Mr. STANLEY KNOWLES (Winnipeg North Centre):
Mr. Speaker, I think we are all agreed as to the necessity of some such amendment to this act as that proposed by this bill, but there are two comments which I want to make.
First of all, I am very sorry that this legislation is the occasion, as indicated by the Prime Minister (Mr. Mackenzie King) on July 12, for the postponement of any dealing with old age pension legislation in this session. We had been given to understand that there would be such legislation, but later on, on the date indicated, the Prime Minister made it clear to us that by virtue of this act the decision had been made not to introduce such legislation this year but rather to bring it down next year. I am sorry that that is the case. I earnestly plead with the government that there be no further delay than the earlier part of the next session in the bringing down of old age pension legislation, and I hope that when it is brought down it will be adequate.
The other matter about which I should like to say a word is this. I feel the government has been exercising authority by order in council for so long and in so many cases that at times it gets a bit slipshod in its use of that power. I must register my protest against an action which was taken a short while ago, which we managed to get hold of by questions in the house. On Saturday, August 17, we were discussing with the Minister of Reconstruction and Supply (Mr. Howe) certain
matters relating to the Aeronautics Act. I asked about the implementation of a certain section of that act, and I was told by the minister in definite language, as recorded on page 5002 of Hansard, that the section of the act had been changed by order in council. I indicated that I had not heard of that particular order in council, but I was assured that it had been tabled. Well, even at that procedure I was annoyed, because it seemed to me that the provision in the act as passed by this parliament in 1944 was very definite, and that the government was exercising pretty wide use of its powers under order in council to change a significant and important section in an act of parliament. But my concern for that procedure led me to try to get hold of a copy of the order in council. That effort was in vain. I was informed in due course in the privy council office that there was no such order in council. Accordingly, I raised the matter in the house on the orders of the day on Tuesday, August 20, as recorded in Hansard at page 5077. I asked on that 'day for the Minister of Reconstruction and Supply to indicate the number and date of the order in council. He replied to me:
My legal department calls my attention to the fact that there was no order in council.
I asked under what authority this matter had been dealt with, and was told by the minister that it was done by a cabinet decision arrived at on February 16 last. Now, Mr. Speaker, I ask the Minister of Justice to follow this pretty closely. I grant that maybe it was a slip and perhaps the government should be pardoned a little bit for an error now and then, in face of the tremendous amount of business it has to do. But when a cabinet, merely by a decision it makes within the four walls of a cabinet meeting, changes an act of parliament without even going to the bother of getting an order in council, it does become serious.
I have done a little studying of this matter in "The Law and Custom of the Constitution", by A. V. Dicey. But for the fact that I do not want to take much time I could read from that book, with which I am sure the Minister of Justice is familiar, the comments on this whole practice of royal proclamations and legislative action by the executive. The thing which interests me is the opposition there has been to orders in council down through the years of British parliamentary history; and when you get to the end, this at least is clear, that there are recognized only two methods of legislation: one, which is frowned upon, orders in council; the other, acts of parliament. There is no provision for legislation by cabinet decision. Yet the Minister of Reconstruction and Supply told me
that this change in an act of parliament was made by a cabinet decision arrived at on February 16 last. If I understand correctly, the minutes of the cabinet meetings are not kept, at least are not made available to the public. My information is that decisions of the cabinet, of the government, have effect and force only when they become orders in council made by the governor general in council on the recommendation of the cabinet or a minister thereof. The Minister of Reconstruction and Supply read from a decision arrived at by the cabinet. This was the decision, according to the minister:
The cabinet, after discussion, agreed that the time limit for separation of control of air services from that of railways be extended for another year, i.e., until two years after the end of the European war.
I am not discussing the issue itself, the actual decision changing one year to two years, but the whole principle of this kind of change being made in this instance not by order in council but by a cabinet decision. I quote further from Hansard at page 5077:
Mr. Knowles: I rise to a question of privilege. The section of the act says that it must be done by the governor in council. There was no order in council, and therefore I suggest that the act has been violated.
Mr. Mackenzie: It does not have to be under
an order in council; the government decides in council.
In other words this was not just a slip on the part of the Minister of Reconstruction and Supply; the Minister of Veterans Affairs (Mr. Mackenzie), the leader of the house at the present time, concurred in the practice. I continue quoting from Hansard'.
Mr. Coldwell: Without the authority of parliament? May I ask the Minister of Reeon-strucion, or the leader of the house, if either of these gentlemen means to imply that the government has authority to do what is not authorized by this house or by statute?
Mr. Mackenzie: The government of the Dominion of Canada is a responsible body, responsible to parliament and responsible by answering questions on the floor of the house, and whether there is an order in council or not the government can take action and answer to parliament accordingly.
Mr. Knowles: That is not the way the act
I should have said, "that ain't the way I hear'd it." It does seem to me that even if this is only a slip, and even if it has been taken care of in some other way since it was brought to the attention of the government as was done on that occasion, I should be remiss in my duty if I did not make this further comment, that the government should be very careful under their powers to legislate by order in council, and certainly that this kind of thing should not happen again. It
leaves me with the question of whether or not it has happened in other instances. It was by pure accident that I found this out, by pressing the minister for the information about that order in council which he told me had been passed; and my interest in it, as I have already said, led me to try to get a copy of the order in council. This was the result. I suggest to the government that they should be very careful in the exercise of powers through the medium of order in council. This kind of thing certainly must not take place; there is no provision for it whatever; and even when they do things by order in council I suggest they should be very careful not to go beyond the intent of parliament in the legislation that is passed by this house.
Subtopic: CONTINUATION OF ACT UNTIL DECEMBER 31, 1946, OR SIXTIETH DAY AFTER OPENING OF 1947 SESSION