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Date: 1980-12-10
By: United Kingdom, House of Commons (Foreign Affairs Committee)
Citation: UK, HC, Foreign Affairs Commitee, British North America Acts: The Role of Parliament, Minutes of Evidence, 1980-81 Sess (10 December 1980).
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[Page 102]

1. The Government of Canada claims that the United Kingdom Parliament is obliged
to enact, without questions asked, any amendment of the British North America Acts
which is submitted by the Government of Canada and backed by the usual resolutions of
the two Houses of Parliament in Ottawa, even though the amendment affects the rights of
the Provinces.

2. The Government of the UK may be tempted to accept this claim since it would enable
the Parliament of the UK to play a purely formal and automatic part and to avoid
embroiling itself in a Canadian constitutional controversy which ought to be decided in
Canada alone and in which no one in the UK wishes to intervene.

3. Are the Government and Parliament of the UK entitled to take this line of least
resistance? The answer depends upon constitutional convention rather than uponjaw.
In law there is no doubt that the Canadian courts recognise that in matters affecting the
Provinces the British North America Acts can be amended only by the UK Parliament in
accordance with the Statute of Westminster 1931, section 7. They may be expected to
recognise also (a) that no law sets any limit upon this amending power of the UK
Parliament; and (b) that no law sets any limit upon the freedom of the Canadian Government
to submit amendments affecting the constitutional powers and position of the
Provinces—though if they should decide otherwise this will be an internal Canadian
matter. The important question for the UK Government and Parliament is whether
it is required by constitutional convention that any amendment legislation should be
enacted without question at Westminster, even though it affects and is opposed by some
or all of the Provinces.

4. In British constitutional theory and practice there is a clear-cut distinction between
law and convention. Law derives from common law and statute and is enforceable by
the courts. Convention derives from constitutional principle and practice and is not
enforceable by courts. Law remains in force until changed by statute. Convention may
change with changing times. Law, at least if statutory, is ascertainable in precise form.
Convention is often imprecise and may be nowhere formulated in categorical terms.

5. The correct attitude for the UK Government and Parliament to adopt must be found
by looking at (a) constitutional principle and (b) past practice.

A. CONSTITUTIONAL PRINCIPLE

6. The essential elements of a federal constitution are that powers are divided between
the central and provincial governments and that neither has legal power to encroach upon
the domain of the other, except through the proper process of constitutional amendment.
The system of local government in the UK, for example, contains no element of federalism
because the powers of local authorities are wholly at the mercy of Parliament. The same
proposed devolution of powers to Scotland and Wales.

7. If it were correct that the UK Parliament is obliged to enact any amendment of the
British North America Acts proposed by the Canadian Government, this would obviously
contradict the federal principle. It would then lie wholly within the power of the

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Canadian Government, de facto, to obtain amendments derogating from the powers of the
Provinces and against the will of the Provinces. The Canadian constitution would cease
to be federal in the true sense, since the Provinces would be at the mercy of the central
government. By agreeing to act merely as an automaton at the direction of the Canadian
Government, the UK Parliament would be subverting the whole foundation of the
Constitution of Canada. It would put into the hands of the Canadian government powers
which are not possessed by the central government of the United States, Australia, India
and other federal countries, and which cannot be possessed by the central government
without destroying the federal basis of the constitution. It would be idle then to say that
the UK was refraining from taking sides in a Canadian controversy. In fact the UK
would be taking sides with the Canadian government in undermining the constitutional
rights and powers of the Provinces, contrary to the whole system of the British North
America Acts and the fundamentals of Canadian constitutional law.

8. A certain amount of misconception appears to have arisen out of talk about ” the
federal compact ” as the basis of the Canadian constitution. This term has been used by
those who have claimed that the British North America Act 1867 was the result of an
agreement between the central and provincial governments and none of its provisions can
therefore be varied without the consent of all of them. This theory is described, probably
fairly, by Professor R M Dawson as ” constructed on sheer invention “, without legal or
historical foundation; and in 1943 the Prime Minister of Canada, Mr Mackenzie King,
said that it ” does not appear to be supported either in history or in law “. The
” compact” theory may or may not be fallacious. But this in no way alters or weakens
the more limited principle set out in the preceding paragraph, namely, that the division of
powers between federal and provincial governments is something which the federal
government ought not to have power to alter unilaterally. In fact it is the basic principle of
federalism, rather than any contractual or consensual arrangement between the various
governments, which is in issue in the present controversy. It is a matter not of ” the
federal compact ” but of” the federal principle “.

9. Section 7 of the Statute of Westminster 1931 was inserted at the instance of the
Provinces expressly for the purpose of preserving the federal principle. Had that not
been done, the Canadian Parliament would have obtained full legal power to amend the
British North America Acts under section 2. Pull powers of enacting and amending
legislation were conferred upon the Federal Government by section 2 and upon the
Provincial Governments by section 7(2), but with the restriction set out in section 7(3) so as
to prevent either from encroaching upon the other’s sphere of independence.

10. The provisions of the Statute of Westminster make it quite clear that it cannot have
been supposed in 1931 that convention required the UK Parliament to enact without
question any British North America Bill put forward by the Canadian Government and
Parliament. If there had been any such convention, section 7 would have been useless to
the Provinces, and the security which it was intended to give them would have been
nugatory, since the Canadian Government could at any time have called upon the UK
Parliament to enact an amendment taking away constitutional powers of the Provinces.
It is inconceivable that the Provinces would have been satisfied with this situation. Yet
they were satisfied with section 7, thus clearly disproving the existence of any convention
of the kind now claimed. They must have felt fully assured that they enjoyed not only
strictly legal but also genuinely constitutional protection for their rights.

11. Constitutional principle, therefore, is entirely opposed to any alleged convention,
that the UK Parliament is obliged to enact amendments of the Constitution of Canada,
which reduce the rights of the Provinces without the consent of the Provinces concerned
and without inquiring whether that consent has been given.

B. PAST PRACTICE

12. It would be unprofitable to itemise all the amendments of the British North America
Acts effected by the UK Parliament since 1867. The majority of them had no effect on the
legislative powers of the Provinces and the fact that provincial consent was not obtained is
immaterial.

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13. The only amendments affecting the legislative powers of the Provinces were those of
1940, 1951, 1960 and 1964. In each one of these cases all the Provinces were consulted
and their agreement was obtained. The amendment of 1940 was delayed forborne years
until the agreement of Quebec could be obtained. By accepting this delay of’the amendment
(which gave the Canadian Parliament power to legislate for unemployment
insurance) the Canadian Government (in the words of the federal Prime Minister)—

” avoided the raising of a very critical constitutional question, namely, whether or not
in the amending of the British North America Act it is absolutely necessary to secure
the consent of all the Provinces, or whether the consent of a certain number of
Provinces would of itself be sufficient”. (Canadian Commons Debates, 1940
(25 June), pp. 1117-18)

It is clear from this remark that the Canadian Government accepted that in the case of
such amendments convention made it ” absolutely necessary ” that the consent of at least
some Provinces was obtained. In principle it would seem right that the consent of all
Provinces suffering any diminution of their legislative powers should be obtained, and this
is corroborated by the fact that unanimous consent was obtained for the amendments of
1951,1960 and 1964.

14. In addition, there is the very significant case of non-amendment represented by the
Statute of Westminster 1931. This would have gravely affected Provincial legislative
independence, as already pointed out, had not section 7 been inserted at the instance of the
Provinces. In this case not only the Canadian Government but also the UK Government
and Parliament felt bound to take account of the Provinces’ objections.

15. It hardly seems necessary to argue that convention requires the prior agreement of
Provinces whose powers will be affected by the amendment, since the Canadian Government
expressly admitted as much in the White Paper of 1965 entitled ” The Amendment of
the Constitution of Canada “. It said:

” The fourth general principle is that the Canadian Parliament will not request an
amendment directly affecting federal-provincial relationships without prior consultation
and agreement with the provinces. This principle did not emerge as early
as others but since 1907, and particularly since 1930, has gained increasing recognition
and acceptance. The nature and the degree of provincial participation in the amending
process, however, have not lent themselves to easy definition “.

This statement, it is important to observe, was agreed by all the Provinces before the
White Paper was published: see Canadian Commons Debates, 1965 (17 February),
p. 11623. It therefore represents a ” convention ” in the literal sense, being an agreed
statement of the federal-provincial relationship. It is thus as authoritative a source of
constitutional convention as can be imagined.

16. It is therefore acknowledged by all concerned that as the conventions of the
Canadian constitution have developed they have hardened in favour of the protection of
the rights of the Provinces. The Statute of Westminster evidently represents the watershed.
That was the outstandingly important occasion when the Provinces made good
their claim for protection of their rights, and it is not surprising that thereafter the convention
requiring Provincial consent became clearer and more positive.

17. The ” fourth general principle ” quoted above is framed in terms of convention
binding the Canadian Parliament rather than the UK Parliament. But it by no means
follows that it will not concern the UK Parliament. The whole object of section 7 of the
Statute of Westminster was to make the UK Parliament the guardian of the rights of the
Provinces and as already shown, constitutional principles make it essential that the UK
Parliament should not act as a mere automaton at the Canadian Government’s instance.
It is inexorably necessary, therefore, that the UK Parliament should be assured that the
Canadian conventions for the protection of the Provinces have been duly observed. If
the UK Parliament failed to satisfy itself of this, it would be acting as an automaton and
failing in its function of constitutional guardian. Where the requested amendment will
affect the Provinces, therefore, the UK Parliament must make sure that the Provinces
concerned have consented. As the precedents since 1930 make clear, the consent of the

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Provinces to amendments affecting them has in fact always been sought and obtained by
the Canadian Government, so that the UK Parliament has not had to make any inquiry.
But it would be entirely wrong to conclude from that that the UK Parliament will never
look behind the Canadian Government’s request. That will be true only where it is clear
that the requisite Provincial consent has already been obtained. If the Canadian Government
has failed to observe the conventions established in Canada, the UK Parliament
will not be bound by the supposed convention that it should ask no questions.

18. Conventions are the rules of the game of politics, and it may be necessary to
correct one infringement by another. If for example a British government were to refuse
to resign after being defeated on a motion of no confidence, the Queen would be justified
in dismissing the ministers against their will. The fact that the UK Parliament does not
in practice look behind amendments requested by Canada is entirely dependent upon
those requests being in conformity with Canadian conventions. If those conventions
are infringed, the duty of the UK Parliament is to take corrective action.

19. Two contradictory conclusions on the above question appear in the Background
Paper prepared by the Canadian Department of External Affairs dated 2 October 1980.
Conclusion (d)(ii) on page 9 is that the UK Parliament is bound to act in accordance with
a proper request from the Canadian Government (emphasis added). Conclusion (e),
which immediately follows, is that the UK Parliament may not look behind any federal
request for amendment and may not concern itself with the role of the Provinces (emphasis
again added). The former statement seems clearly correct and the latter clearly
erroneous. It is by taking the false step of equating any request with a proper request
that the Canadian Government has misrepresented the true position.

20. The inescapable conclusion is that section 7 of the Statute of Westminster 1931
has left the UK Parliament with not only legal but also political responsibility for upholding
the federal constitution of Canada and acting as guardian of the rights of the
Provinces. Anachronistic and unwelcome as this responsibility may be, it was deliberately
preserved in 1931 and nothing has since happened to alter it. The UK Parliament
therefore has the duty, when requested to amend the British North America Acts, to
ask itself two questions: first, does the amendment adversely affect Provincial legislative
powers; and secondly, if so, have the Provinces affected signified their consent?

WHAT SHOULD THE UK PARLIAMENT DO NOW?

21. It would doubtless be agreed by all concerned that it is absurd that there should even
now be no autochthonous process for amendment of the Canadian constitution in matters
affecting the federal-provincial allocation of powers. In this frustrating situation the
UK Government and Parliament may well wish to find some solution which will cut the
Gordian knot and relieve them of responsibility in future. It may be, on the other hand,
that the UK authorities will feel that any initiative for this purpose must come from
Canada, and that the only choice open to them now is either to accept the Canadian
Government’s desired amendments or else to reject them outright.

22. However that may be, one is bound to ask how the UK Parliament could best
extricate itself from its anomalous involvement in Canadian constitutional affairs. The
simplest course would be for it to enact a short statute empowering the Government of
Canada to amend the British North America Acts in any manner, provided that the consent
of all the Provinces was obtained. This would be without prejudice to its existing
power under the amendment of 1949 to make constitutional amendments not affecting
the Provinces. The whole problem would then be exported to Canada where it belongs;
and the UK would have contracted out of it for ever afterwards. Provinces would have
to signify consent to amendments affecting them in the same sort of way in which States do
so for amendment of the Constitution of the United States. The rights of the Provinces
would be safeguarded by the Canadian courts, which is as it should be. The UK Parliament
would then in effect have abrogated the last remnants of its legislative sovereignty
over Canada. Canada would at last obtain an autochthonous constitution.

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23. It is sometimes said that it is an impossibly rigid situation if any one Province has
a power of veto over any amendment affecting the distribution of powers. But that is
merely the present situation with which Canada has had to live for about a century. It
is well illustrated by the amendment of 1940, which Quebec successfully vetoed for a period
of years after all the other Provinces had agreed. It has to be remembered that any
federation requires an initial willingness to federate on the part of each and every member.
Since Canada has never been supplied with a mechanism for constitutional amendment,
the position in respect of that subject is that the federal compact has not yet been made.
It is not unnatural, therefore, that it should require unanimity.

24 November 1980

H W R WADE,

Gonville and Caius College,

Cambridge.

AMENDMENT OF THE CONSTITUTION OF CANADA

THE ROLE OF THE UNITED KINGDOM PARLIAMENT (48/80-81/FM)

1. In my memorandum dated 24 November 1980 I concluded (in para. 20) that the
UK Parliament had the duty to ask itself two questions: first, does the amendment
adversely affect Provincial legislative powers; and secondly, if so, have the Provinces
affected signified their consent ?

2. This additional memorandum is concerned with the first of these questions, and more
particularly with the question: how should the UK Parliament satisfy itself that the
Provinces, or any of them, really are affected ? I did not discuss this previously because
I assumed that the question would not arise in the present case, the effect on the Provinces
of the Canadian Government’s proposals being obvious. But perhaps it needs attention
nevertheless, in order to complete the picture of the UK Parliament’s position and duties.

3. If the effect of some proposed amendment should be disputed between the Government
of Canada and the Provincial governments, there would seem to be three alternative
ways in which the UK Parliament could ascertain whether the division of legislative
powers in Canada was in fact affected.

(i) The UK Parliament could itself determine the question on the recommendation
of a Parliamentary committee which would itself hear evidence and argument.

(ii) The UK Parliament could arrange for the question to be referred to the Judicial
Committee of the Privy Council under section 4 of the Judicial Committee Act
1833 (as was done, for example, in Re Parliamentary Privilege Act 1770 [1958]
AC 331—the Strauss case).

(iii) The UK Parliament could request the Government of Canada to arrange for
the question to be referred to the Supreme Court of Canada by the Governor
General in Council under section 55 of the (Canadian) Supreme Court Act, as
was done in the recent case of Re Authority of Parliament in Relation to the
Upper House [1980] 1 SCR 54.

4. Since the question is essentially one of law, course (i) would seem to be the least
suitable of the three. The choice between courses (ii) and (iii) is not easy, though only
because there are arguments in favour of each of them and each of them would be
satisfactory if the other were not available. In favour of the Privy Council it may be
said that the UK Parliament, in its capacity of guardian of the federal system, ought to
have a source of advice quite independent of the Federal and Provincial authorities in
Canada. Although the Privy Council is not nowadays concerned with Canadian law,
it has much experience of Canadian constitutional cases in the past. In favour of the

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Supreme Court of Canada it may be said that a question of Canadian Constitutional law
ought essentially to be determined in Canada, and that any doubtful question of law
relating to a proposed amendment ought to be settled in Canada before the UK Parliament
can properly be asked to proceed with a British North America Bill. On the other hand,
course (iii) might be more contentious than course (ii), since the Provinces might object
to the question being referred to a court appointed by the Canadian Government, despite
the high standing of the Supreme Court of Canada and the evident impartiality of decisions
such as the Upper House case (above).

5. On the whole I feel inclined to favour course (iii), provided that it will not provoke
political difficulties. If it should do so, the UK Parliament could fall back on course (ii)
and resort to the Privy Council. Since the question seems unlikely to arise in the present
case, my concern is not so much to advocate one solution or another as to point out that
there are several alternative solutions available. The UK Parliament need not therefore
feel deterred by any such problems in performing its role as guardian of the federal system
in Canada.

6. It would not be right, in my opinion, for the UK Parliament to concern itself with
any other litigation on this issue. A number of the Provinces are now, as I understand,
referring various constitutional questions, including the present question to their Provincial
courts and in due course there may be appeals to the Supreme Court of Canada. But the
questions so referred will have been formulated by the Provinces for their own purposes,
and the Provincial courts may differ in their answers to them. It is necessary, as it seems to
me, that the UK Parliament should formulate its own questions and institute its own
legal proceedings or cause the Canadian Government to institute them. The only
exception would be if the Canadian Government, before coming to Westminster, had
itself put the correct questions to the Supreme Court of Canada in a form which the UK
Parliament could approve. In that case I think that the UK Parliament could well be
satisfied.

4 December 1980

H W R WADE,

Gonville and Caius College, Cambridge.

Examination of Witness

102. Good morning, Professor Wade,
thank you very much for coming. You
are Master of Gonville and Caius,
Cambridge, Professor of English Law at
the University and author of some wellknown
studies, particularly on the
sovereignty of Parliament, and of many
other books and pamphlets. Do I correctly
describe you? (Prof Wade) Yes.

103. On this occasion you are appearing
in your personal capacity to express your
own opinions as an academic authority on
constitutional law and in no way on behalf
of any party involved in the matters which
this Committee is investigating? (Prof
Wade) That is right. I explained when
submitting my memorandum to the Committee
that I have, in fact, been consulted
by the Province of Quebec but my memorandum
is a statement of my personal
views and I have put it in as such.

104. Thank you. Your memorandum
is based on the federal principle, which you
explain in paragraph 8: ” The division of
powers between federal and provincial
governments is something which federal
government ought not to have power to
alter unilaterally “. That word ” ought”,
is it in your mind a legal ” ought” or
something less, like a political ” ought”,
a political sentiment? (Prof Wade)
I think it is both legal and political. It is
legal in the sense that there is now in the
British North America Acts a legal
division of powers between federal and
provincial governments and, therefore, they
ought not to trespass into one another’s

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spheres because that, of course, would be
contrary to the Act as it now stands. But
it is also a very important political
” ought ” in the sense that the law expresses
the spirit of the Constitution of Canada,
which is federal and which is inherent in
the whole federal situation, that neither
side, so to speak, should have it in its
power to invade the sphere of the other.

105. We have been referred by the
Foreign Office to evidence given to a
Special Committee of the Canadian House
of Commons in 1935 to consider methods
of amending the BNA Acts, and in particular
to evidence by Professor Kennedy.
He said that the fundamental thing about
Canada is that it is a federation but he
goes on to say that he agrees with the
view that the UK Parliament would never
refuse to enact on request from the federal
Parliament even a request directly aimed
at the provinces. He says that any requirement
of consultation with the provinces is
a matter of Canadian politics and now law.
So, how can you be sure, Professor, that
something fundamental to the politics of
the Canadian federation is also fundamental
to its constitutional law? (Prof
Wade) I do not suggest it is primarily a
question of law for this country in this
situation. It is really a question of convention
and proper practice, which, of
course, is intimately connected with the
law. But I am bound to say I find it very
hard to understand Professor Kennedy’s
evidence, which was, of course, taken
orally, and he emphasises that he is merely
expressing an opinion and emphasises at
one point he is concerned only with
questions of law but then plunges into a
number of questions of politics and convention.
It does seem to me he contradicts
himself in the evidence to which I was
referred because at one point he seems to
concede that the arrangements would allow
the federal government to obtain powers
which would reduce the powers of the
provinces, and immediately afterwards he
is emphasising that it is a federal constitution
in which that sort of thing ought
not to happen. So, I would not contend
that I can make good sense of his evidence
just at that point.

106. Professor Wade, in paragraph 9 of
your memorandum you say that section 7
of the Statute of Westminster 1931 was
inserted at the instance of the provinces
expressly for the purpose of preserving the
federal principle. This kind of argument
has been rehearsed before us by other
people who have given us evidence, but
were the claims of the provinces at the
time accepted by the Conference or was it
not simply agreed that the Statute of
Westminster would not affect amendment
of the BNA Acts?—(Prof Wade) I think
that those are to some extent the same but
probably the latter statement is the more
correct and the whole problem was found
to be insoluble, as it has been in Canada
every time it has been discussed among all
the parties, and it was simply put off, it has
been put into cold storage, and it has been
taken out again now.

107. Has this argument been tested since
1931 in any substantial way? (Prof
Wade) As I understand it, no, because the
Federal Government of Canada has taken
very good care to carry the provinces with
it in any amendments affecting their
legislative powers.

108. So, would it be correct to say that
what the UK Parliament may be asked to
do—and there is, I gather, no formal
request yet—is entirely without precedent?
—(Prof Wade) I think in the circumstances
the answer to that must be yes.

109. Professor Wade, how do you
explain the fact that since 1930 there
has been no occasion when the UK Parliament
has been informed by the UK
Government of any provincial concurrence
with or dissent from proposed amendments
the the BNA Acts, not even in those cases
where the powers of the provincial legislature
were being reduced? (Prof Wade)
I think by the very simple fact that the
provinces consented to it and no province
protested and, therefore, there was no
evidence whatever before the UK Parliament
that there was any problem in Canada,
whereas, of course, now there is ample
evidence and a quite different situation.

110. If since 1940 we have declined to
inquire, or at least failed to inquire, into
the internal Canadian arguments affecting
provincial powers and the various governments
of this country have also publicly
stated that we do not intend to make such
inquiries, are not the Canadian Govern-

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ment and Parliament entitled to rely on
that as forming a sort of constitutional
convention to that effect ? (Prof Wade)
I should not have thought so because it
seems to me to contradict the whole principle
on which the Constitution of Canada
rests. The situation that we have now is
not one which has arisen in respect of
those other amendments since 1931 and,
therefore, no convention developed in the
intervening years would have any relevance
to the situation we have now.

111. When you referred to 1931 in
answer to my colleague a moment ago you
used the graphic phrase ” into cold
storage “. Can you confirm my memory
that when there was that happening it was
by mutual consent and mutual agreement
and was formally concluded in the Conference
prior to the Statute of Westminster
itself? (Prof Wade) With the mutual
agreement at what point? I did not
quite follow?

112. To put the Constitution into cold
storage? (Prof Wade) Yes, to put the
problem of amendment into cold storage,
yes.

113. And it is part of your case or part
of your view, I take it, that, therefore, it
should not emerge from such cold storage
without a comparable agreement?—
(Prof Wade) That is right.

114. Professor Wade, I wonder if you
would explain to the Committee how the
United Kingdom authorities could be, if
you like, guardians of the rights of the
provinces against the federal government
when, unlike the Australian situation, the
provinces do not have direct access either
to our Government or our Parliament?
(Prof Wade) I think access as between
governments is really a matter of protocol
and is for the governments themselves to
say who shall have access to them and who
shall not and I do not see very much
significance in that. As regards access
between Parliaments, I should not have
thought there was any ban on access by
the provincial authorities to the Parliament
at Westminster so long as the Parliament
at Westminster retains the power and
responsibility of amending the Canadian
Constitution.

115. Professor, the 1965 White Paper
says that the principles which it states,
one of which you strongly rely upon,
are not constitutionally binding in any
strict sense. Are you not, therefore,
seeking to give the White Paper’s fourth
principle more binding force than the
White Paper claims for itself? (Prof
Wade) No, I think I am using it merely as
evidence, but it seems to me a very strong
piece of evidence. As I understand it,
the White Paper was concurred in by all
the provinces before it was published and,
therefore, is a convention in the most
literal sense of the term agreed by all
parties.

116. You say ” all the provinces”.
The fourth principle in the White Paper
is not explicit about unanimity. It just
says “prior consultation and agreement
with the provinces”. If it meant all the
provinces would it not have said so?
(Prof Wade) It does not seem to me you
can read anything into that phrase one
way or the other. I should have thought
it was equally natural to say ” the provinces”
or “all the provinces”, but
perhaps there is some slight reservation in
the former phrase in that there might be
room for some absence of unanimity. Of
course, the natural situation is where the
amendment might affect some provinces
but not others. In that case there would
be no point talking about all the provinces.
It would only be the provinces affected
which would be relevant.

117. You say that federation requires
an initial willingness to federate on the
part of each and every member and that
that suggests unanimity about methods of
amendment. Surely some of the Canadian
provinces were created, in effect, by Canada,
by Acts of the Canadian Parliament?
I refer to those who joined the Dominion
after the relevant date. Does that make
a difference? (Prof Wade) No, I should
have thought not. That is the formal
aspect. They were incorporated by
various British North America Acts but
not, I think, against their will.

Chairman] Obviously not, I suppose, no.

118. But in respect of that, Professor
Wade, is it not true that the latest province

[Page 110]

to join the Canadian Federation was
Newfoundland and that one of the points
which has been made is that Newfoundland
became a member of the Federation under
the Constitution as it then was and that
any change in that Constitution would
morally require their assent as well? So,
in that case would you not put that
particular province on a different level
even from those that were created by the
Federation itself? (Prof Wade) No, I
do not think so, otherwise you have to
go back and put all the others on a
different level as from the dates when they
were admitted to the Federation. It
seems to me that entrance into the Federation
involves accepting or agreeing to the
constitutional arrangements and that involves
giving the new province its due
share of legislative power under the
British North America Acts and from then
onwards it is entitled, just like any other
province, not to have those powers reduced
or taken away without its own consent.

119. So, your point would be by virtue
of the cold storage point we referred to
Newfoundland would have assumed that
no change or no introduction of a means
of changing the Federation would be
brought about unless it had not only the
assent of Newfoundland but of all the
other provinces as well? (Prof Wade)
So far as Newfoundland goes, obviously
its own consent ought to be sought for
any amendment affecting its own legislative
powers. I do not see that it should be
concerned with the legislative powers of
the other provinces, if I have understood
you correctly.

120. But as far as its own powers are
concerned, you would have said that was
an assumption and understanding on
which it became a member of the Canadian
Federation?—(Prof Wade) Yes. It
seems to me inherent in the whole conception
of a federal state into which it
entered.

121. Of course, Newfoundland already
existed as a legal entity but Alberta and
Saskatchewan when they became provinces
had not existed at all before. As you said,
they were created by an Act of the Canadian
Parliament? (Prof Wade) So far as they
formed a part of Canada, yes, certainly.

122. What do you say to the argument
that any convention about provincial
concurrence is too uncertain in its scope
to be usable? The 1965 White Paper
itself said that the nature and degree of
provincial participation in the amending
process have not lent themselves to easy
definition. Does not this remark seriously
qualify the fourth general principle, to
which it is appended? (Prof Wade)
No, I do not think so. We are talking
about constitutional conventions and it is
inherent in constitutional conventions
that they are a bit hazy at the edges. It
is quite different from talking about rules
of law. But that remark at the end of
the fourth principle seems to me merely
winding up the statement simply by saying
that the provinces have, in fact, been
unable to agree on a formula for constitutional
amendment. That is what I
take it really to be thinking of and I do
not read it as withdrawing in any way
what was said immediately in the previous
breath.

123. You point out in paragraph 22
that perhaps the most convenient way out
of this difficult impasse would be for the
British Parliament to pass an amendment
to the British North America Act which
would enable the Canadian Federal Parliament
to change the constitutional balance
in Canada provided that the means of
obtaining that change had the unanimous
consent of all the provinces. Can I put
it to you that supposing such a request
for an amendment was received, but
instead of having the unanimous assent
of all the provinces it only has the majority
assent of provinces in broadly the three
sections, the Atlantic provinces, the Central
provinces and the Western provinces,
there would be, would there not, a strong
case for the British Parliament then to
accede to such a request? (Prof Wade)
I do not think it is any different in principle.
I think that every province’s rights and
position have to be considered independently
and that although, of course, it is
very tempting to say if there is a strong
majority in its favour right across Canada
that is a different situation. I do not think
that it really is because each province is
entitled to stand up for its own rights.
Of course, that situation has already arisen
in Canada when several of the previous

[Page 111]

provinces then discussed constitutional
amendment. As I understand it, the
Victoria formula was only rejected by one
province, Quebec, admittedly one of the
largest and most important provinces, but
there have, I think, been several situations
already where one province has held out
against the others and I think it has been
accepted in Ottawa that that did not make
a case for coming to Westminster.

124. But you are, therefore, saying that
even if there were widespread agreement
among most of the provinces and, indeed,
all the larger ones, on such a request and
such a formula for amendment, it has
hitherto escaped everybody that even if
one of the smaller provinces held out the
British Parliament, by virtue of the
unanimity which you have suggested is
proper would not be justified in acceding
to the request ? Is that your position ?
(Prof Wade) Yes, it is. Perhaps I might
point out it is very far from the situation
which appears to obtain at present. As
I understand it, eight out of the ten provinces
are resisting the Federal Government’s
proposals, so that it is at the very
other extreme of the possible spectrum of
situations from the one that you have put
to me. But I think in principle the answer
must be yes because there must be an
agreed formula for constitutional amendment
in Canada which has the consent
of all the provinces and it might be that
one, perhaps a small province, might have
very important interests about which the
other provinces did not care very much
and I think it would be quite wrong in
principle that those should be sacrificed
without its agreement.

125. I should make it clear that I am
envisaging a possible situation not of a
request of the character which may well
come before this House but a different
type of request which is only concerned
with patriation on what is a largely agreed
formula. On that assumption can I now
take you one stage further. If such an
event occurred and there was one province
still objecting on a basis that may be well
justified that you have suggested and you
are saying in those circumstances Westminster
should still say no, are you not
suggesting that the judgment of that particular
province is superior to the remaining
sovereignty that the Westminster Parliament
still have?— (Prof Wade) No,
because I think in your last few words
introducing the sovereignty of the Westminster
Parliament you have slipped from
convention into law and those are as
different as chalk and cheese. The convention,
I think, is what matters here.
That should protect the position of every
individual province and I think the
situation which you envisage ought to be
treated as a purely Ganadian problem and
there should be some political solution in
Canada. , Perhaps the other provinces
would be able to turn the heat on to the
dissenting province or the Federal Government
may have some way ultimately of
producing unanimity. It has many powers
and opportunity of influence and I think
it is in that area the solution has to be
sought and it does not in principle in the
least affect the attitude of Westminster.

126. You are, therefore, saying that
such a request without unanimity would
be if not improper for the Canadian
Federal Parliament an improper one for
this House to consider? —(Prof Wade)
It would not be right, I do not say to consider
but it would not be right for Westminster
to enact it.

127. Professor Wade, I have three questions
and the third hangs on the previous
two. I think it is fair to say yours is the
most emphatic paper that we have received.
On the first two sections of it you come
down quite categorically in saying that
constitutional principle is entirely opposed
to any alleged convention, that the UK
Parliament is obliged to enact amendment
of the Constitution of Canada without the
consent of the provinces. Then you say
in your section on past practice that the
inescapable conclusion is that the UK
Parliament is both legally and politically
responsible for upholding the federal
Constitution of Canada and acting as
guardian of the rights of the provinces.
My first question is, when making this
very categorical statement based on your
great learning, what do you say to those
in the Federal Government and the
Federal Parliament of Canada who dissent
most strongly from your judgment on both?
In what way are they misguided, as you
see it, in believing that the request of the
democratically elected Parliament and
Government of Canada is wrong?—

[Page 112]

(Prof Wade) We have been reading this
morning about democratically elected
parliaments and the Parliament of Ottawa
and in Westminster are not the only
democratically elected Parliaments in this
field, there are also the democratically
elected legislatures of the provinces. In
fact, I think the answer to your question
about how one is to explain the attitude
of the Federal Government is no doubt
that their patience is exhausted. They
have been through very many long and
serious efforts to achieve unanimity in
Canada and they have failed, sometimes
with the dissent merely of one province,
and I think they are now trying to strain
the situation in their own favour when,
in fact, it is fundamentally contrary to the
federal principle, which, if it means anything,
means that the Federal Government
cannot take away the powers of the provinces.
This is something which the
Government of the United States is
unable to do, the Government of Australia
is unable to do. It is absolutely fundamental
to a federal country and if Canada is to
remain a federal country that must be the
situation.

128. My second question concerns your
judgment of the background paper, which,
of course, the Committee have seen, of the
Canadian Parliament External Affairs.
Would I oversimplify your view, if I
have understood your evidence, to mean
that you are not at all impressed by this
paper and you think that it has been
drawn up very largely for the political
purpose of enabling the Canadian Government
to overcome its problems rather
than being a paper that is based on objective
principle and more? (Prof
Wade) I think it is quite natural that it
should be designed to help the Canadian
Government to overcome its problems
and I thought it was—

129. A political paper rather than
legal?—(Prof Wade)—a very good
paper for that purpose, but the whole
situation, as I understand it, is political
rather than legal.

130. My third question really goes to
the conclusion that you have drawn in
your powerful paper and you advise us
very clearly that we should enact a short
statute empowering the Government of
Canada to amend the British North
America Acts in any manner provided
that the consent of all the provinces was
obtained. You are moving, I think, outside
the strict field of law and constitutional
principle into a piece of very valuabe
political advice which I am sure the Committee
is very grateful to have. But I
would like to ask you just exactly how
you think this would work. You say
the whole problem would then be exported
to Canada where it belongs and
the UK would have contracted out of it
forever. We would have abrogated the
last remnants of our legislative sovereignty
over Canada. I think that is probably
what some of us at least would like to
see happen, but if we were to do that and
the Canadian Government and Parliament
dissented, as it might well do, how
would we, in fact, have achieved our object ?
You can hardly export something to a
person who does not want it?—(Prof
Wade) No. I was careful to say in the
previous paragraph that I quite realise
that the Committee might not be interested
in anything of that sort and they might
feel their task was merely to advise the
UK Parliament whether to say yes or no
to Mr Trudeau, so this was purely a piece
of speculation on my part, but, of course,
it would require the consent of Canada,
both the federal and the provincial governments,
and I do not suppose anyone on
this occasion would wish to put forward
any propositions except as material which
might commend itself in Canada, and if
it did commend itself then, of course,
Westminster I would expect, would be
very favourably disposed to enacting it.

131. Should our Parliament in the UK
be best advised to await the outcome of
any genuine litigation going on before
the Canadian courts on matters we have
been discussing?—(Prof Wade) I think
it is a very difficult question to answer
categorically. It is conceivable that
litigation in Canada might go on for
many years and it might be used as a
delaying move and it might get the UK
Parliament into great difficulty if in any
way it, so to speak, hitched itself onto legal
proceedings in Canada which were not
started with its own agreement or by some
agreement with the Government of
Canada. I can foresee very considerable
difficulties if it is suggested that we must

[Page 113]

wait until everything has been finished
in the Canadian courts. I think there are
six provinces at least at present which
have started legal proceedings, and although
these may all funnel through in
the end to the Supreme Court of Canada
on appeal, nevertheless there is likely to
be quite a complicated and confusing
sitution. I did make some suggestions in
my supplementary memorandum about
how that might be resolved and I think
personally perhaps the best solution would
be for the Government in this country
to arrange with the Canadian Government
in Ottawa to.have the question
formally referred by the Canadian Government
in Ottawa to the Supreme Court. If
they have already decided it on an appeal
from, say, Alberta, then they can simply
refer to their previous decision and decide
it, but there would be one legal channel
which would have a definite beginning
and end and there would not be a possibility
of proceedings dragging on over
which really we have no control and which
might take the whole situation, so to
speak, out of our hands.

132. In what way do you think a
decision of the Canadian Supreme Court
could affect the constitutional and legal
practice of this Parliament in relation to
the amendment of the BNA Act?—
(Prof Wade) There are a number of
possibilities. One of the questions being
submitted to the provincial courts at this
stage, but which may well go to the Supreme
Court of Canada, as I understand it,
is whether the Government of Canada
is now legally entitled to submit its package
to Westminster, and if the Supreme Court
of Canada should answer that in the
negative, of course it will be necessary to
take account of that and the Government
of Canada will have to drop it. That is
one possibility. There are various other
possibilities.

133. Just on this question of which
comes first, the chicken or the egg, the
position of the judicature or the legislature,
you are not saying, are you, that
if there is a perfectly genuine case with
which the court is seized and there is no
artificial procedural delay going on, the
legislature should override that, and if
you are, is there any precedent for the
legislature to interfere in a proper con-
stitution with the rights of the court?
—(Prof Wade) I do not think there would
be any interference with the operation of
the law in any sense at all because these
questions are, or ought at any rate to be,
questions of law which the Canadian
courts are being asked to determine,
whereas, in fact, the problems for this
country are problems of constitutional
convention and practice and they do not,
strictly speaking, conflict or interact.
But I am certainly not saying no attention
should beN paid to some decision of a
high Canadian court which may arise
out of these proceedings. What I think
I am saying is that there might be considerable
difficulties if the conduct of the
UK Parliament were to be made dependent
on legal proceedings in Canada which
might get rather out of hand.

134. As a matter of prudence and sense
would it not be wise for the UK Parliament
to await the outcome of perfectly
sensible, genuine litigation in the courts
before it comes to a conclusion rather
than blurt out its view beforehand?—
(Prof Wade) Yes, I think it would, and
in my supplementary paper I suggested
a means whereby that might be brought
about. My only reservation is whose legal
proceedings we get involved with.

135. Professor Wade, a few moments ago
you were insisting that any request for
patriation and a patriation formula alone
should receive the absolute unanimity of the
provinces. To some people that may
appear a logical legal but very precise
position, but I take it you would agree that
such a qualification would have the advantage
of removing any judgment concerning
the advantages or the rights of a particular
province standing out away from this
Parliament and confine it to an entirely
Canadian forum ? Do I take it you would
agree that that would be the added advantage
of such an absolute position?—
(Prof Wade) Yes.

136. And can I take it also that it would
be your preferred option which might help
everybody if it were possible?—(Prof
Wade) The preferred option, of course, is
that everybody concerned in Canada
should agree.

137. On that particular possible request
for patriation and a patriation formula?

[Page 114]

—(Prof Wade) Yes, certainly. If I
understood you correctly, I should have
thought the ideal situation was to get the
patriation formula, by which I mean the
constitutional amendment formula, agreed,
and deal with that by itself. It might go
back to Canada and the Bill of Rights and
all the other consequential things can be
dealt with in Canada by Canada without
any reference to this country at all.

138. At a later stage?—(Prof Wade)
Yes, absolutely correct.

139. I am told by experts who understand
these things, which I do not, that one
cannot simply patriate, as it were, the BNA
Acts as they are because the Canadian
people would then be left without any
means of amending their own Constitution.
As a layman, I do not understand it.
Surely it is inherent in the concept of
national sovereignty that the people can
amend or determine their own Constitution
how they wish? Equally, I should have
thought the sovereignty of the UK Parliament
is such that if the UK Parliament
simply said, ” Here is your BNA Act, your
existing Constitution, get on with it”,
there is nothing that can prevent the UK
Parliament acting in that way?—(Prof
Wade) Certainly there is nothing to prevent
the UK Parliament acting in that way, but
to the earlier part of your question the
answer is no, if it is a federal country. The
Congress of the United States cannot
amend the Constitution of the United
States without the consent of threequarters
of the states signified independently,
so that there is no inherent argument
for saying that a country must
necessarily be able to look after its own
Constitution and amend it. If we simply
patriated the BNA Act, which I think is the
sense in which you mean it, simply by
declining to take any further steps to
amend it and leaving it all to Canada,
Canada would be legally impotent.

140. Unless there was a unanimous
agreement?—(Prof Wade) Even then
they would not legally obtain the power to
amend the British North America Acts.
There has to be legislation which the
Canadian courts will accept as valid for
that purpose, and so long as section 7 of
the Statute of Westminster remains unrepealed
in any way which the Canadian
courts will recognise, so long must Canada
be devoid of constitutional amendment.

141. Professor Wade, you will have seen
the statement yesterday by the Prime
Minister at Question Time. I think I
should quote a bit of it. She said that if a
request is received we have to deal with it
in accordance with the statute, in accordance
with precedent, and then she repeated,
thereby giving greater emphasis, “and in
accordance with the fact that it is received
from a fully democractically elected
Parliament and would be a request from a
fully democratically elected Parliament to
a similarly democratically elected Parliament”.
The inference I draw from that
was that it was the Prime Minister’s advice
to the House that if we receive a request
from such a fully democratically elected
Parliament we would have no choice but
to accept it. Do you disagree with that
inference I draw from the Prime Minister’s
remarks?—(Prof Wade) I am afraid I
must do. It is entirely contrary to the
position I have put before the Committee.

Chairman] Professor Wade, thank you
very much, you have been most helpful
to the Committee. We are very grateful
to you.

THE QUESTION OF “INTERFERENCE IN THE

DOMESTIC AFFAIRS OF CANADA” (25/80-81/FM)

1. This memorandum is directed to only one aspect of the question now before the
Committee. When the United Kingdom Parliament receives from the Parliament and
Government of Canada a proposal for an amendment of the Canadian Constitution, is it
entitled or required to ascertain whether that request is supported by an appropriate
degree of Provincial consent? The question arises because the suggestion has been
made that for the United Kingdom to enter into such an enquiry involves ” an interference
in the domestic affairs ” of Canada and is therefore inappropriate.

[Page 115]

2. There are two possibilities as regards the underlying constitutional law and convention.
One is that an amendment of the character now under consideration does not
require unanimous provincial consent; the other is that it does. If it does not, then the
present question does not arise. But if it does, then it seems inconceivable that the British
Government should not be concerned with the extent of provincial support. To suggest
otherwise is to imply that the Federal Government would be entitled to pretend that it
has unanimous provincial support when in fact it has not. If provincial unanimity is a
necessary precondition of the application to the United Kingdom Parliament, then all
concerned in the application are entitled to know the relevant facts.

3. Moreover, if the question is approached exclusively in terms of constitutional law
and convention (as opposed to international law, of which more later) the notion of
” interference in the domestic affairs of Canada “—at any rate as a legal conception—
appears entirely misplaced. There are two ways of looking at the involvement of the
British Parliament. Either it is involved because, for the limited purpose of amendment,
it is effectively an organ of the Canadian constitution. Or, if not an organ of the Canadian
constitution, it is involved as an organ of the British constitution having a special relationship
with one feature of the Canadian constitution. But in both cases the participation
of the British Parliament is the consequence of specific rules—whether called law, convention
or practice; and once the content of the particular rule relating to amendments
of the kind now under consideration is identified as requiring unanimous provincial
consent there is no basis for suggesting that the UK Parliament, while operating within
the framework of and subject to those rules, can ignore the fact that the precondition of
British Parliamentary action is not met.

4. Another way of putting the point is that British concern with the legal requirements
is not an interference in a Canadian domestic affair because, in the nature of the situation,
for this purpose the British Parliament is part of the Canadian domestic scene. By
definition, fulfilment of a legal role in the Canadian constitution cannot be interference
in the workings of that system.

5. Apart from a ” constitutional” approach in the above terms, it is right that the
international law aspect should be addressed. There is, however, a certain artificiality
in approaching the matter as one arising between two sovereign States. Although the
United Kingdom and Canada are for all practical purposes, separate and independent
legal persons, the matter of Canadian constitutional amendment is the one respect in
which they are not. On this question Canada is still tied to Britain by an umbilical cord
and even in international law this cannot be ignored.

6. There are, nonetheless, two points to be made on the international legal plane.

7. First, it is generally accepted that the concept of ” internal affairs ” or ” domestic
jurisdiction ” is not absolute. As was acknowledged by the Permanent Court of International
Justice in the case of the Tunis and Morocco Nationality Decrees, PCIJ, Series B,
No 4, the concept of domestic jurisdiction is relative and varies according to the circumstances
of each case, and if a matter is regulated by treaty or other comparable arrangement
it is definitely not one exclusively of domestic jurisdiction. The body of relevant
law, convention and practice affecting the role of the United Kingdom Parliament cannot
just be ignored and must, therefore, even though at first sight not on the place of international
law, be translated onto that level. Accordingly, it is necessary to speak of the
relationship of the United Kingdom and Canada in respect of constitutional amendment
as being governed by understandings akin to treaty which in their content are identical
with the constitutional conventions which Canada also invokes. If this is so, those same
conventions/understandings provide the basis for the United Kingdom’s right to know
whether or not the Canadian request has the unanimous support of the Provinces.

8. Secondly, and quite apart from the special facts of the present situation, it is not
correct that concern by one State with the satisfaction of constitutional requirements in
another automatically constitutes a legally unacceptable interference in the domestic

[Page 116]

affairs of the latter. The situation is in some respects analogous to the interest which one
party to a treaty may have in the constitutional authority of another party to enter into
that particular agreement. Article 46 of the Vienna Convention on the Law of Treaties,
to which both Canada and the United Kingdom are parties, contemplates investigation
of whether a State’s constitutional requirements have been satisfied in the event that that
State contends that failure to comply with its internal law has prevented the formation
of a valid treaty obligation:—

” 1. A State may not invoke the fact that its consent to be bound by a treaty has
been expressed in violation of a provision of its internal law regarding competence
to conclude treaties as invalidating its consent unless that violation was manifest
and concerned a rule of its internal law of fundamental importance.

2. A violation is manifest if it would be objectively evident to any State conducting
itself in the matter in accordance with normal practice and in good faith.”

From this it is obvious that international law does not impose any blanket prohibition
upon an interested State investigating the content and application of the constitutional
law of another.

9. In suggesting that the United Kingdom Parliament may satisfy itself that where
unanimous consent is required it has been obtained, it is appropriate to add that this is
not merely a right which the United Kingdom Parliament possesses as against the Canadian
Parliament. It is a duty which the United Kingdom Parliament owes to the Provinces.
The Canadian federal system is not one in which the Provinces are subordinate to the
federal government. The Provinces were before 1867 separate entities each with their
own position in relation to the United Kingdom. The creation of the federation of
Canada did not destroy that provincial identity. When the Statute of Westminster
freed the Dominion Parliament from the fetters of the Colonial Laws Validity Act it at
the same time extended that freedom to the legislatures of the Canadian Provinces and
thus acknowledged in statutory terms the freedom and rights of the Provinces.

10. There is no legal or conventional screen between the United Kingdom Parliament
and the Provinces which requires the former to assume that the consent of the latter is
to be implied in any request from the Canadian Parliament. When all is said and done,
the amendment of the Canadian constitution is a matter of Canadian constitutional law
in which there are three participants: the federal Parliament, the Provinces and the United
Kingdom Parliament (here acting, in effect, as an organ of Canadian constitutional
machinery). It is, therefore, inappropriate for the Canadian Government to raise in
this context barriers of a national or territorial kind. There is but one constitution of
Canada and the United Kingdom Parliament is, for a limited purpose, an essential
part of it. There is, therefore, no element of interference in the domestic affairs of
Canada when the United Kingdom Parliament does just what the domestic law and
convention of Canada require of it, namely, to ask whether there are conditions precedent
to be satisfied and whether they have, in fact, been satisfied. And why it may be
asked, should it be any more an interference in the domestic affairs of the nation of
Canada if, to the claimed disadvantage of the federal government, the United Kingdom
Parliament makes an enquiry regarding provincial consent than it would be an interference
in the affairs of that same nation if the United Kingdom Parliament were, to the
evident disadvantage of the Provinces, to fail to make enquiry regarding Provincial
consent?

E LAUTERPACHT, QC

28 November 1980

Examination of Witness

142. Mr. Lauterpacht, we are very
grateful to you for coming. You are a
Queen’s Counsel, you practise in inter-
national law, you have been Visiting
Professor of International Law in various

[Page 117]

countries’ universities, you have been
Legal Adviser to the Australian Department
of Foreign Affairs from 1975 to 1977,
and you are the author of innumerable
books and pamphlets on the subject of
international law. Am I right?—
(Mr Lauterpacht)Yes, Mr Chairman.

143. You are appearing in your personal
capacity to express your own opinions as
an academic authority on international law
and in no way on behalf of any party
involved in this investigation?—(Mr
Lauterpacht) That is correct. I should
declare, though, that I have been professionally
consulted by two provinces,
Quebec and British Columbia, but in
appearing before you at the present time
I appear exclusively in a personal capacity
and will endeavour to reply to questions
objectively.

144. You say in paragraph 9 of your
memorandum that the United Kingdom
Parliament owes a duty to the provinces
and that before 1867 the provinces were
separate entities each with their own
position in relation to the United Kingdom.
But surely some of the provinces were
created by Canadian Acts long after
1867 and have never had any sort of
constitutional relationship with the UK
Parliament? Even Quebec and Ontario
were not distinct legal entities before
Confederation? Even if the UK Parliament
has constitutional responsibility under
the Canadian constitutional system, how
can these be duties to the provinces as
such?—(Mr Lauterpacht) Mr Chairman,
may I before answering the question seek
your guidance? There is a respect in
which I would like to supplement the
memorandum which I submitted to the
Committee. Would you wish me to do
that now?

145. Yes, indeed, if it is not too long ?—
(Mr Lauterpacht) I hope it is not too long.
The main purpose of my submission was
to refer to the position in international
law. I had understood there was concern
over the question of whether any questioning
by the United Kingdom Parliament of
the request from the Canadian Parliament
could be treated as or thought of as interference
in Canadian domestic affairs. It
was to that that my memorandum was
directed and I approached the problem
in terms of constitutional law, firstly, and
secondly, of international law. I need
not expand on the constitutional aspect of
my submission. It was imply that, in so far
as the UK Parliament had a position under
the Canadian Constitution, the discharge
by Jhe United Kingdom Parliament of its
role under the Canadian Constitution
could not conceivably be regarded as interference
in Canadian domestic affairs. So
far as international law is concerned, I
approached the problem on the basis that
one has two independent states and the
question, therefore, is whether the United
Kingdom Parliament, in acting in the
manner contemplated by the arrangements
presently in force, whatever they may be,
was performing a duty under the Canadian
Constitution, and my concern in terms of
international law was whether an inquiry
by this House into what had happened
in Canada could be treated as interference
in Canadian domestic affairs. Mr Chairman,
I presented to the Committee at that
time some considerations of international
law to show that concern on the international
plane with the constitutional
affairs of another state is not by itself
automatically an interference in the affairs
of that other state. In order to supplement
that point I have here an extract from a
document which was produced by the
United Nations, called “Laws and
Practices concerning the Conclusion of
Treaties”. The introduction to this
document states that the International
Law Commission, which is an organ of
the United Nations established by the
General Assembly, had in 1950 observed
in connection with the process of treatymaking
that: “Precise knowledge of
constitutional provisions of other countries
is essential to those who in any country
are engaged in negotiating treaties and to
that end the United Nations sought information
from various countries, from all
members, for the purposes of trying to
establish what are the constitutional rules
in those countries regarding treaty-making.
The point is important because if a
country makes a treaty in a manner which
is evidently inconsistent with its constitution
then the validity of that treaty may
in certain circumstances be questioned.”
It is interesting, Mr Chairman, that amongst
the countries which put in their own
replies as opposed to leaving it to the
United Nations to formulate an answer
for them was Canada, which submitted a
memorandum on 21st July 1952 explaining
the position regarding treaty-making in
Canada. There is no need for me to take

[Page 118]

the Committee through that memorandum.
The main point to be derived from it is
that the Canadian Government fully and
frankly expounded its constitutional position
and indicated the limitations which
existed in that Constitution as regards
the legislative implementation of international
obligations which Canada might
assume. Clearly the inference to be drawn
from that memorandum is that Canada was
perfectly prepared that other countries
should understand its Constitution first
and be ready in certain circumstances not
to conclude a treaty with Canada because
Canadian constitutional requirements either
had not been met or Canada might in the
future be unable to implement its undertakings.
That was the first item to which
I wanted to refer in that connection. The
other one is to refer the Committee to the
text of an actual treaty in which this problem
is dealt with. In 1967 there was adopted
something called the Protocol to the
Convention on the Status of Refugees, a
multilateral convention dealing with the
refugee problem. Canada acceded to this
convention in June 1959. The convention
contains something called a federal clause,
which is a provision in the convention to
enable federal states to become parties to
the treaty in accordance with their constitutional
limitations. A paragraph of
Article 6 of this Protocol which bears
mentioning is this: ” A federal state party
to this Protocol shall at the request of
any other state party hereto transmitted
through the Secretary General of the
United Nations supply a statement of the
law and practice of the federation and its
constituent units, in regard in particular
to the provision of the convention to be
applied in accordance with Article 1 of
this Protocol, showing the extent to which
effect has been given to that provision by
legislative or other action.” This is merely
a rather striking and relatively rare illustration
of the perfect possibility that a state
may accept that other states should look
at its Constitution. Mr Chairman, the
remaining point I wanted to make in this
connection is that from time to time the
courts of various countries have to consider
the constitutional position in other
countries. The most frequent occasion is
when in the courts of, say, the United
Kingdom, a foreign state which is made the
defendant in proceedings seeks to invoke
the plea of state immunity, the argument
that because the defendant is a state it is
immune from the jurisdiction of the
English courts. In those situations the
English courts have no hesitation in
looking at the constitutional position of
the foreign state and the examination by
the English courts of that constitutional
position is not regarded as in any way an
interference in the domestic affairs of that
foreign state. A good illustration is provided
by a decision of the English Court of
Appeal in 1971 in a case affecting one of
the Canadian provinces called Mellenger
and another v New Brunswick Development
Corporation, which is reported in 1971 2
All ER at page 593. There is one paragraph,
Mr Chairman, which bears reading
and I am quoting from one of the judgments
of the Court of Appeal: ” It has
been suggested by counsel for the plaintiffs
that the Province of New Brunswick
does not qualify as a sovereign state so as
to invoke the doctrine of sovereign immunity.
But the authorities show decisively
the contrary. The British North America
Act 1867 gave Canada a federal constitution.
Under it the powers of government
were divided between the dominion government
and the provincial governments.
Some of those powers were vested in the
dominion government. The rest remained
with the [provincial governments. Each
provincial government, within its own
sphere, retained its independence and
autonomy, directly under the Crown.
The Crown is sovereign in New Brunswick
for provincial powers, just as it is sovereign
in Canada for dominion powers . . . It
follows that the Province of New Brunswick
is a sovereign state in its own right, and
entitled, if it so wishes, to claim sovereign
immunity “. So, these are just illustrations
of the possibilities that exist in international
law for the investigation of the constitutional
provisions of foreign states for one state
to be satisfied that those constitutional
requirements are met and nobody suggests
in those circumstances there is an interference
in the domestic affairs of the state
concerned. Mr Chairman, with your
leave may I turn to the question you have
just put to me. I was influenced in what
I said in paragraph 9 of my submission
to the Committee by my reading of the
speeches which were made in the House
of Lords and in the House of Commons
in 1867 at the time of the Second Reading
of the British North America Bill of that
year. At that time the Earl of Carnarvon
was the Secretary of State for the Colonies

[Page 119]

and he made a long and very important
speech. Obviously I must not read it all
to you but, if I might, there are one or two
passages that will explain why it is I said
what I did. At one point at Column 576
of the House of Lords Hansard for 19
February 1867 Lord Carnarvon said:
” But it is also to be remembered that—
unlike every other federation that has
existed—it”—that is, Canada—” derives
its political existence from an external
authority, from that which is the recognised
source of power and right—the British
Crown. And I cannot but recognise in
this some security against those conflicts
of State rights and central authority which
in other federations have sometimes
proved so disastrous.” Then at Column
582 there is another short passage: ” But
he “—that is, Lord Carnarvon—” should
be glad for the House to understand that
the Bill partook somewhat of the nature
of a treaty of union, every single clause in
which had been debated over and over
again, and had been submitted to the
closest scrutiny, and in fact, each of them
represented a compromise between the
different interests involved.” Then Mr
Adderley, Under-Secretary of State, in
the House of Commons on 28 February
1867 said at Column 1169 the following:
” It will, however, I think, be manifest,
upon reflection, that, as the arrangement is
a matter of mutual concession on the part
of the Provinces, there must be some
external authority to give a sanction to the
compact into which they have entered.”
Then again a few lines later he said: ” If
again, federation has in this case specially
been a matter of most delicate treaty and
compact between the Provinces—if it has
been a matter of mutual concession and
compromise, it is clearly necessary that
there should be a third party ab extra to
give sanction to the treaty made between
them.” It was that kind of remark, Mr
Chairman, which led me to make the
comments that I did in paragraph 9.

Chairman] Thank you very much indeed,
that is very interesting. You have given
us some important sources for the federative
nature of the Canadian Constitution.

146. Supposing there is in Canada a
constitutional convention that a certain
degree of, if not unanimity then provincial
consent is necessary before requests are
made to the British Parliament for amendment
of the BNA Acts and so on, what
would you say to the argument that that
constitutional convention is exclusively
created by Canadian politicians over the
decades and is enforceable only by the
electorate in Canada?—(Mr Lauterpacht)
The question suggests really that
there are two sets of conventions—
Canadian and British—and that it is only
to the Canadian conventions that one
looks, but I venture to Suggest that that is
really not in accord with the simplest and
most natural analysis of the present
situation. As I understand it, there is a
single constitutional system that operates
in relation to Canada, the Canadian
constitutional system, within which there is
a role for the British Parliament. It is, of
course, possible to look at the situation in
other ways, rather theoretical. One is that
we are faced partly by a problem of
Canadian constitutional law and partly by
a problem of British constitutional law.
Another way yet again is to regard international
law as added to those two
possibilities, but the most straightforward
way of looking at this situation is simply
in terms of Canadian constitutional law
in which the British Parliament has this
special role, to cite the words of Mr
Adderley, ab extra and the evolution
of the convention has taken place within
that system. But the system has to
be seen as a whole and is not limited to
just evolution within the geographical
area of Canada. The convention has to
be seen as a whole arising from activities
both in Canada and in the United Kingdom.
So, I do not think it is right to say one
must look at this simply as a problem of
Canadian constitutional convention enforceable
in terms of Canadian political
sanctions. We have simply one convention
here which has grown up in two parts.
It would not be right, for example, to say
that you look at a convention or split up
a convention into parts by trying to identify
the various entities upon which the convention
operates. If one were to speak
of the conventions relevant to the dissolution
of Parliament in this country, one
does not say the convention is a convention
in three parts affecting the Monarch, the
Prime Minister and the House. One
speaks of a convention which controls the
activities of all parties, and that is how I
see the relevant conventions in this situation.

[Page 120]

147. But could it be validly argued,
nevertheless, even if there is one convention
in two parts on either side of the North
Atlantic, that the part in Canada has
developed in one way, namely, that you
must have some measure of provincial
consent before making a request to the
UK Parliament for amendment to the
BNA Acts, but on this side of the North
Atlantic since 1940 it has gone in a slightly
different direction judging by Government
statements since 1940, that we will not
look behind the request from the Canadian
Federal Government to see whether or not
the Canadian part of the Constitution has
been adhered to?—(Mr Lauterpacht)
It is important to note that a convention
arises from practice and that the convention
must be the reflection of that
practice and nothing else. The convention
cannot go wider than the practice. The
practice relating to Canadian constitutional
amendment is a practice which, it is true,
in simple factual terms arises in part in
Canada and in part in the United Kingdom,
but although there are two places where
things are happening it is all the same
constitutional practice related to the
development of a single convention. It is
not possible for the United Kingdom
Parliament to say, we may separate ourselves
from what goes on in Canada
because the United Kingdom Parliament
is part of the Canadian system and,
therefore, it would not be right to say
that because it is suggested that the convention
has developed in one way in
Canada and in another way in the United
Kingdom, therefore the United Kingdom
Parliament is concerned only with what
has happened in the United Kingdom.
It is evident that what has happened
in the United Kingdom has only
been intended as a reflection of the total
convention as it has developed in Canada
and in the United Kingdom and, if I may
stress this point, the convention as stated
in the United Kingdom Parliament has
been more loosely and broadly stated
than the practice warrants. The practice
has never been one which involved an
amendment to the division of legislative
powers between the dominion and the
provinces in the absence of provincial
consent, and since there has never been
that practice there can never be said to be
a convention which deals with that point
except in terms of requiring unanimous
provincial consent for amendments.

148. If I understand correctly the various
documents and so forth you have just
read out—and you will appreciate it is
very difficult to understand off the cuff
something like that which is read in
public—all those documents were simply
referring to the right of other bodies or
other countries to inquire about the
constitutional provisions of another country
but not in any way in the sense that those
other countries or external bodies had
any right to amend or modify the constitution.
Am I right?—(Mr Lauterpacht)
That is quite right. This document
related only to the treaty-making power
of States.

149. So, they have no relevance to the
situation in which one country is either
invited or expected to amend or enact or
change somewhat the constitution of another
country?—-(Mr Lauterpacht) Their relevance
is simply by way of analogy. If
you have a situation where one country
is actually invited to participate in the
constitutional operation of another
country, then by that very fact there can
be no question of improper interference
in the domestic affairs of the country that
issued the invitation.

150. But the improper interference does
not arise on inquiry but could arise, or
could be argued to arise, if in fact the
other country was purporting or intending
to take some action which affected the
substance of the Constitution?—(Mr
Lauterpacht) With respect, no, because
there cannot be a culpable or condemnable
interference in the domestic affairs of a
country. Perhaps it would be better to
speak in terms of the UK and Canada.
There cannot be an interference by the
UK in Canadian affairs of a kind which
is open to criticism when the role of the
UK in the Canadian Constitution is
established. There is no question here
but that the United Kingdom Parliament
has been given, historically and analytically,
a role in the functioning of the
Canadian Constitution. The United
Kingdom Parliament must participate in
the amendment process. To participate
in the amendment process it has to do so
within the framework of Canadian constitutional
law. In operating within that
framework inevitably it is acting in accordance
with Canadian requirements and

[Page 121]

there cannot be a question of an improper
interference. It has to act in accordance
with Canadian constitutional law.

151. Can I put the question slightly
differently. Since the State of Westminster,
which I gather is one of the key statutes
of this whole argument, Canada and the
United Kingdom have become parties to
a very important international treaty,
namely, the Charter of the United Nations.
It is a fundamental provision of that
treaty, spelled out explicitly, that it is
based on the sovereign independence of
all member states. Does not that provision
override, or could it not be construed
as overriding, whatever was said
in the State of Westminster in 1931?
—(Mr Lauterpacht) I do not see the
Charter as conflicting with the present
situation in any way. I see the Charter
as a perfectly proper parallel instrument
to the present situation. If one approaches
this problem in terms of international law,
which is inherent in the way the question
has been put to me, we have, quite rightly,
two independent sovereign states but
they are in a unique relationship to each
other. There is no other situation in the
world in which one sovereign state is
dependent upon an Act by another sovereign
state for the amendment of the
Constitution of the first. That relationship
is a relationship which, if one approaches
it in terms of international law,
must be identifiable in terms of international
law. Either it is a relationship
of a quasi-treaty character or it is a relationship
of customary international law as it
has specially evolved between the two
states. For present purposes it does not
matter how you classify it, provided you
accept that there are rules of international
law which could be applicable in this
situation. If those rules of international
law accord the United Kingdom Parlia-
ment a role in the affairs of Canada,
within her geographical boundaries, then
there is no reprehensible or improper or
illegal interference by the United Kingdom
Parliament in Canadian domestic affairs
because that very act of the United
Kingdom Parliament stems from the
rules of international law, or inter-
Commonwealth law if you like, that are
operative between the UK and Canada.
To put the point another way, it is no
more an interference by the UK in
Canadian affairs than, say, the activities of
the institutions of the European Communities
or the European Commission of
Human Rights or the European Court of
Human Rights are interferences in the
internal affairs of the United Kingdom.
They are not illegal interferences. They
are not a diminution of British sovereignty
because they arise from acceptance by the
UK of that kind of interference in treaty
obligations. I am saying in the case of
Canada we have a comparable situation.

152. We passed over one small point.
Does it make any difference in law that
some provinces were created by Canada
after the relevant date, 1867? Is their
position exactly the same as the position
of the original provinces?—(Mr
Lauterpacht) It would seem to me that
the position of all the provinces in this
kind of situation must be the same. We
are not confronted here by a situation in
which it is proper to draw that kind of
historical distinction between the provinces.
All enjoy the same equality in
relation to the problem of constitutional
amendment.

Chairman] Thank you very much, we
are very grateful for your help. It was
very clear and precise, thank you.

Examination of Witnesses

153. Minister of State, we are very
grateful to you for coming to see us. You
have referred us more than once to the
statements of Ministers that if a request for
patriation of the BNA Acts were to be

[Page 122]

received from Canada it would be in
accordance with precedent for the United
Kingdom Government to introduce into
Parliament, and for Parliament to enact,
appropriate legislation in compliance with
the request. I think you yourself repeated
that more or less on the 3 December and
said that is the convention, and we also
heard the Prime Minister refer to the
matter yesterday. Without anticipating
the advice Ministers may wish to give in
relation to any future requests, and looking
only to the past, that is to say, to the
precedents and the convention, would you
say those precedents extend to the case
where the request reduces provincial
powers and is opposed by the provinces?
—(Mr Ridley) Mr Chairman, could I
make a general statement first and then
come to answer that question at the end
of what I would like to say first, which is
perhaps more in the nature of a courtesy
to the Committee. We will study with
great interest the written and oral evidence
of Professor Wade and Mr Lauterpacht
and the other material submitted to the
Committee. It would, however, be wrong
for me to attempt to comment on their
substance now. I say this in no sense out
of disrespect for your Committee. Let me
explain. The evidence you have heard
today and other materials which have been
submitted to your Committee and referred
to us have a direct or indirect bearing on the
central question of whether and in what
circumstances it would be proper for
HM Government to recommend to
Parliament that it should accede to a
request from the Canadian Parliament for
the patriation of the Constitution. It
seems to me that it would be wrong or
anyway premature in this public forum for
me to engage now in a detailed discussion
on the merits of possible arguments one
way or another on a case which remains at
this stage hypothetical. There is now
another two months before the Canadian
Joint Parliamentary Committee reports.
There is at least a possibility of modification
of the proposals as they now stand
and in any event relevant questions have
been referred to at least one of the Canadian
provincial courts and are likely to be
referred to other provincial courts. The
Foreign Affairs Committee has received
copies of the written submissions which
were made to the Court of Appeal by
Manitoba on behalf of the Federal
Government and on behalf of various
provincial governments and will know from
them the nature and extent of the issues
which are being canvassed. I should
perhaps add, though I realise it is wellknown
to your Committee, that the whole
issue is a highly controversial and sensitive
one in Canada. Anything which I or any
Foreign and Commonwealth Office officials
were to say in public bearing on the substance
of the matter would be interpreted
in many quarters there as interference in an
internal matter and would be bound to stir
up further controversy and thus perhaps
impede the orderly consideration of this
difficult question. I therefore hope you
will permit me not to expand on the Prime
Minister’s statement yesterday in Parliament.
My team will respond on questions
of fact so far as they are in a position to do
so at once. If there are questions of fact
on which they cannot respond immediately,
they will be happy to furnish further
material in writing.

Mr Griffiths] Point of order, Mr Chairman.
Am I correct in understanding what
has happened? We invited the Foreign
Office to come and give evidence on their
paper. That paper was not confined;
it extended over the whole range of this
Committee’s inquiry. The Minister of
State then very courteously volunteered
yesterday himself to head the Foreign Office
team which has come before us. Am I
correct in now understanding that the
Minister of State has virtually said in his
opening statement that he is not, in fact,
going to deal with the matter on which
we had summoned the Foreign Office to
give evidence? If so, I suggest that this
Committee might as well cease to hear
evidence from the Foreign Office and proceed
to hear evidence from others who are
more willing to deal with our proper questions.

Chairman] I do not think it is a point
of order for me, Mr Eldon Griffiths. It is
well known that Ministers can answer
in whatever way they propose and think
right and it is not a matter for order how
they do that.

154. With respect, I must contest that
ruling. We invited or summoned the
Foreign Office to come here to deal with
their paper. The Minister of State has
now said that there will be various areas

[Page 123]

of their paper which he will not deal
with. Then the Committee must consider
what is the position when we invite the
Foreign Office to come here and they
unilaterally tell us they will deal only with
bits of what we want to examine on. That
is very much a point of order and a matter
of procedure.—(Mr Ridley) Perhaps I
could help. I am very happy to respond
to the questions you may want to put to
me. I was merely stating a general
position out of courtesy to the Committee
if there appeared to be certain areas where
I could not give you a full answer, to warn
you in advance of that, but to each question
that you wish to put to me I will give you
the fullest answer that is within my
power.

155. In your statement you did mention
at one point the possibility of having a
request from the Canadian Federal Parliament
for patriation of the Constitution.
Are we to take it that your remarks also
apply to the separate issue of amendment of
the BNA Acts because they are two separate
and distinct things?—(Mr Ridley) We
cannot respond to that question unless we
know what request is made to us.

156. But, with respect, you did mention
the possibility of patriation in your statement,
so it has taken account of something
that we may receive that we have not
received. I am not trying to make any
political points. I am just saying does
your statement also extend to a request
for amendment of the BNA Acts, which is
not the same as patriation? (Mr
Ridley) My statement said I could not
prejudge any request that might be made,
whether it is for patriation or amendment.
Perhaps any form that patriation might
be required to take would be a form of
amendment to the British North America
Acts anyway, so the distinction from the
point of view of what I was saying I do
not think is real.

157. Is there not a certain difficulty
here? You say that you are not going to
be free for obvious diplomatic reasons
to comment very freely until you receive
the request of the Canadian Government.
Does not that statement in itself show you
are going to judge the request of the
Canadian Government? Whether it be
good or bad and whether it is the sort of
thing you would recommend to the House
or not, you are exercising your judgment
in respect of a request of the Government
of Canada ? If you are saying you are not
going to do that, are you not saying you
will seek to enact through the British
Parliament anything, but anything, that
the Canadian Government asked you to
do?— (Mr Ridley) The position is that
we have stated the precedents in this
matter, and that we have not yet, and
cannot yet, say what action we would take
in response to any particular request which
is made by the Canadian federal authorities.
So until we know what the request is,
it must be the case that we cannot give
a response, which, to some extent, is
exactly what you asked.

158. So the precedents are not automatic;
you will have to see the request and then
decide whether it fits the precedents,
or whether it does not. However, I
understand in a way—perhaps I would not
say entirely clearly—that you take the
view that “The precedents be damned;
it is automatic action by the Houses of
Parliament in England”?—(Mr Ridley)
Perhaps we could take your questions as
you have put them.

159. I think that might be a good idea.
My first question is: are there precedents
that, where a request is received to reduce
the provincial powers, and it is opposed
by all the provinces, the British Houses of
Parliament should pass them?—(Mr
Ridley) In every case in the past, where
a request has been received from the Parliament
of Canada for a change to be made
to the British North America Acts, the
United Kingdom Parliament has introduced
in Parliament, and Parliament has enacted,
appropriate legislation in compliance with
that request. This is the precedent to
which ministers have referred in their
public statements, and those statements
(to which your question refers) are to be
understood against that factual background.
The previous cases have not
included one where the request reduces
provincial powers or/and is opposed by
all the provinces.

160. Do you say that it would be in
accordance with precedent for the United
Kingdom Parliament to enact a Bill
abolishing the Senate and the provinces,
on the request of the Government and the

[Page 124]

House of Commons of Canada only?—
(Mr Ridley) None of the previous cases
has included a request for the enactment
by the United Kingdom Parliament of a
Bill of the kind which you envisage in
your question; or, indeed, any request of
the Government and House of Commons
of Canada only, as distinct from a request
from the Senate and the House of Commons
of Canada.

161. How could a precedent be established
extending to a request to reduce
provincial powers without provincial consent,
when provincial powers have never
once been reduced without provincial
consent, and no United Kingdom public
statement by United Kingdom ministers
has ever referred to such a contingency?
—(Mr Ridley) The statement that
provincial powers have never once been
reduced without provincial consent is one
on which there may be differences of view.
That is, indeed, apparent from the written
submissions which have been made to
the Court of Appeal for Manitoba, of
which the Committee have been furnished
with copies. In the circumstances, I
would not wish to offer any comment at
this stage.

162. With regard to the precedents to
which you have been referring, Minister,
are they entirely those of letters, acts and
official documents, or do they extend
sometimes to extempore statements by
former secretaries of state or ministers in
the House of Commons?—(Mr Ridley)
The precedents to which I have been
referring are the actions of the United
Kingdom Parliament in meeting requests
of the Canadian Parliament. Ministers
not only of this Government but, I think,
of nearly all the previous Governments,
have simply rested the case for presenting
Bills to Parliament on the precedents of
what has happened in the past.

163. Yes, but would you agree that the
possible request which this Parliament
may receive is unprecedented?—(Mr
Ridley) I must say that that is hypothetical,
because until we know what request we
receive, I cannot say whether it is unprecedented.

164. Can I refer you to the debate in
the House on the British North America
(No. 2) Bill in 1949, when the (then)
Secretary of State for Commonwealth
Relations, the noble Lord Noel-Baker,
said: ” With regard to matters which are
of mixed federal and provincial importance,
the Canadian Government are holding on
10th January next a conference of the
federal and provincial governments, and
it may be—it may not, of course—that
as a result of that conference we shall be
asked to pass another Bill. We must
wait and see “. Does that infer that he
at least thought that a Bill, or a request
of that character, would arise out of the
result of a conference between the federal
and provincial governments ?—(Mr Ridley)
I should have thought not. I should
have thought that that statement simply
referred to the possibility of a request coming
from the Canadian Parliament for
this Parliament to enact legislation; and
the ” wait and see ” was to wait and see
whether such a request came.

165. Minister, we have asked the Foreign
Office previously whether there were any
statements made by the United Kingdom
Government, which could be construed
as an undertaking to Canada, in view of
the Statute of Westminster to accede to
any federal request, regardless of provincial
concurrence or opposition. We referred
to statements between June 1966 and
October 1980. Are we right to take it
that that answer from the Foreign Office
also applies to statements made since
1931 ?—(Mr Ridley) The Foreign Office
statement that it is not aware of any public
statement by HM Government on this
issue, going beyond the statements in
Parliament referred to, was intended to
indicate that the Foreign and Commonwealth
Office knows of no public statement
by HM Government, of the kind in question,
which is more capable of being
regarded as an undertaking to Canada
than the statements in question. There
have, of course, been other public statements
by HM Government, relevant to the
issue, in the period since 1931, including
the statement by Sir William Jowitt which
is referred to in question 4(c). However,
it is the case that the Foreign Office is
aware of no such public statement which
is more capable of being regarded as an
undertaking to Canada than the statements
in Parliament to which reference was made
in our earlier reply.

[Page 125]

166. Just to get it clear on the record,
the Foreign Office does regard the statements
referred to as, indeed, undertakings
to Canada?—(Mr Ridley) They speak
for themselves in their own context.

167. Do those statements also apply to
the situation where provincial powers are
being reduced, or it is proposed they that
be reduced, against the opposition of all
or most of the provinces ?—-—(Mr Ridley)
Those statements were statements made to
Parliament in their own particular context.
In my own view and in the Foreign Office
view, they are to he understood in the
light of those contexts alone. They were
not expressed as undertakings to Canada.

168. The Minister of State was made
aware, before he came here, of the questions
that the Committee wished to direct
to the Foreign Office witnesses, and he is
plainly reading from a brief that replies to
those questions. I would like to ask him,
since he has courteously volunteered to
come here, if he is prepared to answer, on
the authority of the Government, questions
from the Committee that do not lie within
that brief for which he has got prepared
answers?—(Mr Ridley) Of course.

169. Good. Could I ask you if you
believe it is a sound position for a Foreign
Office minister to come before this Committee
to give evidence on a matter where
the Canadian Government has not yet
made any request?—(Mr Ridley) The
Committee asked for Foreign Office
witnesses to attend, and I felt it was right
that you should have the opportunity to
question a minister. However, as a
minister, I must say that the Government
is not able to say exactly how it would
respond to any request, until it has seen
the full nature of that request, and I would
have thought that that was an eminently
reasonable position.

170. Could I press it a little bit? We
were seeking from the Foreign Office legal
advice consonant with the many other
pieces of legal advice we have received
from other authorities (some of them of at
least equal eminence to those of the Foreign
Office). With respect, we do not need a
minister to give us legal advice; we need a
minister to give evidence on policy. With
respect, that is what ministers are for.
Can I take it, therefore, that I may properly
ask the Minister of State questions not
about legal interpretation (which, with
respect, is not wholly his responsibility),
but about the policy of the Government,
which I assume he has come here prepared
to deal with?— (Mr Ridley) Of course.
If you wish to ask legal questions, my legal
adviser is here and would be very happy to
try and answer them.

171. I would like to confine myself, in
the circumstances, since we are examining
the Minister, to asking him about matters
for which ministers are responsible,
namely, policy. Is it the policy of the
Government that requests from the
Canadian Government and Parliament to
revise the Canadian Constitution, in a
manner that will derogate from the present
powers of the provinces of Canada, should
automatically be accepted?— (Mr Ridley)
As I said to Mr Griffiths’s earlier question,
we cannot comment upon the substance of
a request which we have not yet seen.

172. I am not talking about a request we
have not seen; I am asking about the policy
of the Government, which I assume the
Minister of State has come to speak about.
Without regard to any request that may or
may not be received from Canada, and of
which we have no knowledge, is it the policy
of the Government that any request from
the Canadian Government asking this
House to change the Constitution of
Canada, to the disadvantage of the
provinces, should be recommended by
HM Government to this House, without
amendment?—(Mr Ridley) We have no
certainty of what any request might
contain. The precedents are—as has been
said over and over again—that the Government
of the day has responded to such
requests by presenting legislation to
Parliament. The Government’s position
remains that they will do exactly that.
However, I cannot comment on what the
request might contain.

173. Then is it the policy of the Government—
and I am speaking strictly to that
matter—that a request from the Canadian
Government derogating from the powers
and rights of the provinces and, indeed, of
other people in Canada, in accordance
with precedent as the Foreign Office
judges it, would be laid before Parliament
without amendment, with the recommendation
of HM Government that it be passed?

[Page 126]

—(Mr Ridley) You are presuming what
may be in the request.

174. With respect, I am presuming no
such thing.—(Mr Ridley) You are
presuming what any such request might
contain. However, it remains the Government’s
policy—as the Prime Minister said
yesterday—that when a request comes we
shall try to deal with it as expeditiously
as possible, and in accordance with the
precedent. But I cannot state categorically
what that request might contain, as I do
not yet know.

175. Would the Minister accept it as
correct that when the United Kingdom
Parliament enacts laws for Canada we
are acting, as it were, as an integral part
of the Canadian constitutional system?
—(Mr Ridley) I think that there may
well be doubt about what is meant exactly
by the saying which you have had given
to you in evidence, ” when the United
Kingdom Parliament enacts laws for
Canada it is acting as an organ or part of
the Canadian constitutional system”,
particularly in relation to the concept of
acting as an organ of the Canadian constitutional
system. We would have room
for doubts about that. The Foreign
Office, of course, accept that when the
United Kingdom Parliament enacts legislation
in compliance with a request from
the Canadian Parliament for a change in
the British North American Acts, it is
acting as part of the process of Canadian
constitutional amendment.

176. Is not that the same thing?—
(Mr Ridley) It is the phrase ” an organ
of the Canadian constitutional system”
which is doubtful. This is, after all, a
sovereign Parliament, it can act how it
wishes. So I do not think it would be
right to describe it as ” an organ of the
Canadian constitutional system “.

177. So you would regard it as perfectly
proper for the British Parliament,
whichever Government it happened to be,
to act as it wishes, whether or not that
wish agreed with the wish of the Canadian
Federal Government?—(Mr Ridley) The
precedents apply to the Government, and
it is, of course, for Parliament to interpret
its own position in relation to how it
sees the precedents.

178. Would it be reasonable for the
British Parliament—let us leave out the
Government for the moment—to pay
attention to judgments of the Canadian
Supreme Court in matters of constitutional
amendment?—(Mr Ridley) I would not
suggest that there would be any impropriety
involved in regard being had, in the
British Parliament, to any relevant decision
or opinion of the Canadian Supreme Court.

179. So that if the Supreme Court had
handed down a judgment that a constitutional
change that affected federal/
provincial relationships in Canada needed
the agreement or support of the provinces
themselves, it would be quite right for the
United Kingdom Parliament to pay
attention to that judgment?—(Mr
Ridley) There are two sides to the answer
I would give. The first is that the United
Kingdom Government and the United
Kingdom Parliament are obviously not
subject to the jurisdiction of the Canadian
courts; nor would any question of sub
judice in Canada arise for the United
Kingdom Parliament. On the other hand,
it is perfectly proper and right for Parliament
to take cognisance of anything that
it so wishes, including, of course, the state
of any litigation that might be taking
place in Canada.

180. So you are really saying that it
would be entirely proper for the Parliament
of Westminster to examine the merits of
constitutional changes that the Federal
Government of Canada might propose,
and there will be nothing wrong at all in
Parliament saying either ” Yes, this is
splendidly enacted” or ” We are very
sorry, but we think it is not a fair arrangement
as far as Canada is concerned ” ?
—(Mr Ridley) I must say that nothing
that could be said should imply that it
was wrong for Parliament to do anything
in this country. Parliament is sovereign
and can take into account anything that
it so wishes; it can take cognisance of
anything that it so wishes. What Parliament
must also concern itself with in this
matter is the propriety of what it may
decide to do. In that sense, it will always
want to take account of the conventions
and its proper position as the recipient
of a request from an elected Government
in Canada, which has made a request
to the United Kingdom Parliament for a
change. Those are the considerations

[Page 127]

which Parliament must keep in its mind.
I do not think that any question of propriety
is at stake; it is a question ultimately
of judgment.

181. Before you leave this point, you
used the word “propriety”, Minister.
What is the meaning of that word?
Political propriety, I presume? You say
that Parliament here is sovereign. Of
course it is. We can do anything. You
are not suggesting it would be constitutional
for us utterly to disregard section 7 of the
Act of 1931, are you? We can do it,
but it would not be constitutional, would
it?—(Mr Ridley) No. I used the word
in the obverse of “impropriety”. I
suggested that there was nothing improper,
there was no impropriety, in having cognisance
of anything that had happened.
What the word means in that context is
that Parliament must be free to take
cognisance of anything that it likes.

182. Exactly. I understand your
meaning, but I do hope you will bear in
mind that there is a very great difference
between the word ” propriety ” (which
quite obviously includes the political
considerations) and ” constitutionality”
(which has regard to the law and to the
conventions). —(Mr Ridley) As I said,
the convention is the matter which controls
what the Government should propose to
Parliament, but Parliament may well feel
itself also bound by that convention. That
is a matter for Parliament.

Chairman] No doubt all that is constitutional
is also propriety, but all that
is propriety is not constitutional.

183. I have one further point, if I may,
which may not be a fair one, I do not know.
It has been put to us this morning, by
very distinguished international experts,
that the kind of proposition which is
likely to come from Canada will be without
precedent in terms of the British North
America Act and the Statute of Westminster.
In that case, would it not be
quite fair of the United Kingdom Parliament
to make a completely independent
judgment; and if it did so, could this be
construed as in any way unfriendly to
Canada?—(Mr Ridley) The word ” precedent”
is construed in two different
ways. Firstly, what are the precedents for
action on the past fourteen occasions by
the United Kingdom Parliament? That
is the sense in which we use the word
“precedent”. Now, Mr Hooley, you
import a new meaning of the word ” precedent
“, as to whether any particular
request for action has a precedent in its
form. I believe that if you look at all
the previous requests you will find that
there is no precedent for any of them
either. SQ I wonder whether one derives
much advantage from seeking a precedent
behind any particular request, in the sense
that a similar request has been called for
before. Obviously, once a particular
enactment has been made, it is unlikely
that a similar request could or would be
made with similar enactment. So it is,
to me, hard to say how there could ever
be precedents for a particular form of
request to the Parliament of the United
Kingdom to enact.

184. Minister, are you really telling us,
then, that there is no real distinction in the
Foreign Office’s collective mind, and that
of ministers, between a request for patriation
(which certainly is unprecedented,
since one can only patriate a constitution
once) and amendments to the British North
America Acts (of which there may be a
number of varieties over the past seventy or
eighty years, but which are all technically
amendments of the British North America
Acts)? Are you saying that there is no
distinction between the two?— (Mr
Ridley) Technically, any request to patriate
the Constitution would take the form of
an amendment to the British North
America Act. The form and substance
might be different to any previous occasion,
and in that respect there are no precedents.
However, the only way that the Constitution
of Canada could be patriated (that
is, legally and statutorily) would be by
an amendment of the British North
America Act.

185. A few moments ago, Minister,
you quoted the Prime Minister—who was
no doubt replying having taken advice—
as saying that any request received would
be dealt with in accordance with precedents.
You have now just said—I think, to Mr
Hooley—that, in your view, these in fact
did not exist, since every request was a
new one. Are we, then, to suppose that

[Page 128]

HM Government will now look at any
request on its merits, and not in relation to
any precedent?—(Mr Ridley) No, I
think Mr Spearing has not quite got the
meaning of what I said. I said that the
precedents to which the Prime Minister
referred, and to which ministers and myself
have referred, are precedents that,
when a request has been received, action
has been taken to propose legislation to
the United Kingdom Parliament. Those
are the precedents to which I am referring.

186. In other words, it is a limited precedent
purely of setting legislation before
the House, and not necessarily taking a
view about its merits?—(Mr Ridley)
That is the precedent. That is what has
happened in the past.

187. So there is no guarantee, even from
HM Government’s point of view now, that
that would continue with advice as to the
merits of the measure?—(Mr Ridley)
Never before has it been usual to take a
view about the merits of the measure which
has been put before the British Parliament.
The precedent has always been simply to
transmit it, in correct legal form, to the
British Parliament. That is the precedent
that I am referring to. I think it does
help if I underline again this distinction
between that type of precedent and the
precedent for any particular course of
action which is requested by the Canadian
federal authorities.

188. But you would agree, would you
not, that on every occasion which has been
mentioned the nature of the request and its
merits, and therefore the nature of the
legislation, has been largely uncontroversial
because of prior agreement in Canada?
—(Mr Ridley) I do not believe that that
is strictly true. I think that some of the
requests for amendment of the BNA Acts
have been controversial in Canada.

189. But they have not been proceeded
with until that controversy had been
resolved?—(Mr Ridley) I do not think
that that, strictly speaking, is true (though
I could perhaps ask Mr Freeland to
comment on the facts of that situation).
I think that some of them have proceeded
before that controversy has been resolved.
It is, of course, a question of degree. The
degree of controversy and the degree of
unresolvedness have always been small
compared perhaps to the situation we now
face.

190. I refer in particular to the precedents
of 1907 and 1943. —(Mr Ridley) I
would just ask Mr Freeland if he wants to
add anything to that. —(Mr Freeland) I
think we have in fact responded to you in
writing earlier about the cases in which
there have been objections. When I gave
oral evidence to you before, you asked me
about a number of cases, as to whether
there had been any where there had been
objections from more than one, two, three
or four. I believe that our response in
writing was that there had been only one
case where there was an objection which
was transmitted to London. There had
been others where there had been controversy
in Canada certainly, but it was the
1907 case that was the one where there had
been an objection.

191. But the Minister will agree, will he
not, that so far, whatever the controversy
may have been or may not have been in
Canada, there has been no controversy
among Members of Parliament or, indeed,
any others inside the United Kingdom?
—(Mr Ridley) I would need to check
that that is so, but certainly the controversy
has been at a very low level in the
past.

192. There would appear to be two
options, whatever the kind of request that
may come (if any) from Canada. One
would be to act automatically on any
request that the Canadian Government and
Parliament put to us: the other would be to
retain a discretion to examine such
requests and to see whether we thought
they were proper in terms of the principles
of the Canadian Constitution. If we take
account of any litigation in the Canadian
courts, are we not rejecting the automatic
option?—(Mr Ridley) I would not
suggest that there would be any impropriety
if account were taken in the United
Kingdom Parliament, as it was in the
Newfoundland case. Perhaps I could
refer you to the answers to the original
questions 9 and 13 which you put to us,
of relevant past or present litigation in the
Canadian courts.

[Page 129]

193. Minister, on an earlier occasion
when Mr Freeland gave oral evidence, in
reply to Question 1342 on the question of
whether the Parliament here could take
account of litigation in the Canadian
courts, Mr Freeland said that this was not
to be considered as an abstract question,
and that it needed to be looked at in the
light of circumstances as they are. Does
this not amount to saying that there may
be circumstances in which we could probably
take into account litigation before
the Canadian courts, on a matter which
was likely to go before the United Kingdom
Parliament?—(Mr Ridley) I think the
answer to that is that it is not a question
of law; it is a question of propriety (if I
may go back to the old word) as to whether
the United Kingdom Parliament thinks
that it is right to proceed, rather than a
question that it would be improper to
proceed. There can be no way, that I
can see, that the Canadian courts could
have any jurisdiction or influence over the
United Kingdom Parliament.

194. But can one make a distinction
between what it would be proper and
propriety for the United Kingdom Parliament
to do, and what it might be proper
for the United Kingdom Government to
propose to our Parliament to do (because
while the Government proposes in this
matter, Parliament disposes, and that is
generally accepted)? Do you make any
distinction, in your comments in answer
to that question, between the attitude of
the United Kingdom Government and the
attitude of the United Kingdom Parliament?
—(Mr Ridley) No, I did not
intend to imply that. Of course it must
again vitally depend upon the nature and
stage of any litigation, and there is a
precedent of litigation accompanying a
request from the Canadian Parliament.
It is the 1949 example. You know the
history, Mr Deakins, I do not have to
go over it.

195. On questions of law, no doubt the
House will wish to hear from the law
officers of the Crown, rather than from
ministers with policy responsibilities.
Could I ask the Minister of State a number
of questions that start on the premise that
I have no regard whatsoever to any request
that the Canadian Government may or
may not make of this place; I ask him
questions only of policy. I ask him first,
has he, or any of his colleagues, been in
receipt of messages or representations from
the Canadian Government, that might
loosely come under the heading of
” pressure ” ?—(Mr Ridley) No.

196. Thank you. Have you had, or
do you, or any of your colleagues, intend
to have, any meetings with representatives
of the Canadian provinces, at whatever
level?—(Mr Ridley) Any visitor from
Canada who wishes to see United Kingdom
ministers is normally welcomed, provided
time and opportunity can be created. It
is normal for such requests to come through
the Canadian High Commission in London,
and often a representative of the Canadian
High Commission accompanies a provincial
visitor. There has been at least one
such visit in recent weeks, which has taken
place.

197. I interpret that to mean (I hope,
correctly, but perhaps the Minister of
State will confirm it) that if a Canadian
provincial prime minister wished to be
seen, he would be seen?—(Mr Ridley)
Absolutely. It would be most discourteous
of me, or of whichever minister he wanted
to see, to refuse to see him.

198. In so far as any matter pertaining
to the federal/provincial relationships in
Canada were before the Canadian courts,
at whatever level, would it be the policy
of HM Government to avoid making
recommendations to Parliament about the
constitutional change, until those judicial
processes in Canada had been completed?
—(Mr Ridley) No, not necessarily,
because, as I say, there is such a degree
of variation in the possible nature of such
litigation that it would be wrong to give
a blanket answer yes or a blanket answer
no. There is a precedent for proceedings
starting in Britain while litigation was still
going on in Canada. Equally, I suppose
one can imagine circumstances of such
grievous legal problems that it might be
inappropriate to proceed until they were
resolved. It is a hypothetical question,
but I hope I have given fair answer to it.

199. Is it the policy of the British
Government to find ways and means of
exporting to Canada (which is, from our
point of view, the obverse of their wishing
to patriate back to Canada) the whole

[Page 130]

future constitutional development of
Canada?—(Mr Ridley) We can only
act—I am sure this is right—under the
conventions and in real political possibilities,
on a request by the federal authorities
to change the British North America Act.
That means that it would be, I think,
quite wrong for the Government or
Parliament in the United Kingdom to
propose unilateral amendment of the
British North America Act, which had
not been requested by the Canadian
Federal Parliament. Therefore, it is not
HM Government’s policy to seek to do
that under any circumstances.

200. Since this is, by any measure, a
matter of constitutional importance to
the United Kingdom as well as to the
Canadians, in so far as the United Kingdom
is a party to the British North America
Acts, will not the Minister of State, if
not by himself giving a firm answer,
undertake to get an answer to the Committee
on the point that it would be no part
of the Government’s intention to attempt
to put a measure of this sort through the
House of Commons on the basis of the
whips?—(Mr Ridley) I think I must
rest on what I fear will have been a
tedious repetition to the Committee: that
that again is hypothetical.

201. Minister of State, in so far as the
House of Commons or the British House
of Parliament is acting as a part of the
Canadian constitutional scene, would it
not be more appropriate for the Canadian
Government to issue us with the whip,
rather than HM Government?— (Mr
Ridley) I wish the Committee well!

202. Minister, I think you will have
read—and I assume you have—the very
clear memorandum of Professor Wade,
and perhaps heard him this morning.
He sets out very clearly his view of the
Constitution of Canada as a federation.
Would you not agree that any assumption
(which I believe the Government have
made) concerning automaticity, in respect
of requests which came alone from the
Federal Government, was contrary to
his view of the Canadian Constitution ?—
(Mr Ridley) I do not consider it to be
right at this stage, given the existence of
legal proceedings in the Canadian courts,
for me to comment on these arguments
of Professor Wade’s. In addition, I am
afraid I did not hear his evidence this
morning.

203. I am sorry you did not hear his
evidence. However, I am not talking about
any proceedings which may be occurring
in Canada; I am talking about proceedings
and evidence to this Committee. Perhaps
you would tell us—because I may be asking
you an unfair question—whether you
have had an opportunity to see the memorandum
of Professor Wade, to which I
just referred?—(Mr Ridley) I have seen
it. However, I think my point still stands,
that the matteis which were in that memorandum,
and perhaps in the evidence which
you received this morning (which I have
not heard), are the subject of legal proceedings
in Canada, and it would, I
think, be wrong for me to express opinions
upon them until the Canadian courts have
given their decision.

204. I am not aware that the sub judice
rule extends across the Atlantic, and I am
referring to proceedings of this Committee.
If you are saying that you think it is unwise
for HM Government to comment on the
memorandum of Professor Wade, then, of
course, you are quite at liberty to do so.
Is that in fact what you are saying to us ?
—(Mr Ridley) What I am saying is that
the exact legal nature of the relationship
of the federal authorities and the provincial
authorities in Canada is a Canadian matter
and one which should be determined, if
there is dispute, in the Canadian courts.
Therefore, it is quite wrong for a British
Minister to express a view about what
would be right or what would be wrong in
that argument, because I am not responsible
for the interpretation of the state of
law in Canada.

205. I do not think I was asking you
about what was right or wrong with it;
I was asking you about the evidence that
Professor Wade gave, relating to that
Constitution of Canada in its federal
structure, which I rather believe was a
matter for this House, both in the original
British North America Acts and, indeed,
in section 7 of the Statute of Westminster.
Can you tell us whether or not your
view of the Canadian Constitution is
similar to that of Professor Wade?—
(Mr Ridley) That is what I think I should
not attempt to do, because to do so would

[Page 131]

be for the British Government to express
an opinion about what is really a Canadian
matter, and I do not intend to do that.
It is particularly important that I should
not seek to do that, since the matter is
before the Canadian courts, and it is for
them to interpret, and not me.

206. Then can you tell the Committee,
other than the quotation which you have
mentioned from the Prime Minister, whether
or not HM Government have given some
indication of what I term ” automaticity ”
to the Government of Canada?— (Mr
Ridley) The statements which have been
made in this respect by ministers are on
record, and the Prime Minister’s is one of
them. However, any other communications
between the United Kingdom Government
and the Canadian Government are,
of course, confidential, and I would be
wrong to say what they are.

207. On this point, would you not agree
that in the event of some automatic guarantee
or suggestion having been made, it
would be contrary both to the facts of
section 7 of the British North America
Act and, indeed, the distinctions made
between the two types of amendment in the
1949 (No. 2) Act to which I referred earlier ?
Do you see those as compatible?— (Mr
Ridley) I think that the only position that
it would be right for HM Government to
take, in advance of the receipt of a special
request, would be that it would be our
intention to abide by the precedent that the
United Kingdom Government proposes to
the United Kingdom Parliament to enact
any request which is received from the
properly constituted Parliament of Canada.
That is the Government’s position, and
nothing that I have said this morning
changes it. What I cannot do is to discuss
a hypothetical request which has not been
received.

208. If you, as a minister, cannot express
an opinion on this subject of federal/
provincial relationships, for the major
reason that litigation on the matter is
going through the Canadian courts, a
fortiori that principle must also apply to
the United Kingdom Government. How,
therefore, could the British Government
even consider putting before the British
Parliament an amendment to the British
North America Act, which could affect
those federal/provincial relationships,
while such litigation was going on? That
would be far worse than actually expressing
an opinion; it would be actually
taking action while that litigation (which
you say must be borne in mind) is still
continuing, would it not?—(Mr Ridley)
But surely there is a distinction between
asking me to comment upon what is a
domestic Canadian position, and our
responsibilities in this country of acting
on a request according to precedent, if it
would be received. It is not necessary
to comment or to take a view about a
domestic Canadian matter, in order to
fulfil our obligations to act in accordance
with the precedent.

209. Minister of State, you have, I
think, answered this question in one way
or another before, but perhaps, as a
matter of record, I could ask you this.
You said a number of times that you cannot
anticipate the advice which ministers will
give to Parliament, if and when a request
has been received. However, are we not
entitled to conclude that there is in fact
no clear, simple and universally applicable
constitutional principle concerning action
on such requests (because if there were,
you could say now what it is), but that the
true principle must therefore be simply
that every request should be treated by the
United Kingdom Parliament in the light
of all the circumstances, legal, litigious,
constitutional and political?—(Mr
Ridley) Apart from desiring not to anticipate,
at a time when no request has been
received from Canada, the advice which
ministers would wish to give to Parliament
in the light of such a request, the
Foreign Office is concerned not at this
stage to express substantive views bearing
on matters in issue in legal proceedings in
Canada. The Foreign Affairs Committee
has received copies of the written submissions
which we made to the Court of
Appeal for Manitoba on behalf of the
Federal Government and on behalf of
various provincipal governments, and
will know from them the nature and extent
of the various issues which are being
canvassed. In these circumstances, I
trust that my wish to refrain from expressing
governmental views on the matters
raised by this question and, if I may say
so, questions 6 and 7, would be understood
and accepted by the Committee.

[Page 132]

210. I did not quite catch the last part
of your remarks there, Minister, because
I was just about to put to you the two
remaining questions of which we had
given notice, but perhaps I could put them
for the record. Do you agree, first of all,
with the view that any and every kind of
enquiry by our Parliament here into the
degree to which there had been consent
of all or most of the provinces to a
Canadian request for amendment of the
British North America Acts, would amount
to interference in Canadian internal
affairs?— (Mr Ridley) I think I have, in
a sense, answered that in my last answer.
Again, it is a hypothetical question,
because we do not know what the request
will be,

211. I will put the last question,
although I may get the same answer.—
(Mr Ridley) I am afraid you will!

212. I think it is important to get it on
the record. Do you agree that any and
every refusal by our Parliament here to
act in accordance with a request of the
Canadian federal authorities for amendment
or patriation of the British North
America Acts would be a violation of
some constitutionally correct practice or
precedent, or would be in any way or in
some other way constitutionally inappropriate?
—(Mr Ridley) There is certainly
no precedent for a refusal, I will add to
the answer I have already given.

213. Could I add one final comment to
revert to something the Minister said
earlier, about whether or not patriation
was amendment of the British North
America Acts? I confess, without being
a technically qualified person, I find this
a little difficult to follow. Surely a request
for patriation of the Canadian Constitution
is not merely an amendment of the British
North America Acts; surely it would
amount to a repeal of the British North
America Acts? An amendment would
leave the British North America Acts still
on the Statute Book. However, I would
have thought that a request for patriation,
mutually agreed between Canada and the
United Kingdom, would surely be to
finish with the British North America Act
once and for all, and would mean that we
should wipe the British North America
Act out of the Constitution once and for
all?—(Mr Ridley) I will ask Mr Freeland
if he has a view on that.—(Mr Freeland)
I think there are probably different ways
in which you can achieve patriation.
Equally, it does seem to me that probably
one would not want to remove from the
British Statute Book the British North
America Acts.

214. That, in my simple language, would
be repeal, not amendment, because the
idea of amendment means that the basic
Act still remains on the Statute Book,
does it not?—(Mr Freeland) Yes.—
(Mr Ridley) It depends on the nature of
the amendment.

215. In practical terms, Mr Freeland,
would it not be just a little more drawn
out than that? Would there not, first
of all, be an amendment to the Statute
of Westminster, which would take away
the reserved point about the British North
America Acts; secondly, an amendment
to the British North America Acts, which
added some formula whereby the Canadian
provinces and Federal Government put
together a change of constitution, and that
would in some way be enacted or taken
aboard Canadian statute law; then at
that stage it might be for this Parliament
to repeal the British North America Acts ?
I am not suggesting that this is necessarily
the course that could be followed, but
would it not be something of that type?
—(Mr Freeland) Perhaps I am repeating
myself, but I think this is really a question
of legislative technique. I think there
could be various ways of achieving the
required result.

216. I have a very short question which
is really a matter of humility. Could the
Minister of State say whether he believes
that the collective wisdom and knowledge
of the Foreign Office on this matter of
the constitutional law and practice is
superior to that which resides in the wide
community of people from whom this
Committee has taken, and will be taking,
evidence?— (Mr Ridley) I hope that I
and my advisers are always suitably
humble, but I do not believe that we lack
competence. I believe that we are quite
right in interpreting the position in the
way that we have; and that the fact that
there is dispute about the matter is no

[Page 133]

surprise, because here we are being drawn
into what is really a Canadian dispute,
and it is therefore right, in my opinion,
that we should stick firmly to the line
that we do not want to express opinions
or get involved in what is a dispute about
the Canadian Constitution, in a sovereign,
independent country, which is not our
business. I think the purport of the legal
advice which I have received—to maintain
that impartiality—is absolutely right, in
the light of the status of Canada as a
sovereign nation.

217. In strongly welcoming what Mr
Ridley has said, could I ask him quite
precisely, would he agree, at least with
me, that it would be a far better thing if
this House had not been, or were not to
be, presented with a request from Canada
on patriation, until the Canadians had
resolved their own problems in their own
house and only came to us (as history
unfortunately requires them to do so)
when they had reached a consensus
politically and legally in their own country,
then there could be no question on our
immediately agreeing to what they wish?
—(Mr Ridley) To answer that question
in the affirmative would be to do what
Mr Griffiths and I agreed, in answer to
the last question, was undesirable. For
me to comment upon what the state of the
debate in Canada is, or to deplore the
fact that there is not unanimity or total
agreement, would be to do just what he
suggested I should not do, which is to
pass any comment about internal affairs
within Canada. In that context I cannot
echo the sentiments in his last question.

218. Minister of State, you said (no
doubt not speaking as a jurist) that the
amendment of the Canadian Constitution
was not our business. Unfortunately, it
is our business. That is why we are here
this morning. What was the purpose, in
your mind, of section 7 of the 1931 Act
about amendment; why was it put in?—
(Mr Ridley) It was put in at the express
request, I believe, of the Canadian
authorities at that time.

219. Was it because the provinces had
certain rights which they wished to see
defended? —(Mr Ridley) That is again
to ask me to look behind the Statute, to
say what were the motives of the sovereign
Canadian authorities who made that
request at that time. That, I think, would
be unwise to attempt.

220. Whatever the motives, was it a
result of section 7 in the 1931 Act that
the rights of the provinces were, to some
degree, entrenched?—(Mr Ridley) I
cannot say what were the reasons.

221. No, I did not ask that; I asked
what were the results of section 7, what
does it do?— (Mr Ridley) The result of
section 7 is to leave to the United Kingdom
Parliament the sole power to amend the
Constitution, on a request from the
Canadian Parliament. However, what
were the reasons or the motives for that
being inserted into the Statute is for
Canadians to answer, and not me.

Chairman] I think we must leave the
matter there. Minister of State, thank
you very much indeed, you and your
team have been a great help to us, and we
are very grateful for your kind understanding.

[Page 134]

THE CANADIAN CONSTITUTION: REPLIES TO SUPPLEMENTARY AND

FURTHER QUESTIONS1 (41/80-81/FM)

1. Supplementary to FCO reply to Question 3

On whose responsibility was the 1965 Quebec request ” held in abeyance pending the
result of the Canadian Federal elections ” ? What periods of time elapsed between the
receipt of the request by the UK authorities and (a) those elections and (b) the Quebec
elections and (c) the withdrawal of the request ?

The Quebec amendment of 1965 was held in abeyance by agreement between Canada
and the United Kingdom. The request was received on 15 July 1965. The Canadian
Federal election was announced on 7 September 1965 and held on 8 November. In
January 1966 doubts about the future of the amendment, which was linked with a wider
proposal for the amendment in Canada of the Constitution of Canada, were raised in an
exchange of letters between the Canadian and Quebec Prime Ministers tabled in the Canadian
Parliament (Annex A).

The Quebec election took place on 6 June 1966. In November the Quebec request was
the subject of a question in the Canadian Parliament to the Canadian Prime Minister
(Annex B).

2. Supplementary to FCO reply to Question 6

A. What, if any, significance does the FCO attribute to the fact that Australia had not
then (1935) adopted the Statute of Westminster, given that the Report of the Joint Committee
begins by saying (paragraph 2) that that Statute gave formal and statutory approval
to ” certain long established and clearly understood constitutional principles ” in relation
to the right of Parliament to legislate for the Dominions ?

In the reply to the original Question 6, the FCO brought to the attention of the Committee
that in 1935 Australia had not adopted the Statute of Westminster because it was
considered that the Committee should have before it all the material on which comparisons
could be made between the Canadian and Australian positions. Consideration of the
Petition of the State of Western Australia was accordingly on the basis of pre-Statute of
Westminster practice.

B. Does the FCO consider it proper for the UK authorities to take account of the
federal-provincial constitutional relationships that have developed within Canada,
for the purpose of determining whether a request from a Government and Parliament
entitled to make some such requests is a proper request, by analogy with the Joint Committee’s
decision to investigate and take account of the internal constitutional structure
of Australia for the purpose of determining whether a request from the State of Western
Australia was a proper request, notwithstanding (a) that Australia was really an independent
state in 1935 and (b) that Western Australia was entitled to make some such requests
without the concurrence of the Australian Government or Parliament (by virtue of s. 9(2)
of the Statute of Westminster or of the ” existing constitutional practice ” referred to in
that sub-section) ?

The Western Australian case is not relevant to consideration of the Canadian request.
In the former, a Joint Committee of both Houses of the UK Parliament conceived it as
their duty to consider whether it was proper for a Petition from Western Australia
requesting legislation to effect its secession from the Commonwealth of Australia to be
received by Parliament. Having therefore considered the substance of the Petition,
the Committee concluded that the request was a matter for the Commonwealth of
Australia, one that it would be improper for the UK Parliament to receive and, consequently,
one that Western Australia was not constitutionally entitled to make.

As the FCO stated in its answer to the original Question 6, the 1935 Report of the
Joint Committee does not appear to offer any concrete guidance on the proper response
to a request contained in a joint resolution of both Houses of the Canadian Parliament
for action in accordance with the terms of the Statute of Westminster.

1 See Evidence taken on 12 November 1980, pages 60-62.

[Page 135]

3. Supplementary to FCO reply to Question 8 and to oral Question 64.

Will the FCO kindly summarise the reasons why, or the respects in which, the constitutional
position of Australia and Canada are different in ways that affect the responsibilities
of the UK authorities in relation to requests for UK legislation from (a) the Canadian
Government and/or Parliament, (b) a Canadian Province, (c) the Australian Government
and Parliament, and (d) an Australian state ?

While the FCO cannot anticipate the advice which Ministers might wish to give to
Parliament in any particular case, the position, so far as Australia is concerned, is broadly
as follows:

(c) The UK authorities would be unlikely to question a validly made request for
UK legislation from the Australian Government and Parliament on any matter
which affected only the Commonwealth of Australia. Should the States be
involved, however, the position is covered in the reply to the original Question 7.

(d) To the extent that the Australian States remain self-governing dependencies of the
British Crown, the UK authorities would consider a request from a State for
UK legislation on any matter which affected no other Australian State and/or
the Commonwealth of Australia. Should this condition not be met, the UK
authorities would wish to be assured that the request met with the agreement of
all parties concerned in Australia before considering the question of UK legislation.

In the case of Canada, there has been only one Provincial request, the 1965 Quebec
request. This is dealt with in supplementary answer 1. The Government’s position
on Federal requests was considered substantively most recently in Mr Luce’s reply to a
written question (H.C.Deb 27 July 1979, Cols 499-500).

Question 4

Will the FCO kindly reply to Question 11 of the original list? In particular, does the
FCO consider that the matters referred to in that Question provide some precedent and
basis for the view that it*is proper for the UK authorities to seek to arrive at an opinion
about the ” constitutionality ” or ” unconstitutionality ” of a request addressed to them
in proper form by the Government and Parliament of a Member of the Commonwealth
entitled by law and practice to make some such requests, and to determine their response
to that request in the light of that opinion?

The answer prepared in response to Question 11 of the original list is immediately
below this answer. As stated, it is not thought that the Australian case is a relevant
precedent.

The clause omitted from the Statute of Westminster (the so-called Latham amendment)
was intended to ensure that the UK Government would not act on a request from the
Australian Commonwealth authorities for legislation on purely State matters without
the concurrence of the State or States concerned. Its omission was not primarily based
on its ” constitutionality ” or otherwise but rather (see House of Commons Paper 88
of 1935, pages 109-110) on the interpretation of Section 4 of the Statute. It is clear
from the wording of the Statute of Westminster that the Australian States were not included
amongst the Dominions; Section 4, the request and consent provision, refers
only to the Dominions. Inclusion of the Latham amendment was therefore considered
superfluous.

Original Question 11

What is the significance of the UK Government’s refusal to include in the Statute of
Westminster one of the three clauses requested by the Government and Parliament of
the Commonwealth of Australia (see House of Commons Paper No 88 of 1935, pages
109-110)? What is the significance of the opinion of the UK law officers (ibid, page
110) that it would be ” clearly unconstitutional” for the Australian Government and
Parliament to make a request such as that referred to in the proposed and rejected clause ?

From the reference in H.C. 88, it appears that the amendment in question was that which
was to provide that nothing in the Act should be ” deemed to authorise the Parliament
or the Government of the Commonwealth without the concurrence of the Parliament
and Government of the States concerned, to request or consent to the enactment of any

[Page 136]

Act by the Parliament of the United Kingdom on any matter which is within the authority
of the States of Australia, not being a matter within the authority of the Parliament
or the Government of the Commonwealth of Australia.” (Quoted from K.C. Wheare,
The Statute of Westminster and Dominion Status, 5th ed. 1935, p. 211.)

In view of the different constitutional position of Australia it is not thought that this
draft clause and the opinion of the legal advisers of the Imperial Government referred to
at page 109 is of significance for the case of Canada in 1980.

Question 5

Is the FCO aware of any statement by the UK Government that should be construed
as an undertaking to Canada, in view of the Statute of Westminster, to accede to all
requests by the Canadian Government and Parliament for amendment or repeal of the
BNA Acts, regardless of Provincial concurrence in or opposition to such requests ?
The FCO is not aware of any public statement by HMG on this issue going beyond the
statements in Parliament referred to in paragraph 27 of the FCO Memorandum of
4 November 1980. It would of course be wrong to reveal the details of confidential
discussions between HMG and Canadian Ministers.

Question 6

Did the UK Government, at or about the time of the enactment of the Statute of
Westminster, address to the Government of Canada any communication touching the
effect of the Statute on the constitutional position (a) of the Provinces or (b) relating to
amendments of the BNA Acts, or any communication analogous to the despatch from
the Secretary of State to the Governments of the Australian States dated 6 January 1932
(see especially paragraph 4 thereof—copy attached) ?

We have been unable to trace any communications from the UK Government concerning
the effect of the Statute of Westminster on the constitutional position (a) of the
Provinces or (b) relating to amendments of the BNA Acts, or any communication analogous
to that of 6 January 1932 to the Governments of the Australian States.

Question 7

In view of the FCO replies to oral questions 1373 and 1376, does the FCO dissent from
the view (expressed by Professor W P M Kennedy in the Law Quarterly Review, vol 48
(1932), page 208), that ” the very Dominion-Provincial Conference of 1931 in relation
to the Statute of Westminster negatives on the one hand the claim that in this matter
{of changing the constitution of Canada as contained in the BNA Acts] the Provinces
have no status, while on the other hand it establishes unanimous consent as necessary ”
in relation to at least some such changes ?

Examination of Professor Kennedy’s article entitled ” The Imperial Conferences,
1926-1930—The Statute of Westminster “, (1932) LQR 191, indicates that his remarks
concerned the immediate impact of the Dominion-Provincial conference on the attitude
taken by the Federal and Provincial authorities towards the Statute of Westminster. A
full extract of the relevant pages is attached. Subsequently, in evidence to the Canadian
House of Commons Special Committee on the British North America Act on 26 March
1935, Professor Kennedy said, with specific reference to the British North America
Acts:

” The third point. I am not concerned to discuss at the present time the method
by which the BNA Act can now be changed. I subscribe to what Dr Skelton says
in his evidence at page 38; but I would like to say this—I do not think there is the
slightest necessity in law for the parliament of Canada to consult the provinces in
the process. It may be good politics, but politics is not law.”

Ten copies of the Canadian Report are being supplied to the Secretary of the Committee.
1

28 November 1980

1 42/80-81/FM (not yet reported) to be produced as an Appendix to the Minutes of Evidence.

[Page 137]

ANNEX A

January 20, 1966.

The Right Honourable

Lester B. Pearson, P.C.

Prime Minister of Canada

Parliament Buildings

Ottawa

My dear Prime Minister,

As is fitting upon the eve of a new session of the Legislature, the Quebec cabinet
recently reviewed the principal items likely to be considered thereat. Among them are the
draft bills entitled ” Quebec Parliament Act ” and ” An act to provide for the amendment
in Canada of the Constitution of Canada “.

At the last regular session, the Legislative Assembly voted an address to Her Majesty,
praying her to cause to be laid before the Parliament of the United Kingdom the bill
entitled: ” Quebec Parliament Act ” . This is linked up with the proposed constitutional
amendment bill since the latter would have the effect of ensuring definitively to the only
provincial upper House still in existence an absolute right of veto over any amendment
of its own powers. Since the British parliament has not yet been seized of the request
of the Legislative Assembly, the latter has not been called upon to consider the proposed
formula for amending our constitution.

Many events have occurred since this formula was elaborated, and it would not be
proper to ignore them. Among them should be mentioned the country-wide debate
which has taken place respecting the formula itself, the continued dialogue between
Quebec and the rest of the country, a constant and sustained evolution towards a new
relationship between Quebec, the other provinces and the Government of Canada, the
progress of the studies and discussions undertaken by the Tax Structure Committee, the
Royal Commission of Inquiry on Bilingualism and Biculturalism and our own Special
Committee on the Constitution.

You are also aware that the proposed formula for amending our constitution has
caused some anxiety in Quebec. Whatever the cause of this feeling, it is a factor which
should not be ignored. For instance, I personally am struck by the fact that, as early as
last spring, the formula was not being interpreted everywhere in the same way. Thus I
had always assumed that, as regards the amendment of legislative powers, any diminution
of provincial power required unanimity, whereas any increase of such power called for
the concurrence of only two-thirds of the provinces representing one-half of the population.
This view, however, is not shared by everyone, even the specialists. It is contended,
in fact, that under the formula any province could prevent the extension of the powers of
another province. Needless to say, if that interpretation was to prevail, the evolution of
our constitutional system in the direction desired by Quebec might become very difficult.

The visit which I recently had occasion to make to Western Canada also made me aware
of the considerable difference between the manner in which Quebec wishes to see our
constitutional system develop and the views held on this subject by many Canadians in
other provinces. This difference of opinion, moreover, was confirmed to some extent
by statements made after that visit by authorized representatives of other provinces.
My feeling is that after this interval for everyone to ponder our country’s future, we shall
be in a better position to know what to aim for. It will also be most useful, in that

[Page 138]

regard, to reflect upon the work of the Tax Structure Committee and the forthcoming
report of the Royal Commission on Bilingualism and Biculturalism. By then, I imagine,
each of the governments in the country will have had an opportunity to define its policy,
not only in the field of federal-provincial relations, but also respecting the relations
between French-speaking Canadians and English-speaking Canadians.

In the circumstances, the government of Quebec has decided to postpone indefinitely
the consideration of the proposal for constitutional amendment.

Trusting that you will consider this decision as an indication of our sincere solicitude
for the present and future progress of Canada, I remain, my dear Prime Minister,

Yours sincerely,

Jean Lesage.

Ottawa, January 24, 1966

The Honourable Jean Lesage,

Prime Minister of Quebec,

Parliament Building,

Quebec, Que.

I haveseenonlytoday your letter of January 20 concerningthe Constitutional Amendment
Formula. Stop. It raises a number of important and far-reaching problems of concern
to the federal government and affects the situation relating to the action sought in London.
Stop. My reply to your letter will have to be tabled immediately, yours is made public.
Stop. In the circumstances you might think it best to defer making the contents of your
letter public until you have had a chance to consider my reply which I shall try to send you
immediately after consultation with my colleagues on Thursday. Stop. Best regards,

Lester B. Pearson.

Ottawa, January 26, 1966

The Honourable Jean Lesage,

Prime Minister of Quebec,

Parliament Building,

Quebec, Que.

My dear Prime Minister:

As I pointed out in the telegram which I then immediately sent you, I saw only the
afternoon of January 24 your letter of January 20, 1966, concerning the constitutional
amendment formula. The irony of it is that I had indicated that very morning, in reply
to questions by the Leader of the Opposition and other members in the House of Commons,
that the federal government had every intention to submit the constitutional amendment
formula to Parliament as soon as it had been concurred in by all the provincial legislatures.
I had thus implied that I remained of the opinion that Quebec would in due course
endorse the proposed procedure to amend in Canada the Constitution of Canada.

My view was based on a number of positive factors which I could not but interpret in a
positive and encouraging way, even though I was as you know fully aware of the difficulties.

First among those factors, of course, was the fact that the constitutional amendment
formula was agreed unanimously by the heads of the federal and of the ten provincial
governments at the Federal-Provincial Conference on October 14, 1964. We all then
undertook to submit the proposed amendment procedure to our respective governments for
formal approval following whatever procedure each thought appropriate. Secondly the
White Paper which the federal government published on the subject in March 1965 had
been endorsed without qualification by the ten provincial governments. Indeed, the

[Page 139]

Quebec authorities actively participated in the preparation of the French texts of both
the amendment formula and the White Paper, and accepted them officially. The White
Paper contained a detailed explanation of the various clauses of the amendment formula
which was not questioned at the time.

Thirdly the Speech from the Throne, at the opening of the last session of your legislature,
stated that: ” So that the repatriation of the Constitution shall not have the effect of
entrenching the powers of the Legislative Council over bills passed by the Legislative
Assembly, you will be asked to restrict those powers “. As a result, the Legislative
Assembly eventually approved an Address to Her Majesty, praying Her to cause to be laid
before the Parliament of the United Kingdom the bill entitled: ” Quebec Parliament Act”.
For its part, the federal government has made a clear distinction, in deciding on the
procedure that it should follow in advising the Governor General, between the Address
approved by the Legislative Assembly of Quebec which relates only to the Constitution
of Quebec, and the Address concerning the constitutional amendment procedure which
relates to the Constitution of Canada. Your government, however, as confirmed in your
letter of January 20, 1966, has maintained a direct link between the two proposals.
Therefore I have to ask myself whether, as a matter of policy, the Legislative Assembly
and the Government of Quebec would still wish the ” Quebec Parliament Act ” to be
introduced in the United Kingdom Parliament.

Fourthly all the provinces, except Quebec, have formally notified the federal government
of their formal concurrence in the proposed amendment formula. Undoubtedly in seeking
the approval of their respective legislatures and in giving formal approval to the formula
they shared my confidence that the Government of Quebec would take a similar step.

Finally, the federal government has all along been conscious of the potential relationship
which exists between the amendment procedure and eventual revision of the Constitution
itself. The studies mentioned in your letter as likely to have important implications
for the constitutional development of Canada, were initiated before or concurrently
with the approval of the amendment formula. The Royal Commission on Bilingualism
and Biculturalism was established in July 1963; the Special Committee on the Constitution
of the Legislative Assembly of Quebec was created in June 1963: and the terms of reference
of the Tax Structure Committee were agreed on October 14,1964, immediately before the
Federal-Provincial Conference also unanimously approved the constitutional amendment
formula itself. Those are not therefore entirely new developments. Frankly, I had
assumed that since the constitutional amendment formula represented, from the point
of view of both the federal government and the provincial governments, such a marked
improvement over the existing procedure in enabling us at last to amend our Constitution
in Canada without having to go to the Parliament of another country, that the eleven
governments would be prepared to accept it. But I certainly never excluded the possibility
that, as part of an eventual revision of the Constitution, the amendment procedure itself
might then have to be modified to respond more effectively to any new federal-provincial
relationship that might by then seem wiser or sounder for the achievement of constitutional
change in the future.

In conclusion, I am bound to express my great disappointment with the decision of
your government to postpone indefinitely the consideration of the proposal for constitutional
amendment. I venture to hope that the Government of Quebec might be prepared
to reconsider its decision in the light of the hopeful circumstances to which I have referred
and of the many developments in the last three years in the field of Federal-Provincial
relations. At the same time, I fully accept, of course, the expression of your ” sincere
solicitude for the present and future progress of Canada ” contained in the closing
paragraph of your letter of January 20, 1966. It is as a step in that progress and as an
instrument for its continuance that the Government of Canada had hoped to see the
amendment formula approved.

It is clear that, if your government does not consider that it can alter its position, we
shall have to discuss the whole matter again at a future meeting of the Federal-Provincial
Conference. Meanwhile, the position of my government remains as stated in that part of
the Speech from the Throne opening the current session of Parliament, which reads:
” It remains the objective of the federal government to provide that the Constitution of
Canada may be amended in Canada “.

Yours sincerely,

L. B. Pearson

[Page 140]

ANNEX B

Question No. 1,719—Mr Bell (Carleton):

1. On what date did the government of Canada receive a copy of an address of the
Legislative Assembly of Quebec relating to the Legislative Council of that province?

2. From whom was it received and what was the nature of the request for action in
respect thereto ?

3. What actions were taken by the government of Canada in respect thereto, specifying
date and nature of each such action ?

4. Upon what dates and with whom in the United Kingdom or Canada have there been
communications in respect thereto, excluding from answer reference to communications
from non-governmental bodies or persons?

5. What was the nature of each such communication ?

6. Is any further action in respect to this address now contemplated by the government
of Canada and, if so, under what circumstances and of what nature?

Right Hon. L. B. Pearson (Prime Minister):

1. 31 May 1965.

2. Two addresses were received from the Lieutenant-Governor of Quebec. The first,
addressed to the Governor General, requested that the second be transmitted by him to the
Queen.

3. 4, and 5. These questions relate to advice by ministers to the Crown. Such advice
has always been regarded as confidential and details concerning it cannot be made public.
The government did, however, communicate the addresses of the Legislative Assembly
to the Crown with indication that, in its view, the advice of the Executive Council of
Quebec in relation to a matter affecting solely the constitution of Quebec should be
followed.

6. Consistent with the position indicated above, any further action will depend on the
views of the ministers now in office in Quebec. This situation has been explained to the
United Kingdom government.

[Page 141]

ANNEX C

(c) Safeguarding the British North America Acts.

The Statute of Westminster provides:

Nothing in this Act shall be deemed to apply to the repeal, amendment or alteration
of the British North America Acts, eighteen hundred and sixty seven to nineteen
hundred and thirty, or any order, rule or regulation made thereunder.25

To explain that section would be to write a whole chapter of history. It exactly represents
the agreement made between the Dominion and the Provinces in April 1931, and
the exact approval thereof by the Parliament of Canada. It would be a waste of time to
argue the basis of Canadian federation. No one seriously believes that there was in it
anything which could legally be called either a treaty or a contract—dogmas of Canadians,
and dicta of the Privy Council notwithstanding. The simple facts, however, are that
no political party in Canada dare urge constituent powers for the Parliament of Canada,
and that, if the present inability of Canada to change its constitution is to disappear,
it can only do so with provincial agreement. Indeed, the very Dominion-Provincial
Conference of 1931 in relation to the Statute of Westminster negatives on the one hand
the claim that in this matter the Provinces have no status, while on the other hand it
establishes unanimous consent as necessary. Constitutional practice nullifies history and
confirms dogma and dicta. The result is, of course, a great limitation on autonomy;
but it is a limitation imposed within and by Canada. On the other hand, it is well to
recall that there is no evidence forthcoming that, at the Dominion-Provincial Conference
of 1931, the Government of Canada requested provincial consent to the matter of the
Dominion of Canada coming within the ambit of the Statute of Westminster, or that the
Provinces did assent to such application to Canada as distinct from the Provinces.

You asked us on 8 December for further information/documentation in connection
with the Committee’s enquiry on the Canadian Constitutional Problem. . .

Question 1

Can the FCO confirm-that Provincial emissaries have not been received without
credentials from Ottawa (follow-up to Question 24-25) ?

No record has been found in FCO files of any British official refusing to see provincial
emissaries on constitutional matters for lack of Federal credentials. But the arrangement
has been that requests from provincial agents general concerning an appointment with
senior Whitehall officials should in the first place be sent through the Canadian High
Commission in London. It has also been customary for a representative of the Canadian
High Commission to accompany provincial visitors on calls that have been so arranged?

Foreign and Commonwealth Office

11 December 1980