George Alexander Drew (Leader of the Official Opposition)
I am quoting it perfectly accurately.
Subtopic: AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
I am quoting it perfectly accurately.
No, you are not.
Mr. Howe (Pori Arlhur):
Half a sentence.
As a matter of fact, the additional words only strengthen my case.
Then read them.
Hon. gentlemen opposite are very fond of using halves of sentences.
The hon. minister who has just spoken is in the habit of speaking from his seat. He is obviously more comfortable sitting than standing. Mr. Speaker, I shall
Defence Production Act read what was said, because it strengthens the argument that was made:
I quite agree that all the powers set out in the act should not be continuing powers; but I do maintain that if they were necessary in 1951, they are just as necessary today.
Do you forget that this act is in force today and it will be in force tomorrow and it will be in force up to July 31, 1956?
Mr. Howe (Pori Arlhur):
And 1958 and 1959.
Mr. Speaker, the minister does not understand the meaning of statute, nor apparently the meaning of his own words. The law is there. What he is asking us to do is not to exercise the powers that were put on the books until July 31, 1956. He is asking us to continue indefinitely into the future powers which he said on March 11 should not be continuing powers. That is his statement. No, Mr. Speaker, the Minister of Defence Production cannot even remember the effect of what he says. Yet he asks you to support him in the continuation indefinitely of powers which he said should not be indefinite.
Now, this act, of course, is an act that is part of a general trend which all hon. members should recognize. The hon. members opposite should not take so much to heart the contention that it is a time for us to reverse our course. The hon. member for Halifax (Mr. Dickey) did some fantastic special pleading the other day. He said that what we have before us is the question of whether we are going to have defence production or not. Well, there is not a parliamentary word that describes that statement of the senior member for Halifax. There is not a word that would be permitted by the Speaker within the rules of parliament that would adequately describe in its fantastic nonsense the statement by the hon. member that the issue before us is whether we are going to have defence production. Where in the bill before us is there any suggestion of that kind? Where in those two sections is that to be found? On the contrary, he has on Hansard, as every other hon. member has, the unreserved statement that all of us-every hon. member-want a Department of Defence Production. He has the fact that we supported that, when that was in fact the principle, as we pointed out. That is not the principle now. The only principle before the members is whether or not this parliament is going to submit meekly to the demand of the Minister of Defence Production, "With me it is all or nothing".
He has said that before.
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Defence Production Act Mr. Drew: Yes, I said that before, and obviously the hon. member needs to have it repeated, as some hon. members do, because that is the only argument that has been made. The hon. Minister of Defence Production is demanding his pound of flesh. He has not been happy about the way things have gone. With him it is all or nothing. Well, I should like to think what would have been said by some hon. members of the Liberal party of earlier days if they had been told this-and it is they who are being told, because it is their vote that is going to put this into effect along with the socialist vote, if it goes into effect. They are the ones who should be the most critical, and I should like to think of some great Liberals of other days sitting quietly in their seats and being told, "I don't care what any other hon. member thinks; with me it is all or nothing". That is the actual effect of this measure, and that is exactly what the minister has said. He wants the whole hog or nothing. I hope the hon. members opposite will realize that the principle involved is the writing into our permanent laws in perpetuity of an act that by-passes parliament, and in a substantial measure by-passes even the supervision of government itself. This problem of delegated powers is not one unique here, and the hon. members opposite should not be sensitive about discussion of this subject, because this is a subject which applies to all parties and in all countries where there is parliamentary democracy.
Under the demands of war, starting with the first world war, it became necessary under the immense pressures created to adopt measures which were not consistent with our parliamentary traditions. However, every hon. member who did recall the great traditions of parliament made it clear that we should drop those powers and powers of that kind just as soon as an orderly way of life-no matter what the pressures might be-made it possible to return to true parliamentary democracy.
The same thing has happened in Britain. The same thing has happened in Australia, in New Zealand and elsewhere. The subject has been discussed. In Britain a strong committee was set up to examine this question of delegated powers. This government does not like setting up committees that really have the power to act. It prefers a committee where the guillotine can be employed at the appropriate time. Unfortunately, the real effectiveness of committees has not been recognized. At Westminster operations are carried on with some regard for the committee system and a committee was appointed to examine into this question of delegated [Mr. Diefenbaker.j
powers and the authority of ministers under those delegated powers. I should like to read some words of Lord Justice Scott, who was the chairman of that important committee:
When a government bill is brought before parliament in a form which, even in regard to merely executive or administrative matters, gives a wide or unlimited discretion to a minister, and objection is made, the answer is sometimes given that the minister may be trusted by the house to use his powers with a wise and reasonable discretion. The answer may be perfectly bona fide: but temvora mutanturt and another minister or another government may use the unlimited powers indiscreetly or oppressively.
It is obvious that in the United Kingdom, as here, no matter what the law is, there are those who are prepared to say, "We trust the minister". Lord Justice Scott was pointing out that it is not enough to trust any minister but that our parliamentary system demands that we examine what any minister at any time can do under measures passed by parliament and that when there is delegated authority we should be particularly careful to remember the ancient legal doctrine delegata potestas non potest delegari. The ancient legal maxim that a person to whom powers have been delegated cannot delegate them to others rests upon the clear idea that if someone delegates power to a particular individual, then it should not be permitted for that individual to delegate them to some other person, a person wholly unknown to the person who has delegated the original powers.
This act flies right in the face of the ancient legal maxim. It delegates power and it permits the minister to delegate power and it writes into the law in perpetuity the delegation of those powers. The very fact that we now, in June of 1955, are called upon to make permanent an act which will not come to an end until July 31, 1956, is the best possible evidence that this government intends to make these powers permanent.
I want to point out another significant statement because this subject is one that should be of concern to every hon. member. This tendency has been a general tendency. When can we better discuss it, when can we better reverse the trend, than when we see it carried to this extreme point in this way? In a comparatively recent book entitled "Government by Decree" written by M. A. Sieghart we find these words, which have a direct application to what is under discussion:
The democratic method of law-making by a representative assembly is being superseded in many fields by the autocratic method of government legislation. Though this legislation is delegated and controlled by parliament, it can no longer be described as subordinate as it is usually equipped with the force of law. Owing to the
-wide discretionary powers conferred by the instruments of authority, it also enjoys to a great extent immunity from judicial control.
The government is thus being instituted as a second legislature and the ordinance changed into a law Whatever are the reasons for these changes it would be futile to minimize the dangers which result from the present lack of constitutional balance. These dangers are real dangers, despite the fact that they are so far not of an actual, but of a potential danger only.
Those words might have been written to apply directly to the problem now before us, but the very fact that those words were written in relation to the general problem of delegated authority indicates that members opposite need not be sensitive when we discuss this subject, when we argue that the time has come for all members to recognize what they are doing, and that this legislation provides the best possible opportunity that may ever be afforded to us to reverse this dangerous trend. As was said in the words I have quoted:
Defence Production Act which is important and I am going to read it. It is found in section 2, subsection (f), paragraph (iii):
(f) "defence supplies" means
(iii) articles, materials, substances and things of all kinds used for the production or supply of anything mentioned in subparagraph (i) or (ii) or for the construction of defence projects;
Now, Mr. Speaker, that means one thing only, that at any point where the words "defence supplies" are used in relation to the words "articles, materials or substances", those are things of all kinds which can be used in defence production. It is not just the guns or tanks or vehicles; it is the raw material that goes into them. Under this provision any mine in Canada can be taken over. Under this provision any forest property can be taken over. Under this act any operation of any kind producing things that are needed to go into defence production can be taken over. In other words, food products that go into the rations of the armed forces can be taken over.
The dangers are real, despite the fact that they are so far not of an actual, but of a potential danger only.
We believe that these real dangers threaten the system of which we have every reason to be proud, that of parliamentary responsibility and the rule of law.
What is the act that we are called upon to make permanent, Mr. Speaker? Let us remember that the act before us wipes out the limitation of time and makes the Defence Production Act permanent. Therefore let us see what we are asked to make permanent. We are asked to make permanent powers which have never before been conferred upon any individual since the famous Henry VIII clause so many years ago. That clause generally known to constitutional lawyers as the Henry VIII clause was the act of proclamation which made it possible for King Henry VIII actually to make orders which had the effect of legislation. We have now advanced into a more democratic period and instead of an act of proclamation giving powers to the king, we are asked to give them to an individual- not to the government but to an individual- the Minister of Defence Production (Mr. Howe), in most cases even without the supervision of his own colleagues. I am not going to go into detail about what is provided in the interpretation section but it would be well for some of the hon. members to read some of the definitions. Just to indicate how wide are the powers that are specifically given, we find that "defence supplies" means anything that can be used for defence. Here is a definition
Then, let me go down to another word definition, "investigator". We do not need to go to distant lands to find out how investigations can be carried out by people not responsible to parliament. This act gives the minister power to appoint an investigator without the members of the government even knowing who are the investigators. Are they trained investigators? Are they civil servants answerable to an oath of office and with their duties defined by law? Under section 2, subsection (k) we find this:
"investigator" means a person appointed by the minister to conduct an inquiry under section 29.
Anyone he names may be an investigator. Then, there is a very interesting definition which I do urge hon. members to read carefully. It is this:
"essential service" means the carrying on of any commercial activity including the generation or distribution of electrical energy, designated by the governor in council under section 30 as an essential service:
Well, in that case the government would know that; that is one of the few cases where the minister even has to go to the government.
Let us look at some of the sections and what they provide. Section 5 provides that the minister may do certain things on his own, without an order in council. Section 7 (2) provides the minister may do certain things without an order in council, and subsection 3 gives very wide powers to the minister. It permits the minister to remove any members, directors or officers of a corporation incorporated under this section at any time, and may appoint others in their stead or may appoint additional persons or
Defence Production Act
members. This applies to directors or officers of corporations set up under this act who engage in any activities that might be described as defence activities. What a power that is in a democratic country! What a power for influence the minister could exercise if he just called up and said, "Mr. Brown, I do not like what you are doing. Please look up section 7, subsection 3 of the Defence Production Act, and I do not need to do more than tell you that I should like you to carry out certain instructions you will receive." These are powers which a vigilant parliament should examine and examine carefully.
Then, section 9 is one in regard to the administration of the department and under which the minister can exercise certain administrative powers. That, of course, is strictly an administrative section.
Then, section 11 is a very interesting section. Section 11 begins as follows:
The minister shall examine into,-
Not under an order in council______
-organize, mobilize, and conserve, the resources of Canada contributory to, and the sources of ' de.J;e"?e applies and the agencies and facilities available for the supply of the same and for the construction of defence projects and shall explore, estimate and provide for the fulfilment of the needs, present and prospective, of the government and the community in respect thereto Ben May I ask members opposite, in all earnestness, to read that section and to realize that this does not say that the minister may, it says the minister shall. 1 do not know whether or not he has carried out his duties, but under this he is called upon to do all the things that the royal commission on Canada's economy is being asked to do. Why set up the commission? If the government is going to make this section permanent, then the minister is bound to inquire into all these problems. He is bound to conserve our resources. Why not do away with the Minister of Mines and Technical Surveys (Mr. Prudham) ? All those things come under this section, which is going to be made a permanent provision, and the act does not merely say "may". Since fish is such a delectable item of food, he may even do away with the Minister of Fisheries under this provision, although of course his services would be too valuable to be dispensed with, I have no doubt.
May I ask members opposite, in all earnestness, to read that section and to realize that this does not say that the minister may, it says the minister shall. 1 do not know whether or not he has carried out his duties, but under this he is called upon to do all the things that the royal commission on Canada's economy is being asked to do. Why set up the commission? If the government is going to make this section permanent, then the minister is bound to inquire into all these problems. He is bound to conserve our resources. Why not do away with the Minister of Mines and Technical Surveys (Mr. Prudham) ? All those things come under this section, which is going to be made a permanent provision, and the act does not merely say "may". Since fish is such a delectable item of food, he may even do away with the Minister of Fisheries under this provision, although of course his services would be too valuable to be dispensed with, I have no doubt.
Mr. Howe (Port Arthur):
This is not very amusing.
This is the act that has been described by the Winnipeg Free Press as silly and of course they are not my words. They say the minister is silly to try to have this act-
Mr. Howe (Port Arthur):
The hon. member's speech has been described by the press as an amusing speech, but it is rapidly losing its power to amuse.
I did not start out with the idea of amusing the minister. I have no intention of amusing him, but if I can at least attract his attention I have achieved something that had not appeared possible on earlier occasions.
Now, let us see what powers are conferred by section 13. This section reads:
Where a government department has, under or pursuant to any act, power to obtain, for any purpose, information as to matters with respect to which the minister is empowered to require returns to be made, that department shall, if so *required by the minister, exercise that power for the purpose of assisting the minister in obtaining any such information.
Perhaps the Minister of Defence Production could get information from the Minister of National Revenue (Mr. McCann) that we have not succeeded in getting as yet. He would have the power, and in this case the records would be available, to request the information. If the Minister of Defence Production makes a demand upon the minister of another department, he may secure such information. Really, this could be a very useful provision as long as it ended as soon as it had been used.
Then, we have section 15. This is another section in which the minister has the power to do a whole series of things without the knowledge of the government and without any order in council. I ask hon. members to read section 15 carefully and then ask themselves if these powers are powers which have ever been conferred upon any minister, without even the restraint of the supervision which would be afforded by a discussion in cabinet council. The section says that the minister may, on behalf of Her Majesty and subject to the provisions of this act-well, the provisions of this act simply tell him he can do almost anything. He may go ahead and take over almost any material or service. He may-
. -purchase or otherwise acquire, sell, exchange or
lhe fact remains that this act simply sets Otherwise dispose of real or personal property.
up certain duties that do away with the need Oh, what a wonderful power that is! What for a number of the ministers. Why bother an interesting club that could be under
with the Minister of Northern Affairs and certain circumstances. Then he can
National Resources (Mr. Lesage)? _make loans or advances-
Would you not like to know that the minister, at the appropriate time, if he has those powers permanently, and the act is not going to terminate, can set the accounting date? And then, generally, if he has not enough power already, he can turn to paragraph (g) of section 15 and he can-
-do all such things as appear to the minister to be incidental to or necessary or expedient to the matters mentioned in the foregoing provisions of this section or as may be authorized by the governor in council with respect to the procurement, construction or disposal of defence supplies or defence projects.
And may I urge hon. members opposite not to think that this means that the minister must go to the government. He can do all the things that "appear to the minister to be incidental to or necessary". Or, if he finds that not enough, he can then go to the governor in council.
But that is not all he is asking to continue under this act. I turn now to section 17-again, another section where there is no government control but where it is simply at the whim of the minister. That section says:
The minister may, on behalf of His Majesty, enter into contracts for the carrying out of anything he is authorized to do under section 14 or 15 and the following provisions apply with respect to every such contract entered into by the minister on behalf of His Majesty.
And the act specifically provides that under subsection 1 (e) of section 17-
A contract may be entered into by the minister without the approval of the governor in council if
(i) in the opinion of the minister, the contract must be entered into immediately in the interests of defence.
Oh, what could stop him! The minister has said, "What is going to stop me?" Well, what could stop him? Whatever he does may be done without going to the governor in council; so that protection, which was illusory, is wiped out. And then:
(ii) the estimated expenditure, loan or guarantee does not exceed twenty-five thousand dollars, or
(iii) competitive tenders have been obtained and the lowest tender, involving an estimated expenditure not exceeding fifty thousand dollars, is accepted.
And of course the government has the chance to do some reading after. It states that the "minister shall make a report to the governor in council in respect of any contract". Well, that is nice of the minister! He drafted the act, and he is really going to report to the governor in council what he does under section 17!
And then, under section 20-here again the government has no supervision. He has not been quite so kind to them in this case, because it says:
The minister may, on behalf of His Majesty, contract with any person that His Majesty will
Defence Production Act relieve that person from any claims, actions or proceedings for the payment of royalties for the use or infringement of any patent.
And so on. The minister has wide powers, without even asking the cabinet if they think it is appropriate. And yet this is the minister who rather boasts about the fact that he does not think too much about legal draftsmen.
Then, section 21
and this is another one under which the minister has very wide powers: -
21. (1) A person who has entered into a defence contract shall keep detailed accounts and records of the cost of carrying out the contract and shall, or demand, produce to any person thereunto authorized by the minister every account, record or document of any description with respect to the contract-
And just listen to this.
-and with respect to his other business that may be required by the person so authorized and shall permit him to examine, audit and take copies of and extracts from the accounts, records or documents.
Someone suggests that they might get photostatic copies. It would not be necessary for us to wait as we are waiting now for the answers to some of the questions on the order paper. The minister would just say, "Tom, go down and visit-" a certain company whose name has been heard of-"and just find out if there is anything they are doing that we are interested in; and then also just get a few photostatic copies of some records there that I am not very satisfied about, myself, because I have not been able to find out."
And then turning to subsection 3 of section 21-and again, this is something the minister can do without any reference to his colleagues-
Where a person is a party to two or more defence contracts the minister may-
And this is known as an expediting provision.
- (a) by one order reduce the total amount that he is entitled to retain or receive under any two or more or all of the contracts to such amount as the minister may fix as the fair and reasonable cost of performing the contracts together with a fair and reasonable profit thereon;
And do not let us be told that this is a necessary order to protect the public purse. We want every protection for the public purse, and we want a great deal more protection than this minister has ever afforded the taxpayers of Canada. But we do not want powers of this kind in the hands of any minister, even with the authority of the government, by order in council-and most certainly we do not want it without any supervision of any kind.
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Defence Production Act
And then we look at section 23 and we find that the minister-not the governor in council-may do a number of things. This is one of them:
-the minister may direct that person to produce, deliver or store, or to construct, as the case may be, on such terms and conditions and within such period as the minister considers to be lair and reasonable in the circumstances, the defence supplies or the defence project or projects that would have been the subject-matter of the contract if it had been entered into.
And then section 24:
The minister may, where he deems it necessary for any of the purposes of this act, by notice in writing to a person who owns or has in his possession, custody or control defence supplies, requisition the supplies on behalf of His Majesty.
And then we go on to section 27, under which the minister may-
-authorize another person (in this act called a "controller") to carry on, until the minister otherwise directs, the whole or any part of the business of that person.
Then we find that under section 29 the minister may-
-whenever he deems it expedient, cause an inquiry to be made into and concerning any matter relating to or incidental to or arising out of a defence contract or any group or series of defence contracts or any dealings in or with defence supplies, and may appoint a person or persons by whom the inquiry shall be conducted.
Along with this we have the Inquiries Act, under which the government can act, and under which it ordinarily sets out the terms of reference. But oh no, that is a thing of the past!
Section 29(2) says that an investigator- that is, anyone appointed by the minister- -has all the powers conferred on commissioners by sections four and five of the Inquiries Act or which may be conferred on commissioners under subsection one of section eleven thereof.
And then we come to the really interesting part of the act which deals with essential materials and services. This is section 30:
The governor in council may, from time to time,
(a) designate as an essential material any material or substance the control of the supply and use of which is, in his opinion, essential to ensure the availability of adequate defence supplies or for the construction or operation of defence projects; or
(b) designate as an essential service the carrying on of any commercial activity, including the generation and distribution of electrical energy, the control of which is, in his opinion, essential for the adequate production or use of essential materials for defence supplies or defence projects;
to meet the requirements of the defence forces of Canada or for co-operative efforts for defence being carried on by Canada and associated governments.
When we read this section we know that the bill now before us should be called an act to suspend the constitution of Canada.
I hear laughter from the other side, Mr. Speaker. I hear laughter from the other side which is the kind of laughter-
Mr. Howe (Port Arthur):
From your allies down there.
I know the socialists laugh with you because they want this act.
Mr. Howe (Port Arthur):
No, it is not the
socialists who are laughing.