UK, HL, “Canada Bill”, vol 428 (1982), cols 1065-1073

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Date: 1982-03-25
By: UK (House of Lords)
Citation: UK, HL, “Canada Bill“, vol 428 (1982), cols 1065-1073.
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3.25 p.m.

Lord Trefgarne My Lords, I beg to move that this Bill be now read a third time. We are now nearing the end of the process of consideration of this Bill in your Lordships’ House. As your Lordships know, the purpose of this legislation is to give effect to a request in relation to the Canadian constitution which was laid before Parliament in December last year on the basis of a Solemn Address to Her Majesty from both Houses of the Canadian Parliament. This procedure follows a constitutional precedent stretching back for well over a century during which the Parliament in Westminster has passed on no less than 14 occasions Acts amending the Canadian constitution.

This occasion is, however, a very special one. The Bill now before us will be the last of the line, because, as your Lordships are aware, it will transfer the responsibility for amendment of the Canadian constitution to where it rightly belongs, namely, to Canada itself. This is, therefore, if I may say so, an historic and happy moment.

I am aware that the Government have asked your Lordships to deal with this Bill at some speed, and I am grateful, therefore, for the forbearance which your Lordships have shown. The Government have taken the view, shared, I believe, by many of your Lordships, that since this proposal for legislation has been put to us at the request of and with the consent of the Canadian Parliament, and with the support of the great majority of the provinces, it is our responsibility to enact the legislation in the form in which it has been requested.

While the Government would not endorse some of the opinions which have been expressed, we believe that noble Lords have every right to state the views which they hold strongly. Many noble Lords have expressed the hope that the Canadian Government would be made aware of their concerns at various aspects of the Bill. As your Lordships may know, the Canadian Minister of Justice, who has been responsible in Canada for matters connected with the patriation of the constitution, has paid two visits to London during the consideration of the Bill in this House and in another place. I and other members of the Government had opportunities to discuss the concerns which noble Lords have raised with M. Chretienne during his visits, and at other times with representatives of the Canadian Government. I can assure your Lordships that the Canadian Government are very well aware of all the points made in the debates on the Canada Bill in the British Parliament.

This is a very important Bill because it marks the formal removal of an anomalous qualification to the exercise by Canada of its independence, an independence which de facto stretches back for many decades. The Bill is important, too, because with its passage an uncertainty and an area of possible tension are removed from our relations with a major Western and Commonwealth friend. It is important, finally, because, with the removal of this anachronism, both countries will be free to concentrate on developing the host of shared interests. I believe that there is a profound friendship between our two countries which can only benefit from the termination of our somewhat uncomfortable 1066 constitutional responsibility. Therefore, I invite your Lordships to give this Bill a Third Reading.

Moved, That the Bill be now read a third time.—(Lord Trefgarne.)

Lord Stewart of Fulham My Lords, I think we have all been glad to hear the speech the noble Lord, Lord Trefgarne, has just made. This is a Bill of great importance, of great interest, both to us now and to historians. We have not always agreed as to how we should approach it, but all of us have had the oppotunity to treat it in the way which seems consonant with our duty. I appreciate the way in which the noble Lord has handled that aspect of the matter today.

May I say also that we are particularly pleased to hear of the conversations he has had with the Canadian Minister of Justice. I do not think there is any more to say than that in my judgment we should now send the Bill across the Atlantic with good wishes to the whole realm of Canada, and good wishes, to use a phrase from the Bill, for the preservation and enhancement of the multi-cultural heritage of Canadians.

Lord Gladwyn My Lords, we, too, would like to associate ourselves with what the noble Lord, Lord Stewart of Fulham, has just said. In our view, there is nothing more which can be said on this Bill which has not already been said. No amendment is admissible, as the Government throughout have said, and we entirely agree with that. We therefore think that the decision should now be taken. It is a great occasion and we certainly hope that the decision will be arrived at without further delay.

3.30 p.m.

The Earl of Gosford My Lords, I would like to take this opportunity to congratulate a great country on reaching a position not only where it can cast itself adrift in true independence, but also for drafting a charter of rights and freedoms with so many excellent clauses, the nature of which is lacking in many countries. I congratulate Mr. Trudeau for making that start. However, if every cloud has a silver lining, in this case the silver lining has a cloud. This is an historic moment, and, until this Bill receives its Third Reading this afternoon, jurisdiction over the Canadian constitution remains here in this House.
At the Committee stage of this Bill on Tuesday, I witnessed noble Lords being frozen out of any kind of relationship with the matter at hand. I myself had prepared points to speak to earnestly in Committee, only to find that the feeling of the House excluded debate and no dialogue was possible with Her Majesty’s Government. That has left me with no alternative but to speak today.

Many wide-ranging points were made at the Second Reading debate last week and I associate myself with what was said by many noble Lords and Baronesses, as will become apparent. However, I am most disturbed that many in this House have apparently closed their minds to the issue of aboriginal rights. I am glad that the noble and learned Lord, Lord Scarman, mentioned, on Second Reading, our legislative responsibility. On 14th February this year Professor 1067 James Fawcett, three times President of the European Commission on Human Rights, stated: The deep concern of the Canadian Indians is then that the Bill, and particularly its Charter of Rights and Freedoms, does not adequately protect their rights or secure their future status…The United Kingdom Parliament cannot treat the enactment of the Bill as only a procedural or constitutional formality”. The noble and learned Lord, Lord Scarman, also made an eloquent plea on Second Reading that Canada should take a look at the lack of provision at subsequent conferences for the participation of the aboriginal peoples. He also expressed the hope that Canada will look as well at the lack of any safeguard for the native peoples against amendment of the constitution without their consent. I trust that the Canadian Government will listen to the words of this most eminent jurist and take the opportunity, after patriation, of using the amending formula to ensure that Indian consent and effective participation are guaranteed in matters which affect them.

It is clear that all sides of the House agree that repatriation of the Canadian constitution is essential, but it is incumbent on us to repatriate without loose ends. I am most disturbed that Her Majesty’s Government—having been reassured that nothing was going to delay the passage of the Bill, by virtue of the fact that no amendments were tabled at the Committee stage—by their attitude prevented debate on these very important clauses. Nearly 13 hours of debate in another place at Committee stage but only 50 minutes of freeze-out in this House is not going to enhance the picture of magnanimity which your Lordships’ House would wish to present to the world.

Why does this House not want a proper airing of the facts which would have been entirely appropriate at the Committee stage? The atmosphere in here was like dry ice. Is it because of courtesy and form to Canada? Much has been said of conventions. They are governed by whether there is a good reason for applying them. In this case there are strong grounds for arguing that there is no good reason for applying the conventions as regards the Indian peoples. But even if the conventions are being applied, there is no reason at all for not discussing the Bill. But more than that, we are talking of a human situation: not the dry courtesies and form of this House. A true analysis of the facts will show that little courtesy and form has been shown to the original inhabitants of Canada—the indigenous peoples.

The terms “courtesy” and “form” are thus suddenly devalued. I could not believe that eminent noble Lords could brand other noble Baronesses and noble Lords who were trying to ask pertinent questions, as being “emotional”. And I could not believe that eminent noble Lords could state that it would be better for the Indians if nothing further were said. Since when has ignoring human rights been the way to deal with them? Since when have human rights issues been the butt of merriment and laughter as we suddenly experienced from certain quarters in this House on Tuesday? Was it so amusing for young Indian volunteers to come to Europe to fight and die with our own troops, including noble Lords, for their belief in their allegiance to the Crown with whom they made solemn treaties? 1068 Not one, not two, not tens, but hundreds of Canadian native peoples have left their homes and families, some have even brought their families, to come to England not for a day, not for a week, not for a month, but for several months to present us personally with their case. This, my Lords, is courtesy. This, my Lords, is the way of the Indian people. And what do we give them? Fifty minutes of our time in the Committee stage, sitting in a vacuum with no response from the Government, where—and it is the only, and last, chance we shall get to do so—we could have been discussing clauses in the proposed Canadian constitution that are frightening the native peoples of that land.

Why should these native peoples come to this country? For one reason only: they feel that their trust is directly personal with our Sovereign. Head to personal head. They believed when the Royal Proclamation was signed in 1763, for, as long as the sun shines, the grass grows, and the waters flow”, that it was binding. And whether those obligations lie with the Crown here or in Canada, the noble and learned Lord, Lord Denning, has stated: No Parliament should do anything to lessen the worth of these guarantees”.

Lord Dement My Lords, I am sorry to interrupt the noble Earl, but can he say from what document he is reading?

The Earl of Gosford My Lords, I suppose that I should not use the word that I would like to use, but this happens to be my own prepared speech.

It must be remembered that the Indian tradition is an oral one. We are constrained by paper. But as the Chief of the Fort Frances Indians once put it: You must remember that our hearts and our brains are like paper; we never forget”. I believe that this is where all the trouble started, and is the root of what has led to the fear felt today by the native peoples. What do I mean by that? It was with that signing that the might and ways of the steam-rolling invader was unleashed on the goodwill and lands rich with resources, of the aboriginal people.

The Chancellor of the Duchy of Lancaster (Baroness Young) My Lords, the noble Earl is making a very long speech and I think that he would agree that it is a speech that was really suitable to Second Reading rather than a speech which is appropriate to Third Reading, which is the stage of the Bill that we have now reached. I think it is unfortunate that the noble Earl was not in his place to speak at Second Reading and I hope he will accept that there was agreement in the House as to the procedure to be adopted at the Committee stage. I think that it would be unfortunate now to raise criticisms of the arrangements that were made at that stage. I think that it would be the wish of the House if the noble Earl could confine his remarks to those appropriate to a Third Reading.

The Earl of Gosford My Lords, although I understand what the noble Baroness is saying, that as regards Third Readings of non-controversial Bills in the House of Lords the proceedings are usually brief, I 1069 believe that so far as the Canadian Indians are concerned this is a very controversial Bill. If you Lordships will bear with me, I do not think that your Lordships will find that what I have to say is very long.
Several noble Lords Order!

The Earl of Gosford My Lords, it was with that signing that the might and ways of the invader was unleashed on the goodwill and lands rich with resources of the aboriginal people. Why, when that signing was done in the name of our Crown in order to protect just those things? While the Indians could immediately and directly consult with their people on the spot, our negotiators came with a prepared position, had to write up reports later, and send them overseas for confirmation. All this is well documented.

Lord Strathcona and Mount Royal My Lords, perhaps I may interrupt the noble Earl once again. spoke as a member of the aboriginal peoples during the Second Reading debate on this Bill. These arguments were exhaustively covered at that time. What is the noble Earl trying to achieve by the speech that he is now making to the House, which, in the context, seems completely out of order?

The Earl of Gosford My Lords, I am trying to make the point which f started my Third Reading speech describing.

From that day, the native peoples have been confined to their reservations by a succession of Indian Acts. This is crucial, and this is why it is crucial. Mr. Chretien, the Canadian Minister of Justice, said in the constitution debate in November last year: The price of liberty is eternal vigilance”. Mr. Trudeau, in a speech on his White Paper, Statement of the Government on Indian Policy 1969, stated: I don’t think we want to force the pace on them any more than we can force it on the rest of the Canadians”. My point here is that vigilance is only of any value with the facts. Apart from 13 years in the 19th century—from 1885 to 1898—the Indians had no vote until 1960. Therefore, there was no consultation with them. They had no opportunity to see certain documents. Also, before that time it was civil disobedience for them to leave the reservations.

Since 1960 the native peoples have had to take on the entrenched ways and laws of the white man. It is the results of their research that they have brought to this country. They did not bring platitudes; they brought details, and it is some more of those details which they have the right to have placed before this House, because it is in this detail that we find the source of their fears.

Noble Lords Order, order!

Baroness Young My Lords, I think it would be only right that I should draw the attention of the noble Earl to the Companion to the Standing Orders on the reading of speeches. Perhaps I may draw his attention to page 88, which says: The reading of speeches is alien to the custom of the House and is an obstacle to good debate. It is recognised, however, that 1070 on some occasions, e.g., Ministerial statements, it is necessary to read from a prepared text. Some speakers may wish to have ‘extended notes’ from which to speak, but it is not in the interests of good debate that speakers should stick too closely to a prepared text”. As I have already indicated to the noble Earl, his speech is really more appropriate to a Second Reading than to a Third Reading debate, and, as I think it is the view of the House that the points which he is now raising are points which have already been debated at considerable length at Second Reading and referred to on Committee, perhaps he could consider bringing his remarks to a conclusion on a length of speech more appropriate to Third Reading.

Several noble Lords Hear, hear!

The Earl of Gosford My Lords, on many occasions I have seen people reading from their notes, and I shall continue to do so.

Lord Mowbray and Stourton My Lords, is not this very unusual when my noble friend the Leader of the House has twice appealed to the noble Earl? All the time I have sat in this House I have never noticed—and I want to use the polite word in parliamentary language—so many noble Lords not wanting to hear what the noble Lord is saying because it has already been said. We are dealing with a very sensitive question. Canada is a great country; it has been our cousin and our friend over many centuries.

The noble Lords, Lord Stewart of Fulham and Lord Gladwyn, have been exemplarily brief today. The noble Earl has been appealed to by many parts of the House. Is he really in order by going against what I suspect to be the will of the whole House?

The Earl of Gosford My Lords, I have listened very carefully to what noble Lords opposite have said, and I quite understand their position. We are shortly to have a long debate on pornography, and there are many speakers down on the list. But, as I said at the beginning of this speech, many Indians have come to this country to petition us.

Noble Lords Order, order!

Baroness Wootton of Abinger My Lords, I should like to move that the noble Earl be no longer heard.

On Question, Whether the said Motion shall be agreed to?

Moved, That the noble Lord be no longer heard.—(Baroness Wootton of Abinger.)

Their Lordships divided: Contents, 147; Not-Contents, 15.




Adeane, L. Banks, L.
Ailesbury, M. Belhaven and Stenton, L.
Airey of Abingdon, B. Bessborough, E.
Alexander of Tunis, E. Braye, L.
Alport, L. Buckmaster, V.
Ampthill, L. Burton of Coventry, B.
Amulree, L. Campbell of Alloway, L.
Auckland, L. Cathcart, E.
Aylestone, L. Clancarty, E.
Balfour of Inchrye, L. Clitheroe, L.
Bancroft, L. Cockfield, L.
Coleraine, L. Murton of Lindisfarne, L.
Constantine of Stanmore, L. Newall, L.
Cottesloe, L. Northchurch, B.
Cowley, E. Nugent of Guildford, L.
Craigton, L. O’Brien of Lothbury, L.
Crathorne, L. Onslow, E.
Daventry, V. Orkney, E.
Davidson, V. Oxfuird, V.
De La Warr, E. Perry of Walton, L.
Derwent, L. Perth, E.
Dilhorne, V. Piatt of Writtle, B.
Drumalbyn, L. Polwarth, L.
Ebbisham, L. Porritt, L.
Effingham, E. Portland, D.
Eldon, E. Rathcreedan, L.
Elliot of Harwood, B. Reigate, L.
Ely, M. Renton, L.
Falkland, V. Robbins, L.
Fortescue, E. Roberthall, L.
Fraser of Kilmorack, L. Rochester, L.
Garner, L. Romney, E.
Gibson-Watt, L. Rugby, L.
Gladwyn, L. Sainsbury, L.
Glasgow, E. St. Davids, V.
Glenarthur, L. St. Just, L.
Gormanston, V. Saint Oswald, L.
Grey of Naunton, L. Saltoun, Ly.
Gridley, L. Sandford, L.
Grimston of Westbury, L. Savile, L.
Hailsham of Saint Seear, B.
Marylebone, L. Selborne, E.
Halsbury, E. Sempill, Ly.
Harding of Petherton, L. Sharpies, B.
Harvington, L. Shaughnessy, L.
Henley, L. Shrewsbury, E.
Home of the Hirsel. L. Sligo, M.
Hood, V. Slim, V.
Hunt of Fawley, L. Somers, L.
Hunter of Newington, L. Spens, L.
Hylton-Foster, B. Stamp, L.
Inglewood, L. Stanley of Alderley, L.
James of Rusholme, L. Stedman, B.
Kinloss, Ly. Strathcona and Mount Royal, L.
Kinnaird, L.
Kintore, E. Strathspey, L.
Kitchener, E. Sudeley, L.
Lauderdale, E. Swansea, L.
Lindsey and Abingdon, E. Swinfen, L.
Linlithgow, M. Tanlaw, L.
Lloyd of Kilgerran, L. Taylor, L.
Loudoun, C. Taylor of Gryfe, L.
McFadzean, L. Terrington, L.
MacLeod of Fuinary, L. Thomas of Swynnerton, L.
Mais, L. Tranmire, L.
Mancroft, L. Trumpington, B.
Marley, L. Tweedsmuir, L.
Marshall of Leeds, L. Vaux of Harrowden, L.
Massereene and Ferrard, V. Vivian, L.
Maybray-King, L. Waldegrave, E.
Mersey, V. Westbury, L.
Milverton, L. Wigoder, L.
Montgomery of Alamein, V. Windlesham, L.
Mottistone, L. Wootton of Abinger, B.
Mowbray and Stourton, L. [Teller.]


Beaumont of Whitley, L. Jacobson, L.
Beloff, L. Kinnoull, E.
Beswick, L. Lovell-Davis, L.[Teller.]
Ewart-Biggs, B. Morris, L.
Fletcher, L. Paget of Northampton, L.
Gosford, E.[Teller.] Shinwell, L.
Greenwood of Rossendale, L. Wynne-jones,L.
Houghton of Sowerby, L.
Resolved in affirmative, and Motion agreed to accordingly.

3.57 p.m.

The Lord Chancellor (Lord Hailsham of Saint Marylebone) My Lords, the Question is, That the Bill be now read a third time?

Baroness Young My Lords, I think that the noble Lord, Lord Morris, wishes to speak.

Lord Morris My Lords, I shall not keep you long. I can only hope and pray that I am received with a little bit more courtesy than was the very courageous noble Earl, Lord Gosford. The major lesson of English history is that today, as ever, the estates of the realm—the Church, Parliament assembled, the judiciary and the free press—are as necessary, both jointly and severally, as they ever were in order to maintain the liberty of the subject in the face of a determined executive.

It was with this in mind that, when I was in Canada, I presumed to suggest to leaders of the Indian people that the major lesson that they should have learned vs as, “do not put your trust in princes”. By that I meant, of course, in the professional politician alone. In addition, I suggested that they were right to put their faith in the judiciary of England and the Parliament of the United Kingdom, for, as indeed we have seen today, they do not lack that rarest of political virtues, courage. No one who has bothered to read the judgment of the noble and learned Lord, Lord Denning, the Master of the Rolls, in the Alberta Indian case, or the proceedings in another place, or indeed the proceedings in the Canadian House of Commons, could be in any doubt whatsoever that courage was in evidence, as indeed it was in your Lordships’ House upon this Bill in the Second Reading.

It was interesting to note that a most distinguished former Secretary of State for Foreign and Commonwealth Affairs, the noble Lord, Lord Stewart of Fulham, and, if I may respectfully say so, a most gentle and brilliant former Lord Chancellor of England—namely, the noble and learned Lord, Lord Elwyn-Jones—together with, if I may say so, one of the most distinguished of our judges, the noble and learned Lord, Lord Scarman, among others, voiced a major concern. In no way impugning the Government and peoples of Canada, these most distinguished Members of your Lordships’ House suggested that this Bill provided the statutory means whereby a determined authority could in the future, if they were so minded, erode the property rights of the indigenous minority in Canada. I must admit to feelings of sadness that this House, of all Houses of Parliament, did not allow the development of those vitally important arguments in Committee. In addition, I must admit to feelings of considerable shame that, in the face of rising hostility, I had neither the wit nor the courage—

Baroness Young My Lords, I feel that I must interrupt my noble friend Lord Morris to say that, although we are on Third Reading and he is perfectly entitled to make a speech, it would be quite wrong to leave the impression that something was improperly or incorrectly done at the Committee stage. There was agreement in Committee, on the advice we received, that amendments would be inappropriate; and there was only one issue before the House, and I would draw 1073 my noble friend’s attention to it. It was that the Bill, as indicated by its Long Title, is to give effect to a request by the Senate and the House of Commons of Canada. The Bill, therefore, is concerned solely with giving effect to that request, and the way in which the matter was managed in Committee was quite appropriate.

Lord Morris My Lords, I am most grateful for my noble friend’s advice. I in no way meant to express any feeling that there was any impropriety. My only expression was one of sadness that the Government of the day did not encourage a meaningful debate on the schedule at the Committee stage. That was the impression I was very strongly given, despite the fact that everybody agreed not to table amendments, and I did not mean in any way to suggest there had been impropriety of any sort.

Be that as it may, I believe, as so often happens, that good comes out of evil. Not for many years have the people and Parliament of the United Kingdom taken such a close and friendly look at their mightily respected and loved fellow Commonwealth colleague, Canada. I know of many who not only now know where Saskatchewan is; they can even spell it. Many new friendships have been made and are flourishing.

The Earl of Onslow I hope the noble Lord, Lord Morris, will give way, my Lords, so I may say that we are going through exactly the same thing with him as we went through rather painfully with the noble Earl, Lord Gosford. It is totally wrong that we should have shut up Lord Gosford and not shut up Lord Morris. It would be very wise if Lord Morris restrained his speech, which will have no effect on anybody or anything, and let us get on with the rest of our business.

Lord Morris My Lords, I am delighted that the noble Earl has at last spoken from his feet rather than from his bottom.

Noble Lords Order!

Lord Morris I said at the beginning of my speech that I would not be long, my Lords, and I am about to wind up. I am confident that those few who have taken a deep and sincere interest in the subject will not now go away and forget the Canada they love but will maintain a constant interest in developments in Canada.

On Question, Bill read a third time, and passed.

For all documents related to the Canada Bill (UK), please click here to view the complete legislative history.

Legislative History of Canada Bill (UK)

Royal Assent (Canada Act). Lords — March 29, 1982 (UK)
Canada Bill (Third Reading). Lords — March 25, 1982 (UK)
Canada Bill. Lords — March 23, 1982 (UK)
Canada Bill (Second Reading). Lords — March 18, 1982 (UK)
Canada Bill (First Reading) Lords — March 9, 1982 (UK)
Canada Bill (Third Reading). Commons — March 8, 1982 (UK)
Canada Bill (Foreign and Commonwealth Affairs). Commons — March 5, 1982 (UK)
Termination of Power to Legislate for Canada (Clause 2) Commons — March 3, 1982 (UK)
Canada Bill (Considered in Committee). Commons — March 3, 1982 (UK)
Constitution Act, 1982 Enacted (Clause 1) Commons. — March 3, 1982 (UK)
Business of the House (Canada Bill). Commons — March 3, 1982 (UK)
Canada Bill (Considered in Committee). Commons — February 23, 1982 (UK)
Aboriginal Rights Commission Commons. — February 23, 1982 (UK)
Canada Bill (Again Considered in Committee). Commons — February 23, 1982 (UK)
Business of the House (Canada Bill). Commons — February 23, 1982 (UK)
Business of the House (Canada Bill). Commons — February 18, 1982 (UK)
Canada Bill (Mr. Speaker’s Ruling). Commons — February 17, 1982 (UK)
Canada Bill. (Second Reading) Commons — February 17, 1982 (UK)
Canada Bill. Commons — February 16, 1982 (UK)
Business of the House (Canada Bill). Commons — February 11, 1982 (UK)
Canada Bill. Commons — February 11, 1982 (UK)
Business of the House (Canada Bill). Commons — February 4, 1982 (UK)
Business of the House (Canada Bill). Commons — January 28, 1982 (UK)
Canada Bill (First Reading). Commons — December 22, 1981 (UK)
Business of the House (Canada Bill). Commons — December 11, 1980 (UK)

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