March 19, 1954

PC

James MacKerras Macdonnell

Progressive Conservative

Mr. Macdonnell:

When the committee rose last night I had made a few remarks with regard to this clause and I had drawn the attention of the committee to the fact that here again we are up against the problem to which we have grown so accustomed, namely, handing over power in large instalments to the executive. I wondered last night whether perhaps I am getting a little bit hipped on this. I am quite sure many people in the committee think I am, but I must confess that, for some reason I am not quite able to explain, it did hit me last night in a much more emphatic way than it has for some time; and I might have come today in a repentant mood, Mr. Chairman, I might have come and almost apologized for what I said last night, if it had not been that in the interval there came into my hands a book on parliament called "The Passing of Parliament", written by a man who would appear to be a responsible authority and whose words might command some attention. He is Professor G. W. Keeton, professor of English law at University College, London. As I read what he had to say about the passing of parliament, and particularly the words that I am going to ask the committee to listen to-those who are interested in this-

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LIB

William Alfred Robinson (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Liberal

The Chairman:

Order.

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PC

James MacKerras Macdonnell

Progressive Conservative

Mr. Macdonnell:

-I came across these words, and as I say they struck me, and I wish to put them before the committee. You may ask, Mr. Chairman, what I think is going to happen from this, and I would not be so sanguine as to say that it is going to have very much result; but we in the opposition have to go ahead hammering on what we consider to be important, perhaps hoping that we may attract the attention of the public. Sometimes, after perhaps a year of what seems complete frustration, we do attract interest outside this house, and it is in the hope that I may do that that I read these words. I recall to the committee, Mr. Chairman, that they seem to come from a respectable and thoughtful source. I recall they are

IS, 1954 3151

Export and Import Permits Act written about the mother of parliaments, which Tennyson, I suppose, had in mind when he said about his native land:

A land of settled government,

A land of just and old renown,

Where freedom slowly broadens down From precedent to precedent.

I am going to read from a man who is apparently afraid that freedom is not broadening down at the moment; that it is actually in danger, and it is because of that I am asking you to listen to these words. I read from "The Passing of Parliament" at page 199:

The problem which faces all peoples which are still attached to the democratic way of life is to find some means of curbing the power of the executive, and preventing it from usurping the entire functions of government.

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LIB

William Alfred Robinson (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Liberal

The Chairman:

Order. I have been listening for some minutes and wondering whether the hon. gentleman heard me when I said we were discussing clause 5 of this bill.

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PC

James MacKerras Macdonnell

Progressive Conservative

Mr. Macdonnell:

You are the chairman, sir, but I suggest that clause 5 introduces the principle that we have so often had here as to how much power is to be handed over to the executive. If I am right in that, then I suggest that comments from worth-while authorities as to the relationship between the executive and us who are in the legislature is relevant. I defer to your ruling, Mr. Chairman.

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LIB

William Alfred Robinson (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Liberal

The Chairman:

Order. I should think it would be relevant to discuss the clause which reads in part:

The governor in council may establish a list of goods-

I should think relevancy would be, for instance, in discussing the list or the advisability of establishing the list.

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PC

James MacKerras Macdonnell

Progressive Conservative

Mr. Macdonnell:

Mr. Chairman, I submit, and I am going to suggest, that no reason has been given us for the first two subclauses of this bill, and that the reasons given seven years ago are irrelevant.

I again submit it is relevant to raise the question as to the need for the powers. This clause is really asking extraordinary powers. I hope to be able to convince the committee, or I shall try to convince the committee, that these powers are not necessary. I believe the situation has greatly changed since 1947, and we are happy that it should be so. I believe we shall find that not very much action has had to be taken under these powers in the last year or two. I come back, Mr. Chairman, and suggest that I believe it is relevant to consider the whole question of

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Export and Import Permits Act handing over to the legislative branch of government the power to act by order in council.

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LIB

William Alfred Robinson (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Liberal

The Chairman:

No; I am sorry, but I do

not think I should allow the hon. gentleman to open up a broad subject of that kind. The discussion in committee must be relevant to the clause, and I would ask the hon. gentleman to confine himself to a discussion of the clause under consideration.

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PC

James MacKerras Macdonnell

Progressive Conservative

Mr. Macdonnell:

I will defer to your

ruling, of course, Mr. Chairman. I now want to read clause 5 and I shall then read what the parliamentary assistant gave to us in explanation of it. Clause 5 reads as follows:

The governor in council may establish a list oi goods, to be called an import control list, including therein any article the import of which he deems it necessary to control for any of the following purposes, namely,

(a) to ensure, in accordance with the needs of Canada, the best possible supply and distribution of an article that is scarce in world markets or is subject to governmental controls in the countries of origin or to allocation by intergovernmental arrangement;

(b) to implement any action taken under the Agricultural Prices Support Act, the Fisheries Prices Support Act, the Agricultural Products Co-operative Marketing Act or the Agricultural Products Board Act, to support the price of the article or that has the effect of supporting the price of the article; or

(c) to implement an intergovernmental arrangement or commitment.

I now wish to draw to the attention of the committee the remarks made at page 3067 of Hansard by the parliamentary assistant, as follows:

The provisions of this bill, Mr. Speaker, with regard to the control of imports, differ from those in the existing act only in that the purposes for which import control may be exercised, as set out in section 5, include specific authority "to implement an intergovernmental arrangement or commitment." This change is being made to define more clearly the power that is required from time to time to carry out arrangements with other countries, particularly with the United States. It is preferable on occasion that we control our imports at the request of the United States, rather than leave it to the United States to impose export controls on shipments to Canada.

With reference to paragraph (c) of the measure, to which I shall return in a moment, I would just like to point out the extraordinary, unlimited range in this paragraph. The parliamentary assistant did not make any comment on paragraphs (a) and (b). I quite understand that, because they are not new paragraphs, and he probably feels that the reasoning which was used at the time the measure was passed would still be valid.

I would earnestly suggest, Mr. Chairman, that the situation has changed vastly since then. I now wish to read what was said by the then minister of trade and commerce, and I hope the parliamentary assistant will

agree that the reasons given there are largely if not utterly inapplicable now. I wish to read from page 568 of Hansard for 1947, volume I:

The provisions in respect of import control are equally necessary, though there may not be quite as general an understanding of the reasons therefor. In some instances the major supplying countries of a given commodity have taken control of its distribution and stipulate that an importing country, in order to receive an allocation, must agree to import no more than a stated quantity. Such a situation may arise from an international allocation of goods in short supply, such as the present international authority dealing with edible oils and fats. Alternatively, it may arise from one or more countries deciding to market a commodity by making allocations to the various importing countries. Where such an allocation is made it is necessary for us to ensure that the limited quota available to Canada is not acquired by a few of the bigger users, at the expense of smaller consumers. It should be noted that the supplying country, in many of these instances, establishes a fixed quantity for Canada, but it is no concern of theirs as to how fairly the share allotted to Canada is distributed among the Canadian interests that require supplies. That is something that Canada must look after herself.

I believe the parliamentary assistant will agree that much of what is said there is quite inapplicable in regard to the present situation. Indeed, I believe he will agree it is entirely inapplicable. For, whatever reasons have been used to place articles on the list within the last few years, it has not been these reasons. I hope the parliamentary assistant will be able to explain that.

As far as I can see we have no explanation for the continuation of paragraphs (a) and Ob). Indeed, it would seem from an examination of the export and import control board reports that they have no relationship whatever, particularly to paragraph (a).

I would like to read the new paragraph (c) and to ask the committee to consider very carefully the wording. If you had allowed me to read that passage I intended to read, Mr. Chairman, which is full of interest, then what I am now going to read would have been of much greater interest to the committee. However, I am sure you would not allow me to take up the time of the committee now on that point. The wording of paragraph (c) is as follows:

to implement an intergovernmental arrangement or commitment.

That is broad enough, but it does not say how that commitment is to be made, nor does it define in that paragraph what an intergovernmental commitment is, though I notice that the definition section says the minister means "the Minister of Trade and Commerce" and:

includes any person authorized by him to perform his functions under this act;

In other words, as far as I can see, an intergovernmental arrangement or commitment can even be made by telephone. T do

not see any reason why it could not. I do not know whether it could be made by the proper official. But again I do not see any reason why it could not, particularly when you consider the power that is being sought under this act. It appears to mean that the proper officials can take actions which really mean, in effect, that in respect of the action taken the tariff arrived at by a process of careful debate in this house ceases to matter, because what is the use of having a tariff if you say this or that article may not be imported at all?

That, Mr. Chairman, seems to me an extraordinary power for the government to seek. As I said before, it nullifies the tariff laws. It is really an unlimited power, as far as I can see. The paragraph "an intergovernmental arrangement or commitment" does not even say that it is limited to the effect of this clause. Lawyers might construe it that way, but the words are wide open. The parliamentary assistant himself, whom I would now like to quote, does nothing in any way to limit it. He says, as reported on page 3067 of Hansard of March 16, 1954:

. . . the power that is required from time to time to carry out arrangements with other countries, particularly with the United States.

I do not wish to labour the point, Mr. Chairman, but I feel the powers asked for here are unprecedented. I do not like to use the word "unprecedented" because someone may drag up a precedent which is very strong. However many precedents there may be, I do feel the clause confers extraordinary powers. It is quite unlimited and unless the parliamentary assistant can suggest how it is limited we are, in effect, being asked to hand over this power to the executive, which means that four men sitting together can exercise this power and bind the people of Canada.

I have read what was said in introducing this measure years ago. I have argued that by no stretch of the imagination have we a situation which corresponds with that, or comes anywhere near approaching it. The report of the import and export control board for 1952 states that one of the things which was done by the order in council at the request of the United States authorities was adding non-ferrous metal scrap in order to control imports from the United States.

I would ask the parliamentary assistant to tell me by what stretch of the imagination that came in under the act as it was before. I am not able to think of anything which confers the power to do that, as the act was constructed before. I am ready to be corrected, but I assume

19, 1954

Export and Import Permits Act the feeling that the government did not have the power is the reason for putting this clause in the bill now.

As I said before, Mr. Chairman, we have got used to this kind of legislation. We know the Minister of Trade and Commerce does not need legislation. He simply says, "Who would stop us?" We know he said in this house not long ago as reported on page 4197 of Hansard, April 21, 1953:

If we have overstepped our powers, I make no apology for having done so.

I must admit, however, that other ministers are more considerate. They do come here and they do allow us to pass legislation. They, at least, allow us to be present at our own funeral and they allow us to be the instrument of our own degradation. If we pass this legislation we hand over this power to a government which is supported enthusiastically on the other side of the house and by some of my hon. friends on my right.

Again, Mr. Chairman, I stress the unlimited power in paragraph (c). There is no suggestion of any limitation. With regard particularly to paragraph (a), no reason whatever has been given for passing it. I suggest to the parliamentary assistant that the reason used by his predecessor in 1947 is no justification whatsoever, and in particular I would ask him to give us some account of how this section is being used at the present time, or whether in fact it has practically petered out. I would also like to know if, in fact, the reasons for which it was originally instituted have disappeared, and whether it is now being used, as I suggest, for purposes completely different from those originally put before us. I believe that is a fair statement, but I am open to correction.

As I read these reports of the committee, I ask myself where they spell out in the act the things it has done. If that is so, I suggest that this section should not be passed. I hope that the parliamentary assistant will be able to answer some of these questions.

Before I take my seat I just want to say that if in fact it turns out on this account that this section has almost passed into disuse, I hope that we shall not be asked to pass it just because it is nice to have lots of power lying around. This gentleman in England whom I was not allowed to quote has pointed out at page 200 that you could have not only departmental regulations but even departmental circulars acquiring the force of law. I suggest that we should not slip any further in that direction and that this section as it stands at present should not be passed.

Export and Import Permits Act

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CCF

Hazen Robert Argue

Co-operative Commonwealth Federation (C.C.F.)

Mr. Argue:

Before the parliamentary assistant replies to the hon. member for Greenwood I should like to comment on the statement that has just been made. If the hon. member for Greenwood and the members of the Conservative party are so strongly opposed to clause 5, it seems to me that the thing for them to do, in order to be consistent, is to call for a vote and to record their opposition to clause 5. If such a vote were called I think I would be prepared to support clause 5, because when I asked the parliamentary assistant last evening whether subclause (a) or subclause (b) was now being used, he replied that (b) was being used in the case of import control of butter. If this section were being used only for such a purpose, I think it would be of sufficient value to be retained. Of the stability measures the government has used in recent years one of the few that have really worked has been this program in relation to stabilizing butter prices. If this section should be taken out, I ask the parliamentary assistant whether that means that the government would then have no power to control the importation of butter into Canada. If that should be the situation-

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PC

James MacKerras Macdonnell

Progressive Conservative

Mr. Macdonnell:

May I ask the hon.

member a question?

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CCF

Hazen Robert Argue

Co-operative Commonwealth Federation (C.C.F.)

Mr. Argue:

Yes.

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PC

James MacKerras Macdonnell

Progressive Conservative

Mr. Macdonnell:

Would the hon. member not agree that it is better to have butter kept out by direct, open law than by indirect use of a statute which was probably never intended for that purpose?

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CCF

Hazen Robert Argue

Co-operative Commonwealth Federation (C.C.F.)

Mr. Argue:

I am not too sure whether I know what indirect law is as opposed to direct law; but in any event, if this clause is passed, I think it will be law. As it reads, it says that the government has power under this act to set up an import control list to carry out the purposes of the Agricultural Prices Support Act. I am not a lawyer but, speaking as a producer, if this type of law achieves a useful purpose, namely to stabilize prices for the dairy industry with regard to butter, it would seem to me that we should be extremely careful in tampering with it and that we should not oppose it. If, without this section, there should be no law that would control the importation of butter into Canada, it would mean chaos to the dairy industry. Production goes up in spring and early summer; and with a surplus of butter, the price would go down at an alarming rate. Following that event, with the drop in production of butter in the wintertime, the price of butter would go up probably by a similar amount and we would have the old cyclical fluctuations in butter prices that I think have

been of value neither to the producer nor to the consumer. My question to the parliamentary assistant therefore is this. Is this section necessary in order to carry out the government's program to stabilize butter prices?

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LIB

John Horace Dickey (Parliamentary Assistant to the Minister of Defence Production)

Liberal

Mr. Dickey:

Perhaps I might first of all answer the direct question asked by the hon. member for Greenwood in connection with non-ferrous scrap. He asked under what power in the Export and Import Permits Act import permits were issued in that connection. The power is in section 4 (a) of the Export and Import Permits Act which contains the words "or governmental controls in the countries of origin". Import permits in connection with non-ferrous scrap were required because of government control in the United States which made it necessary for a Canadian importer to have a permit from Canada to import the scrap in order to effect his purchase in the United States and to get his export approved from that country.

The hon. member for Greenwood has raised a question of importance and one that the committee properly should consider carefully, namely the justification for the passage of this section which gives certain powers to be exercised by the governor in council. In particular, that power under this section will be to establish a list of goods which shall be called an import control list. The hon. member for Greenwood suggested that the arguments for the justification of similar powers which were contained in the Export and Import Permits Act-and which will be replaced by the bill now before the house if and when it receives parliamentary assent-do not now apply. He quoted some of those arguments in favour of the granting of the powers at that time and has suggested that they do not apply. As a matter of fact I think he defied me to say that conditions had not changed and that these arguments still justified the inclusion of similar powers in the present act.

I would say to the hon. gentleman-and I hope he will agree with me-that the very reasons he has quoted justify the existence of some power of this kind which can be used when required. For example, in his quotations he referred to situations of shortage of a particular import in the country of origin. Mr. Chairman, when a situation of shortage exists in the country of origin, we have found that the practice of that country usually is to make certain restrictions on the export of that commodity and to require certain assurances from any importing country that the particular material is going to be used for a proper and, in some instances, for an essential purpose. The

usual means employed by importing countries to give that assurance is the issuance by themselves of an import permit to the national of their country who wishes to purchase in the foreign country and to import.

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PC

James MacKerras Macdonnell

Progressive Conservative

Mr. Macdonnell:

I appreciate that. Will the parliamentary assistant permit a question?

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LIB

John Horace Dickey (Parliamentary Assistant to the Minister of Defence Production)

Liberal

Mr. Dickey:

Yes.

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PC

James MacKerras Macdonnell

Progressive Conservative

Mr. Macdonnell:

Is it true to say that the situation which has just been described is much less than it was a year or two ago, that in fact there is practically none of that at the present moment?

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LIB

John Horace Dickey (Parliamentary Assistant to the Minister of Defence Production)

Liberal

Mr. Dickey:

Yes, Mr. Chairman. As I said in the committee last night in answer to a question, there is no item which is under import control now under this subsection. The example I gave, and one that is relevant to the particular discussion we are having now, is sulphur and brimstone which was under import control for the very reasons we have been discussing. The situation of shortage has disappeared at the present time, but it might reappear for reasons quite beyond the control of the government of Canada or anybody in Canada. A similar situation might arise with respect to any one of a number of rather essential imports this country requires, and the Department of Trade and Commerce and the government have come to the conclusion that that is one reason why the existence of a power of this kind is still justified at the present time.

The hon. member referred to the very wide powers, to the existence of the power to create monopolies and to exercise discrimination. I think we will have to admit that in dealing with matters of this kind it is impossible to exclude completely possibilities of that kind. The hon. member referred to the four men in the back room, I think he said, as being able to exercise these powers and suggested that that brought thoughts to mind of the possibility of quite serious difficulties arising. In judging that, I think parliament is justified in looking at how the power has been exercised. I think that is a fair test. I think the hon. member will agree with that. He may argue with some justification that past performance is not a complete guarantee of what will happen in the future, but in coming to a reasonable and logical conclusion on a matter of this kind I do think that parliament and this committee are justified in looking at what the experience has been.

What has been the experience? As has already been pointed out by the hon. member for Assiniboia, the only item now subject to the exercise of these wide and sweeping

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Export and Import Permits Act powers is butter which is under import control by reason of the authority established under section 4 (b) of the Export and Import Permits Act now in force and which I believe is exactly similar in its terms to clause 5 (b) of the bill. It is a control that has been put into force under legislation specifically intended to effect the results that it is thought necessary to achieve, and was not, as I understood the hon. member for Greenwood to imply in his interjection or question, done under some act which was intended for another purpose. I do not think that is correct. It was done under a power that was intended for the specific purpose and to achieve the specific end that is in fact achieved.

The list of items that have from time to time been under import control during the whole existence of the Export and Import Permits Act is as follows: Iron and steel, shearlings-that is, sheepskins-sulphur and brimstone, to which we have already referred, butter, to which reference has already been made, livestock, meat and meat products, and non-ferrous metal scrap, to which reference has also already been made. I think the committee will realize, from a brief description of the circumstances under which these various items came under import control, the basic justification for the existence of powers of this kind which can be exercised when required.

Examples of import control under section 5 (a), which was referred to by the hon. member for Greenwood, are items which are included under international allocation by the international materials conference. An example of them is sulphur and brimstone. In order to carry out our obligations to limit the import of sulphur into this country, and in order to carry out our obligations to direct sulphur into essential industries within Canada, this item was put under import control on May 30, 1951. Immediately sulphur became in easier supply the control was lifted, on October 28, 1953.

Butter and meat products are examples of control under section 5 (b). Butter continues under control as the price is being supported under the Agricultural Prices Support Act. In his remarks a few moments ago the hon. member for Assiniboia indicated the essential nature of a control of that kind in order to make price support effective. Meat and meat products were placed under control on March 3, 1952, during the epidemic of foot-and-mouth disease inasmuch as we were supporting the prices of these products at that time under the Agricultural Prices Support Act as one of the essential means of dealing

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Export and Import Permits Act with the very difficult situation that had arisen as a result of the outbreak of foot-and-mouth disease. This control was lifted on February 26, 1953, immediately the foreign markets we had previously enjoyed were again open to our products as a result of the elimination of the danger of contamination or infection of livestock in the United States by foot-and-mouth disease.

Examples of control under section 5 (c) would be-and I say "would be" as that particular section has not been enacted into law before-iron and steel, shearlings and non-ferrous metal scrap. These items were put under control under the present act during a period of world shortage when our principal supplier, the United States, was allocating supplies through the use of their export control mechanism. In order to avoid the imposition of export controls on United States goods moving into Canada, we undertook to control this movement through our own regulations. These items were removed from import control on January 7, 1953, April 4, 1952, and March 19, 1953, respectively. I might point out to the committee that Canada is, I think, the one nation that has not been subject to export controls from the United States. I believe that has been a very important factor in the maintenance of a high level of trade between Canada and the United States. I feel that few things contributed to that as importantly as the power that we had to impose controls ourselves rather than have them impose export controls upon us; that was a very important contributing factor indeed.

The final point made by the hon. member for Greenwood was to ask me whether or not the need for this power has disappeared, and to what extent that meant this power was being retained and re-enacted simply because it is nice to have powers. I can tell him that that is not correct. The limited use of those powers is not properly the test of the need of the powers, but it is a test of the manner in which the powers have been used. It indicates, I think, the restraint and the care that have been brought to the exercise of these powers. It is our firm belief, Mr. Chairman, that these powers should exist.

I feel that the point the hon. member made is more an indication of the reason the committee should re-enact these powers that are necessary with some confidence that the same kind of restraint and care will be taken in their exercise in the future.

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?

Mr, Macdonnell:

I am grateful for the

explanation given by the parliamentary assistant. I am glad to know, in particular,

the restricted application he gives to paragraph (c). I understand him to have said that he regards paragraph (b) as necessary for the control of the import of butter. If that is the case, then I agree with him that paragraph is needed. I propose to move an amendment which I hope may be accepted. It is not of a controversial nature. We could vote on that, and when that is over, in view of what the minister has said about his belief that paragraph (b) is needed for the control of butter, we shall vote for it. This is my amendment, Mr. Chairman, and you will see it is designed to make sure that parliament is as fully informed as possible of the action taken.

The amendment reads:

That clause 5 of Bill No. 374 be amended by adding to both subclauses (a) and (c) at the end thereof the following words: "which shall be tabled in parliament within fifteen days of it being entered into if parliament is then in session or within fifteen days of the next following session of parliament if parliament is not then in session."

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March 19, 1954