feel inferior. Everybody wants to be superior, or at any rate to approach as near to it as one can. Therefore, it would seem to be that, however emotional your Lordships may be about it, we cannot refrain—and I say this without any frustration or hesitation—from consenting to Canada having complete sovereignty over all its affairs, and we can only leave it to the Canadian people to decide how they are going to apply that compassion. The only way we can comply is to leave them to their own devices; surely it cannot be otherwise.
If there is one Member of this House for whom I have respect—I have respect for most people, of course, but there are some exceptions—it is my old friend and colleague Lord Stewart of Fulham. I have a very high regard for him and I have had respect for his observations and interpolations in the course of debates both in another place and in your Lordships’ House. But I think he is going just a little bit too far. I go so far as to say this about him. I always knew him to be logical but never really emotional. This is a new chapter in his history, if he will forgive me for saying so.
934 I cannot appeal to your Lordships’ House—what right have Ito appeal?—but I can point out that we have now given the Bill its Second Reading, and the other place has done so. I would remind your Lordships how often the noble and learned Lord the Lord Chancellor has said to us that even if we sometimes disagree with the other place we are not to oppose them on Second Reading. What is our position in respect of another place? I would say that when we disagree with the other place and regard them as provocative and mischievous I can understand the concern; but when we agree with them it would seem to me that our situation, for what it may he worth, is superfluous. I think it is superfluous in this respect in that the Bill has been accepted. We have accepted it. We have made our comments of a compassionate character. Leave it where it is.
Lord Home of the Hirsel I understood from the noble Lord, Lord Stewart of Fulham, that he wants us to impress upon the Canadian people two principles. The first is that the ownership of property should not be changed without the due processes of law. The second is that there should be proper compensation if property is taken over. I recall, rather wryly, that all my political life I have been trying to impress those principles on the Socialist Party in this country. I can only say I am very glad that they have been converted. But I hope we shall not feel that Parliament should lecture the people of Canada on these principles; they, I think, understand them as well as we do.
Baroness David It is obviously not our province to give advice, but I think that the later stages of the Bill give us a chance to find out exactly what the Bill means. I think that after Second Reading some questions were left unanswered, and it is within our province now to try to find out exactly what the meaning of certain sections is. I should like to direct my attention for the moment to Sections 25, 27 and 35. The noble Lord, Lord Renton, and the noble and learned Lord, Scarman, gave what seemed to me to be excellent descriptions of those sections. I want to know whether their opinion of what is in those sections is accepted by the Government and whether we can assume that that probably is what the Canadian Government would accept, too.
I should like to read what the noble and learned Lord, Lord Scarman, said as regards Section 25 because what he said was put so much better than I could possibly do it. He spoke first about Section 35 and the use of the words “existing rights”, and then he said: What do we find in Section 25? We find a most useful indication as to where those existing rights are to be found. In the Proclamation of 1763, and in the land rights of the rights of the Indians to land settlement. If one just takes this constitution as it now stands and assumes it to be under discussion in a court of law, there cannot be any doubt that that is being protected in Section 35. If there were any doubt, Section 25 throws the most valuable light upon it. And I have little doubt that the Canadian courts would pay heed to the eloquent speech of my noble and learned friend Lord Denning…in giving the leading judgment in the English Court of Appeal, where he described the Royal Proclamation, which is expressly mentioned in Section 25, as a Bill of Rights’; not as a treaty. Courts of law municipally are rarely concerned directly with treaties, but as an Indian Bill of Rights, not to be altered without the consent of the 935 Indian peoples, there is much in those two sections which, I would suggest to the Indian peoples, contains much to give them confidence for the future.”—[Official Report, 18/3/82; col. 796] I want to know whether Her Majesty’s Government agree with that description of what is in Sections 25 and 35. Do they accept that “existing rights” means what the noble and learned Lord has said? Why was “existing” put in? Can they give us that explanation? Are there some rights which have gone, which no longer will be respected? Can the Minister please tell us something about that?
Lord Trefgarne These provisions were drafted in Canada, by Canadians, for Canadians. I regret that I cannot help the noble Baroness further.
Lord Morris The noble Lord, Lord Shinwell, made a very important point when he suggested that Second Reading had, indeed, passed and that we had had the opportunity to make speeches at Second Reading. However, he said implicitly that this debate is liable to descend into total chaos unless it is ordered very carefully indeed on the debate as to whether Schedule B shall stand part. Perhaps I may, with all due humility, suggest that, having dealt with the point of property rights generally, as raised by the noble Lord, Lord Stewart of Fulham, we could then pass on to the next provision of the Bill, which I assume-I do not know—will be Section 25, and debate that as and when we get through the schedule. I think that we will not have any answer from Her Majesty’s Government at all because they appear totally incapable of wearing two hats simultaneously which, on other occasions, they seem to have had no difficulty whatever in doing. I appreciate their difficulties as far as this is concerned, and I appreciate that there are problems here. But the fact is that Parliament has raised these questions in both Houses, and that they can only sit there looking embarrassed and attempt to wash their hands of these particular issues is something which I find, at the very least, disturbing and extremely ignoble.
Lord Trefgarne I am sorry that my noble friend feels that way, but I have to tell him that the doctrine of collective responsibility is such that I cannot speak from this Box except as a member of Her Majesty’s Government.
Lord Stewart of Fulham Surely, even subject to that limitation, it is possible for the noble Lord, Lord Trefgarne, to answer this simple question? He was not asked something profound about the Canadian constitution, but whether he agreed with what the noble and learned Lord, Lord Scarman, said on Second Reading. Surely he could screw up his courage and tell us whether he agrees with that or not, because it would help us to get on.
Lord Trefgarne The noble and learned Lord, Lord Scarman, of course expressed a detailed and considered view on certain of the provisions of this Bill, and for me to agree or disagree with the noble and learned Lord would be to express a view upon the merits of these proposals. I decline to do so.
Lord Morris The problem with Section 25, as was raised on Second Reading, is that it is largely a clause of interpretation and construction and is in no way itself a guarantee of rights. Moreover, it is only a clause of interpretation and construction as regards other provisions in the Charter of Rights—that is Sections 1 to 34 inclusive—and not as regards Schedule B as a whole. This position was made very clear in the Canadian Parliament when the Parliamentary Secretary of State to the Minister of Justice, Mr. Irwin, when referring to this clause said: In other words, if they have rights, then they will not be extinguished through the Constitution”. The tragedy is that this cannot be substantiated, and certainly not as respects Section 25, for under Part V which, as your Lordships will know, is the procedure for amending the constitution of Canada, it is perfectly possible for any part of the constitution to be altered or repealed, including Section 25 itself, without any consultation whatsoever with the aboriginal peoples of Canada.
Additionally, Section 25 is drafted in vague terms, which echo Mr. Irwin’s words, “if they have rights”. For example, it refers to “any” aboriginal treaty or other rights, and “any” rights or freedoms which have been recognised by the Royal Proclamation and “any” rights or freedoms that “may be” acquired by way of land claims settlement. There is no admission or concession of rights—simply that, if there are any, then they will survive other provisions in the Charter (in other words, the first part of the Bill) and would, for example, supersede the clause affecting, for instance, multicultural heritage.
In the other place amendments were tabled to try to rectify this position. They were very simple and they are part of the record. They were drafted to provide that the line accords with Article 2 of the International Convention on Human Rights so when the Charter was interpreted the international convention, in its application to aboriginal peoples, would take precedence over provisions in the Charter and remove the inference that aboriginal rights are merely possibilities.
Lord Hankey: I want to support the noble Lord, Lord Trefgarne, in this matter. I really think that your Lordships must recognise the longevity of this question. It has been going on for years and years and years. At last Mr. Trudeau with, I think, great political genius, has succeeded in settling a sort of agreement among the provinces, some of which have been quite adamant in maintaining their rights on this subject, and we have the compromise before us today.
It is no good thinking that the noble Lord, Lord Trefgarne, can get up and explain what the Canadian Government think or what the province of Quebec thinks or anything like that, or even, with any safety, what the Indians think, although the Indians have been here and have handled their affairs, I think, very ably; and I have been interested to attend some of their meetings.
The fact is that this Bill has been presented to us and at last we are in a position to get rid of what is a major anomaly in one of the constitutional factors of the British Commonwealth. For goodness sake, do not let us go busy bodying about and endanger the whole 937 thing by pressing the noble Lord, Lord Trefgarne, to make statements which he really cannot reasonably be asked to make and would not have the right to make even if he wanted to do so. This Bill is before us to settle.
I have been in touch with the Canadian High Commission as regards the Indians and I can confirm the fact that the Indians now have the federal franchise. I think I am also right in saying that they have the franchise in every province as well. So they take their place as citizens of Canada, and I do not think that the Canadian Government or the provincial governments are likely to be unreasonable or unjust in this matter. We must certainly hope that they will not be as regards property rights. Therefore, I venture to recommend your Lordships to let this Bill go through.
Baroness Gaitskell Before the noble Lord sits down, I should like to ask him a question. In spite of what he says, do the Government have to support some colonialism in the Canadian Government? That is the question to which we have to apply ourselves.
Lord Hankey I always listen carefully to what the noble Baroness, Lady Gaitskell, says because she has a great sense of justice. But, if I may say so, I think that the word “colonialism” has a sort of taint to it. It needs to be made more precise. I do not honestly think that there is colonialism; that is why I ventured to confirm with the Canadian High Commission that Indians have the provincial and the federal franchise as voters, and they take their place in the great Canadian community—and it is a very great one.
Lord Campbell of Alloway May I respectfully ask your Lordships’ Committee whether your Lordships see any advantage or profit in continuing this debate when it is perfectly plain that my noble friend the Minister cannot reply on behalf of the Government, and when it is equally plain that much of what has been said by your Lordships is apt to cause most severe misunderstanding?
Lord Gladwyn We should like to associate ourselves with what the noble Lord has just said.
The Chairman of Committees The Question is—
Lord Stewart of Fulham I do not think that we can get rid of the Bill quite as quickly as that.
Several noble Lords Why not?
Lord Stewart of Fulham If I am allowed to, I shall explain why I think so. We understand the difficulty of the noble Lord, Lord Trefgarne, though I am bound to say that I think a number of my noble friends would find it easier to understand his difficulty if, in his manner, he showed a little more understanding of the very genuine feeling that animates the points that are being raised in this Bill.
We are asked to consider the injustices that are being done to Ukrainians and to many other minorities throughout the world. If, by some quirk of history, we had to pass legislation which dealt with the position 938 of minorities in difficulty in any part of the world, we should almost certainly feel entitled to talk about it.
On this side of the Committee there is no suggestion that we are trying to prevent the passage of this Bill. We have only been discussing it a little over half an hour. It is a Bill of great importance. The schedule is an exceptional schedule, containing a whole Act. If I may say so to my noble friend Lord Shinwell, that is why the debate is bound to resemble a Second Reading debate—because this is a very unusual schedule.
I also think that noble Lords have forgotten the attitude that Mr. Trudeau himself had towards the possible treatment of this Bill by this House. He said, and is on record as saying, that the British Parliament will pass it holding its nose. He did not suggest that we should do it holding our tongues. I think that he was too pessimistic, because that phrase implies that we should pass the Bill with distaste. We are not doing that. I believe this to be a most valuable Bill and most necessary in the course of history, but I (and a great many others) am simply taking the opportunity—and not doing any more than Mr. Trudeau apparently expected us to do—to express certain anxieties. That is an entirely legitimate process. If the noble Lord, Lord Trefgarne, feels—and I can understand this—that he cannot answer, there are those who are acquainted with Canada whose contributions to the debate would, I think, be valuable. For example, I accept the partial reassurance we were given about the fact, of which most of us were aware, that the aboriginals in Canada possess the franchise. But they are still a minority. There is still a question of what may happen to them.
Let me give one further example which arises from a later part of the Bill. In Clauses 32 and 33 and again in Clause 38, there is this very remarkable constitutional provision that the Canadian Parliament or the legislature of any province can pass Acts which conflict with the statements of fundamental rights, despite what the constitution says. It is a very unusual provision in any constitution, and it will be interesting to see how it works. Furthermore, if the constitution is amended, in certain circumstances it is open to any province to opt out of the amendment.
However, all these rather exceptional powers are possessed by the provinces; they are not possessed by any representatives of the Indian people; that is to say, if the parts of the constitution which explicitly guarantee Indian rights were removed from the constitution under the amending procedure, it would not be open to the Indian community to say—as a province could say—”This alteration to the constitution does not apply to us”. In that respect, they would appear to be put in an inferior position compared to the other inhabitants of Canada. I do not accept the proposition that it is unreasonable even to mention this matter in this Committee. If the noble Lord, Lord Trefgarne, feels that he cannot take a further part in the proceedings, I think that there are some who can.
However, it ought not to be accepted that those of us who are concerned about certain aspects of this Bill want to wreck the Bill. We do not. We know very well that very shortly the Bill will become law. We have no objection to that. However, it would be interesting to see whether more constructive answers could not be made than have so far been advanced. 939 May I, without offence, say this to the noble Lord, Lord Home of the Hirsel? He is profoundly a Scot; I, only by descent and not by upbringing. But it is well known that the Scottish nobility pursued the process of acquiring land without compensation from the peasants for several centuries, after which they became strong champions of the rights of property.
Lord Polwarth I am no expert on the technicalities of this measure, but I am one of the Scottish nobility. In addition, however, I have had the privilege of knowing Canada and the Canadians for 48 years. I go there regularly. I have been there at least three times during the course of the debates on this measure in Canada. I should simply like to say that the more I listen to what we are saying this afternoon, the more actuely embarrassed I am becoming about what will be the reaction of our Canadian friends.
Of course we all have deeply held views, and I fully respect them in every way. But the crux of this is that surely Canada is a nation that is fit to order its affairs and arrange its own constitution. Surely, all we are being asked to do is to acknowledge that fact and let them get on with it. I see no way in which anyone on behalf of our Government can answer for the detail of their constitution. Surely they are a people of sufficient maturity—I know they are—to respect common human rights. I hope that we shall not now go too deeply into the mire. The views have all been aired at different stages, and I hope that we shall now let the Canadians get on with the job in the way that a great people like them are so capable of doing.
Lord Jenkins of Putney Before the noble Lord, Lord Trefgarne, replies, may we ask him, not necessarily to explain the Bill (appearently he cannot do that), not necessarily to say anything against it, but simply to say a few words for it before we come to the end of the proceedings?
Lord Trefgarne I understand the anxiety of noble Lords on these matters, but the questions that have been put to me during the course of the debate this afternoon have, in general—in fact, I think, exclusively—been ones of interpretation. I believe your Lordships generally agree that it would not have been right for me to offer interpretation of what is essentially Canadian legislation, albeit, by virtue of an historical anomaly, currently passing through your Lordships’ House. The final word on interpretation of this legislation will therefore lie in due course with the Canadian courts, and I hope your Lordships will forgive me therefore for not offering further elucidation this afternoon.
Lord Mishcon Before the noble Lord the Minister sits down, I wonder whether he would permit this Committee to abandon this matter with some reassurance and some quietude of mind? I think all of us will accept what he has just said. It must be his decision. Personally, I understand it, but questions of interpretation are not for Her Majesty’s Government here; they are for Her Majesty’s Government in Canada and for the courts in Canada. We accept that because he has just said it, and we have to accept it. I personally would have accepted it even without his saying it.
940 What I ask the noble Lord—what other noble Lords are asking him on this side, and I think in their hearts possibly on every side of the Committee—is this: would he, in his own inimitable, diplomatic and tactful manner, pass on to Canada’s very reputable and honoured representative in this country the deep concern that was expressed in this House both this afternoon and on Second Reading? If he would merely say that he would do that, this debate would not have been in vain and on all sides of the Committee we could pass to other clauses in this Bill, possibly with great speed.
Lord Shinwell May I ask a question before the noble Lord the Minister replies? Suppose we decided, as we have decided, to accept the Bill, but to add an addendum in the form of a letter, or an instruction, or a suggestion, or a piece of advice to the Canadian Government—apart from accepting the Bill, and agreeing to Canada’s sovereignty—that they should do certain things in accordance with the wishes of Members of your Lordships’ House about the Indian section of the Canadian community, what would the effect be in Canada? It would start the whole thing up again. Surely that is obvious. But I should like an answer to that question.
Lord Shepherd In my time in your Lordships’ House I have spent time on quite a number of constitutional Bills bringing colonies into independence. I cannot recall any previous occasion when your Lordships’ House spent so much time in Committee on a constitutional Bill. Canada has been an independent member of the Commonwealth, I was going to say for many years, but it is for very many years. It has been a leader in many things, certainly in the fields of human rights. I can understand the anxieties, but there are anxieties—are there not?—in any country in regard to minorities. The minorities problem exists even within our own state. Legislation itself cannot deal with it. I share the view that has already been expressed that it is a matter for the people of Canada through its Parliament to deal with the anxieties which quite genuinely have been expressed here this afternoon.
However, I do not believe that the way we are conducting this Committee stage is conducive to our own relations with Canada or, I believe, in regard to dealing with the position of the minorities in Canada. I am sure, like many other noble Lords, that there has hardly been a day when I have not received some form of paper from one organisation or another, one state, one province or another. It is not as though we have not been made aware of all the problems and anxieties of this legislation.
This legislation could have been here last year. The Prime Minister of Canada thought it right—and I believe he was correct—to take a slower course, and it is now before your Lordships’ House. This is a Bill that ought to be proceeded with without much further discourse. I believe that further discourse is more likely to be counter-productive to what those who are making their case want.
As I understand it, we are in Committee, and there are no amendments. I have been Leader of the House, and I have a Leader of the House sitting beside me. What do we do? How do we move out of Committee stage? Is there a Motion to do that which could now 941 be moved?—not “That the noble Lord be no longer heard” or that we should proceed to next business, but perhaps that the Report be now received; I am not sure of the phrase that would be applicable. Perhaps the Government Chief Whip or the Deputy Leader will give us some assistance. It is entirely up to your Lordships’ Committee, but my own feeling is that the sooner this Committee stage is concluded the better. If that is the will of the Committee, then those who have more recent knowledge than I have perhaps might move the necessary Motion.
Schedule B agreed to.
Preamble agreed to.
House resumed: Bill reported without amendment; Report received.
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