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NOTE Opinion Submitted to the Foreign Affairs Committee of the House of Commons of the United Kingdom on the Role of the United

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NOTE Opinion Submitted to the Foreign Affairs Committee of the House of Commons of the United Kingdom on the Role of the United McGILL LAW JOURNAL [Vol. 26 NOTE Opinion submitted to the Foreign Affairs Committee of the House of Commons of the United Kingdom on the Role of the United Kingdom Parliament in Relation to the British North America Acts Shortly after the Government of Canada tabled its proposed constitutional resolution in the House of Commons at Ottawa on 3 October 1980, the Foreign Affairs Committee at Westminster, under the chairmanship of Sir Anthony Kershaw, undertook an inquiry that would culminate in a report to the House of Commons of the United Kingdom on various aspects of constitutional reform in Canada. Sir Anthony's committee sought the advice and opinion of constitutional specialists. The Editors of the McGill Law Journal are pleased to publish an opinion submitted by Stephen Allan Scott, an advocate in the Bar of Quebec and Professor of Law, McGill University. As an opinion it is printed without editorial emendation in quasi-facsimile. This opinion was not received by the Foreign Affairs Committee before its First Report, of 21 January 1981, British North America Acts: The Role of Parliament, H.C. 42, Volume I (Report, with Appendices) and Volume II (Evidence and Appendices). January 14, 1981 John Rose, Esq., Clerk to the Committee, Foreign Affairs Committee, House of Commons, London, England SWIA OAA Dear Mr. Rose, I write in reply to your letter of 13 November inviting me to submit a brief paper on the subject of the Committee's order of reference, to which your letter refers as "the role of the United Kingdom Parliament in relation to the British North America Acts". In order that my discussion be kept reasonably brief and pertinent, it is necessary to make some reference to the general nature of the proposals which raise the question as to the nature of that role. Summary On October 2, 1980, the Government of Canada published a Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada, intended for passage by both houses of the Parlia- 1981] NOTE ment of Canada and transmittal to Westminster for implementation by the Parliament of the United Kingdom. In moments of pessimism - as I have already confessed to the Canadian joint parliamentary committee studying this proposal - the temptation has been to adapt the language of William Butler Yeats to ask "What rough beast, its hour come round at last, slouches towards Westminster to be born?" But I have come to the conclusion that it would be in accordance with both the law and the practice of the constitution for the United Kingdom Parliament to comply with a request in those, or in any comparable terms, should one be made in due course. By a "comparable" request I mean any request that the United Kingdom Parliament enact a statute creating domestic Canadian constitutional amendment processes to supersede the existing authority of the United Kingdom Parliament, and accompanying this transfer of constituent power with other reforms - notably a charter of guarantees of rights and freedoms - even though these reforms may have significant effects upon the legislative or other authority of the Canadian provinces. My opinion, in -summary, is this. (I.) As a matter of strict law, the legislative authority of the Parliament of the United Kingdom to enact the proposed legislation, or any comparable legislation, is absolute and without qualification of any kind. (II.) As a matter of constitutional practice, amounting probably to a convention of the constitution, the United Kingdom Parliament will, regard- less of the subject or nature of -the measure, exercise its remaining legislative authority for Canada on the basis that a request of the Senate and of the House of Commons of Canada is both (1) a necessary, and (2) a sufficient, condition for "Imperial" legislative action. In so doing the United Kingdom Parliament will have no regard to whether there exist in Canada any "domestic" Canadian constitutional practices or conventions, or whether, if there be any, they have been complied with. (III.) There is no settled convention in Canada restricting the cir- cumstances in which the Senate and House of Commons of Canada can properly approach the United Kingdom Parliament with a request to exercise its legislative authority with respect to the whole or any part of Canada. I shall elaborate briefly on each of these matters. In so doing, it will be convenient from time to time to use the term "Imperial Parliament" - a phrase of more than merely colloquial standing (see s. 1- of the Colonial Laws Validity Act, 1865, 28 & 29 Vict., c. 63 (U.K.)). It may be read inter- changeably with the more formal but lengthy style "Parliament of the United Kingdom", or those of its predecessor Parliaments. I. The Law "[T]he King's Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons of Great Britain, in Parliament as- sembled, had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the Crown of Great Britain, in all cases whatsoever." These blunt and succinct terms are those which the british Parliament itself chose, in 1766, to state the law which, in its view, governed McGILL LAW JOURNAL [Vol. 26 its political relations with the colonies within the King's dominions - more particularly, the North American colonies. The statute in which it did so, An Act for the better securing the Dependency of His Majesty's Domin- ions in America upon the Crown and Parliament of Great Britain, 6 Geo. 3, c. 12 (G.B.), known in the American colonies as .the "Declaratory Act" (and much later, by the Short Titles Act, 1896, styled The American Colonies Act, 1766) represented in effect a joinder of issue with what became prevailing opinion in the "thirteen colonies". Indeed it was one of the steps towards the outbreak of the American Revolution. It survived the particular historical circumstances which induced its passage, standing on the British statute book until its repeal by the Statute Law Revision Act, 1964 (1964 c. 79) as one of a number of enactments which were collectively declared (s. 1) to be "obsolete, spent or unnecessary or ... superseded by other enactments". The more modern authoritative statement of Imperial legislative su- premacy is of course that contained in the Colonial Laws Validity Act, 1865 ("in Imperial history clarum et venerabile nomen": per Lord Birkenhead, L.C., speaking for the Privy Council in McCawley v. The King, [1920] A.C. 691 at p. 709). Here the governing principle is stated more elaborately, and also more generally as to its geographical application, than it had been in 1766. The rule of Imperial legislative supremacy is on this occasion implicit in the statutory statement of the converse rule - colonial legislative subordi- nation - found in sections two and three of the Act, which must be read with the defining provisions of section one. But its effect is not on that account any the less absolute. This, then, was the legal position of Canada vis-h-vis the Imperial Parlia- ment, on 11 December 1931, the date of enactment of the Statute of West- minster, 1931, 22 Geo. 5 c. 4 (U.K.). It made two crucial reforms. Section two (read with s. 7(2)) allowed the Canadian Parliament and provincial legislatures to make laws repugnant to Imperial statutes. Section 4 provided that "No Act of Parliament of the United Kingdom passed after the com- mencement of this Act shall extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is expressly declared in that Act that that Dominion has requested, and consented, to the enactment thereof." It may be observed that section 4 of the Statute, read literally, makes extension of Imperial Acts conditional, not upon the fact of "Dominion" request and consent but rather upon mere statutory recital of that fact. Section 4 thus technically depends for its effectiveness on Imperial bona fides. The "sovereignty" which it confers on the "Dominion" accordingly suffers what, in a formal sense at least, is a significant qualification. In practical terms this qualification makes legally irrelevant (and so judicially unreviewable) the sufficiency of "Dominion" request and consent (whether as between central and local institutions, or as between legislative and executive authorities, or otherwise). Much more far-reaching than any qualification found in the text of section 4 of the Statute of Westminster, 1931, is the effect on the Statute of subsection 7(1). Opinions may differ as to the scope of the latter, but on any view it is a provision of profound constitutional significance. Sub- section 7(1) speaks categorically: "Nothing in this Act shall apply to the repeal, amendment or alteration of- the British North America Acts, 1867 to 1930, or any order, rule or regulation made thereunder." 19811 NOTE Subsection 7(1) plainly overrides section 2, - so placing beyond con- troversy the constitutional supremacy in Canada of the British North America Acts, 1867 to 1930. Does subsection 7(1) also override section 4 - so preserving intact to the Imperial Parliament its absolute legislative freedom (as a matter of strict law) to repeal, amend or alter the British North America Acts, 1867 [to 1930]? In my opinion it does. And these considerations lead me to my conclusion. A statute is not a theme upon which courts of law are invited to spin variations, nor a suggestion thrown to them for whatever they may think it worth. It is a peremptory exercise of arbitrary power.
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