July 6, 1955

LIB

Joseph-Omer Gour

Liberal

Mr. Gour (Russell):

Where is the mover of the amendment?

Defence Production Act

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
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PC

George Alexander Drew (Leader of the Official Opposition)

Progressive Conservative

Mr. Drew:

Mr. Speaker, I heard an incoherent sound which I assumed was a request to be heard-

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LIB

Lester Bowles Pearson (Secretary of State for External Affairs)

Liberal

Mr. Pearson:

Mr. Speaker, the question was a very pertinent one. It was, where is the mover of the amendment which is now before the house?

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
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LIB

J. G. Léopold Langlois (Parliamentary Assistant to the Minister of Transport)

Liberal

Mr. Langlois (Gaspe):

He has gone with the wind.

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PC

George Alexander Drew (Leader of the Official Opposition)

Progressive Conservative

Mr. Drew:

The mover of the amendment before the house will be back presently, and I think the minister is well aware of that. If the minister is in any way concerned about that I simply repeat, where is the Prime Minister (Mr. St. Laurent) in whose name the motion stands? Where is the Minister of Defence Production? Where is the Minister of National Defence (Mr. Campney)? Where are all the other ministers? The only minister present has made the interjection which has been made. Nevertheless, if the minister will look opposite he will find plenty of hon. members of this party who are here to take part in this debate.

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LIB

J. G. Léopold Langlois (Parliamentary Assistant to the Minister of Transport)

Liberal

Mr. Langlois (Gaspe):

Half of the seats on your side are empty.

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Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
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PC

George Alexander Drew (Leader of the Official Opposition)

Progressive Conservative

Mr. Drew:

I was indicating that in a case of this kind, only because it does seem so obvious that certain of the history of delegated legislation has not been recognized, something ought to be put on the record which would show the rise and fall of delegated legislation and the danger of once starting this practice and the need for pulling back from it. This is not something new. It started in about the fourteenth century. A law of 1385 is the first clear example of delegated legislation and that law as a matter of historic interest provided that the staple should be held in England; but in what places, and when it shall begin, and concerning the manner and form of its regulation and government shall be presently ordained by the king's council, with the authority of parliament; and whatever shall have been ordained in this part by the said council shall have the virtue and strength of parliament.

You see, the tendency began in the fourteenth century when the law said that in whatever manner the government ordained, wherever the government ordained and without knowing in advance what happens, then people are bound by the ordinance. But even then, in the fourteenth century, there was a sufficient appreciation of the responsibility of the government that they did not permit the placing of such power in the hands of an individual. The law does bear a surprising resemblance in wording to that now before us, except that it is much shorter.

Defence Production Act

Then the next statutes which are the real foundation for the discussion of delegated legislation are those statutes passed in the reign of Henry VIII. The reference to those invariably arises in any discussion of our constitutional law. One of those, a statute which as a matter of fact would be covered by the present statute, was described as the statute of sewers, passed in 1531. There was delegation to the commissioner of sewers not only of the power to rate all land owners, and distrain and impose penalties for non-payment of rates, but it also gave legislative power- just as this act does-without defining the field within which the powers might be ascertained. It provided further that-

-all statutes, acts and ordinances heretofore made by the commissioner of sewers not being contrary to this present act or heretofore repealed are to be good and effectual forever.

You see, the illusion of permanence indicated in this house existed even in those days of Henry VIII. Here we were told only a few days ago about the expected permanence of this government, and the permanence of legislation. The minister has used the word "permanent"; and those who adopted the statute on sewers in 1531 thought it would be effectual forever. It did not turn out that way because, of course, in due course there was a reversal of the trend.

Then, as always happens, other acts were passed. Once delegated authority goes forward unchecked it increases in momentum. The most famous of these statutes, and the one which still is the outstanding example of delegated authority in early times, is the statute of proclamations of 1539 passed in the reign of Henry VIII. And that, Mr. Speaker, may I remind hon. members, did not go as far as the measure now before us. It enacted that the king, with the advice of a majority of his council, could issue proclamations which should have the force of an act of parliament.

That act for years has been evidence of dictatorship. That act for years has been regarded as Henry's departure from the historic concept of democracy, even in those days. It has always been given as the historic example of what should be avoided under any circumstances in modern times. It has been pointed out as the thoroughly bad example of parliament giving away its legislative powers. But the power to issue proclamations for certain purposes had in any event always inhered in the royal prerogative, and they had in fact already the force of law. So that all that was being done was defining a situation in which the council could do certain things.

These proclamations extended over all sorts of things. Henry and his ministers

found them so convenient that he extended these powers to cover coinage, prices-and of course this act is a price control act-food, drink, cloth; vagabonds and aliens. War and peace were matters which had always previously been considered as not being dealt with by proclamation.

What were the needs for that act? What was the necessity for that proclamation? This is the reason given in the preamble, and I am talking about the act of 1539, not that of 1955. The preamble gives two reasons: first, certain recent proclamations, particularly on religious matters, had been condemned; and second-and how reminiscent this is -

Sudden occasions may arise when some speedy remedy is needed, and there is no time to abide tor a parliament.

That is the act which has been condemned over and over again through the centuries; and the explanation given for it was that "Sudden occasions may arise when some speedy remedy is needed, and there is no time to abide for a parliament." In what way does that differ from the argument put before us today? Yet constitutional lawyers through the centuries have condemned what was known as the Henry VIII act, this particular act of proclamation.

Even at that time the public, which did not have the advantage of literacy we have today, which did not have the advantage of a rapidly distributed press, which did not have the advantage of radio or television-even the public of that day realized that this had gone too far. The result was that the act was repealed in the first year of the reign of Edward VI.

Time went on and another act very shortly after that, known as the statute of Wales, contained a section which gave the king power to make laws for Wales. However, I shall not go into that in detail for the simple reason that it applied to a local area. I might add that it was repealed in 1642. But once again we have to realize that the trend, once started, moves rapidly along unless people who see the danger are prepared at some point to say, "Let us go back and bring such delegated legislation as we need within properly defined channels."

We all know that the Stuarts were less tactful than the Tudors.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
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LIB

David Arnold Croll

Liberal

Mr. Croll:

I believe they paid a price for it.

Topic:   DEFENCE PRODUCTION ACT
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PC

George Alexander Drew (Leader of the Official Opposition)

Progressive Conservative

Mr. Drew:

or six months from now. It would depend upon the political persuasion of the lawyer, though that should not colour his legal judgment; but he would have to say, "It is true that they have not exercised the power, but you might just as well realize that they have complete power and that your business is not secure at all. Your business may be taken over, your personal services may be taken over, if the government decide to do so." Any lawyer who recognized his obligations to his profession would have to advise his client accordingly, and his client then would have to take the chance as to what would be done. Obviously some hon. members will say, "All right, that is the chance we are quite prepared to take." But I repeat that it is the wording of the law, and that we should not be called upon to leave this in a speculative position and gamble with the security of our people under powers of this nature.

There can be measures of control over delegated authority, and we have pointed out how they can be exercised. We have made it clear, and let no one suggest anything else, that we are prepared to support delegated legislation in regard to the exercise of certain powers so long as the powers which the government itself said were excessive are removed and so long as the government places those powers under a proper time limit, only to be renewed from time to time by parliament itself. That is simple; that is what we have proposed over and over again. Make the department permanent. Unhappily within the life of every one of us defence is going to be a continuing responsibility of parliament.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
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LIB

David Arnold Croll

Liberal

Mr. Croll:

Will the Leader of the Opposition permit a question? As I understand the position, the government is asking parliament for powers subject to review and repeal by parliament, and the opposition is agreeable to the granting of powers for a fixed period subject to renewal by parliament. My question is, is not the difference between us one of method rather than principle?

Topic:   DEFENCE PRODUCTION ACT
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PC

George Alexander Drew (Leader of the Official Opposition)

Progressive Conservative

Mr. Drew:

No. The hon. member has completely misstated the situation. The act now before us is not subject to review and repeal, beyond the fact that any act is subject to repeal. This act is not subject to review. There is no provision in this act anywhere that makes it subject to review. There is no time limit on this act if the amendment which has been introduced by the Prime Minister is passed, no time limit whatever.

Therefore there is a fundamental difference between us. What we say is precisely what was said in the early stages when this act was first brought forward. There are powers

that are acceptable and there are powers which the government itself says should not be continued. There is no need to repeat what has been said before. Hon. members opposite have asked, "Why did you not oppose this before?" Hon. members know that the same situation arises here and in Westminster and in other parliaments of our kind.

When the act came forward in 1951 for the setting up of the Department of Defence Production, we had to accept the act in principle. We had no choice, since to vote against that act on second reading in 1951 would have been to vote against the very thing we had been asking for before the government introduced it, a Department of Defence Production. The powers went with it, and we made it clear that we thought those powers were excessive and were wrong. But the government itself placed a time limit of July 31, 1956, on those powers and said those powers would not be continued past that time. The government said, not we, that these should not be continuing powers.

All we have said is, "Deal with those powers that you said must not be continuing powers. Make the Department of Defence Production permanent, plus sensible delegated powers properly spelled out and clearly understood by Canadians, and you will find us supporting such a proposition because we have supported it and have asked for it." When the hon. member for Spadina says that he understands the position of the Leader of the Opposition now to be such and such, may I remind him that that is the position we took in 1951; that is the position in March of this year, and it is the position we have taken since this act came before the house for second reading in the name of the Prime Minister.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
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LIB

David Arnold Croll

Liberal

Mr. Croll:

I did not misstate your position. You agreed that what I said your position was, is your position.

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PC

George Alexander Drew (Leader of the Official Opposition)

Progressive Conservative

Mr. Drew:

No, I do not. I am pointing out that the mistake on the part of the hon. member for Spadina is that he said this act is subject to review. It is not.

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LIB

David Arnold Croll

Liberal

Mr. Croll:

May I interrupt? We have lots of time. I said it was subject to review by reason of the amendment that was offered by the minister and by virtue of the statement that was made by the Prime Minister the day before yesterday.

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PC

George Alexander Drew (Leader of the Official Opposition)

Progressive Conservative

Mr. Drew:

That does not make the act subject to review at all.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
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LIB

David Arnold Croll

Liberal

Mr. Croll:

The orders.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
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PC

George Alexander Drew (Leader of the Official Opposition)

Progressive Conservative

Mr. Drew:

It does not make the act subject to review at all. The Minister of Defence Production extended a rather moth-eaten

Defence Production Act olive branch in the form of a declaration that the orders made under this act would be tabled and that within a certain period of time after those orders were tabled this could be brought before the house. I have too much respect for the judgment and quick thinking of the hon. member for Spadina io believe for one moment that he is under any illusion as to what review that would give.

In the first place it would be a review of an order, not a review of the act. It is only the right to object. We have already seen over and over again when a motion of this nature is made that someone on the other side gets up immediately, as they have the right to do, after the objection has been made and moves the adjournment of the debate. That is the end of it. There is no assurance of anything else. It is the right to one peep and that is all. It is the right for one member to say that he does not like it. Even our friends over here would not have the opportunity to speak, because a member of the government would get up and move the adjournment and the peep would be all over. It would be one little objection, that is all; it would not be a review of the act.

It is no reflection on the word of the Prime Minister-what I am talking about now is parliamentary procedure-when I say that the assurance of the Prime Minister means literally nothing. It means nothing for two reasons. First of all he cannot give an effective assurance and, second, we have the right already. All he is saying is that we will have the right to a peep, just a little sound and nothing else.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
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LIB

David Arnold Croll

Liberal

Mr. Croll:

You mean a squeak, not a peep.

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PC

George Alexander Drew (Leader of the Official Opposition)

Progressive Conservative

Mr. Drew:

Whichever you like. Then the axe falls, or the guillotine as it is commonly called in parliamentary terms. That is not an assurance. The hon. member for Spadina knows that very well, because there have been times when he has seen that right exercised in jurisdictions other than this. On a motion to go into supply there is a much more effective opportunity for discussion of these things.

May I point out that any opposition would be very stupid to avail itself of the assurance of the Prime Minister instead of dealing with the matter by motion on supply, when it has to go through to a vote. So there is nothing offered, even if you accept it as meaning something in itself, which it does not. Any opposition would be sublimely stupid if it availed itself of that right and did not wait for supply, when it can put forward a motion by way of objection in relation to a specified

5770 HOUSE OF COMMONS

Defence Production Act subject which would of necessity have to go through to a vote. That is why I say it means nothing.

Then there is another thing. While the amendment of the minister calls for the tabling of orders it does not call for the tabling of threats, and that is highly important. The minister tells us it is the threat contained in this act that he has found to be so useful. He has paid his tribute to industry, and in that he disagrees with government supporters to your left, Mr. Speaker; but he says he does not know what he would have done in certain cases if it had not been for the threat contained in this act. There is no place on the table in this chamber where threats can be tabled or recorded; that is not the rule of law.

That is the very thing we want to get away from. I know people say nobody is going to be injured unless he has done something wrong. I am not the only hon. member of this house who was in Germany or in Italy in the years between the two wars. I remember people, who were misled and who were not entirely vicious in their approach to the situation, who said of the nazi powers, nobody is going to be affected who does not do something wrong.

While in Italy I remember speaking to an Italian who had been educated at Oxford. I asked him about the 35,000 Italians on the island of Lipari in 1935. I asked him how he could reconcile that situation with the concept of democracy he had learned at that great university. His answer was oh, nobody who has not done something wrong needs to worry about it. It was a tragic commentary on that kind of argument that in time that very man fell under that same authority.

Let no one suggest that we are imputing to any member of this government motives similar to those which prompted the evil things that occurred in Germany or in Italy. But I have heard those arguments before under powers far greater than these in practice but not as great as these in form. Even in Germany, in a country which we sometimes forget had been developing a highly sensitive recognition of the rule of law, it was regarded as necessary to define in some substantial measure the delegated powers conferred upon the government that met in the spring of 1933. In form the legislation there did not go as far as does this legislation.

Having said that, let me never be misquoted. I emphasize, as I emphasized in March and as I have emphasized before, that I impute to no hon. member of this house anything but loyalty to Canada or anything but a desire to do the things that will be

best for this country. However, I argue that a course is being followed-undoubtedly with sincerity but nevertheless a mistaken course -which could bring about in this country at some time dangerous results which not one of us would wish to contemplate.

Simply dealing with the remark that has been made, may I submit that in dealing with legislation it should not satisfy us to say that this government would never do something of that kind. Can I even conceive the possibility that there are some of those on the other side of the chamber who would look across and say, "If the opposition should form the government, we know they would not do those things". But still we get back to the legislation itself and to the dangerous trend it represents.

I submit, Mr. Speaker, that if on this occasion we permit the government to abandon the clear undertaking under which this act was passed, and if on this occasion we permit the rule of law and the supremacy of parliament to be overridden in form, whatever the practice may become, then at this time in 1955 we shall have confirmed a course which will be regarded as a precedent at some future time and for all practical purposes we might just as well send the members of this parliament home.

The Minister of Trade and Commerce has argued he has needed this power to do various things. He has not given us one reason

not a single reason-why these powers should be granted. On the contrary, the very form in which the arguments were presented suggests the strongest possible reason why these powers should not be granted. The Minister of Trade and Commerce has naturally come to like the powers he exercises, and naturally he does not relish the idea of relinquishing those powers quickly. But the fact remains that it is the other hon. members of this house who are called upon to accept the responsibility for what is being done. The Prime Minister has summed up the attitude of the government once again, and once again has placed before us the problem that confronts us. In his speech on July 4, as reported at page 5643 of Hansard, he used these words:

-we are not prepared to put any definite time limit upon it at this time.

There, Mr. Speaker, is the trend we are all seeking to reverse; but it also is a statement that should place all members upon their guard as to what the position is. Even if we were prepared in 1951 to support the principle of the Department of Defence Production and, if you will, take some chances with these powers, we are now confronted with a different situation. We warned then

that once powers are conferred for a five-year period there was a great danger of their becoming permanent. We were assured that was not a danger. Now we see the real danger. We are not merely asked to extend these powers for another five years; we are asked to carry forward these tremendous powers indefinitely.

If this were 1951, Mr. Speaker, we would still point out all these dangers; but this is 1955. This is 1955 when thoughtful people, Sir Winston Churchill, General Eisenhower and others, are speaking about the increased hope for stability and security. In the light of that, let us see what arguments have been put forward by the Minister of Defence Production. The minister started his speech on June 28, as recorded at page 5376 of Hansard, with these words:

Mr. Speaker, in listening to the debate, I feel that I am living in another world . . .

I admit there have been times when the minister has looked as though he would prefer to.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
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LIB

Clarence Decatur Howe (Minister of Defence Production; Minister of Trade and Commerce)

Liberal

Mr. Howe (Port Arthur):

No, I am paid to sit here. I will do it.

Topic:   DEFENCE PRODUCTION ACT
Subtopic:   AMENDMENTS RESPECTING SALARY OF MINISTER AND EXPIRY OF ACT
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July 6, 1955