CO885-(13-15) — Page 411

8721.

PUBLIC RECORD OFFICE

C.O. 885

Reference :-

:

No. 85.

(CANADA.)

CANADIAN SPEAKER.

Appointment of Deputy.

I have drawn this Bill as instructed.

As regards, however, the expediency of introducing the Bill, I beg to point out some considerations which, from the papers sent me, do not appear to have been presented to the Law Officers.

It will be generally agreed that it is undesirable to disturb a great constitutional Act like the British North America Act, or to create any doubt or difficulty as regards the construction of it, except in the case of very grave necessity.

The passing of the proposed Bill will be held to justify the doubts which the Bill is intended to remove, and the arguments used in support of those doubts, and will therefore extend those doubts and arguments to cases to which at present they would clearly not apply.

The effect, therefore, of passing the proposed Bill will be to throw doubts on the construction of the British North America Act, 1867, if not to restrict its operation, and thus diminish the power and dignity of the Canadian Parliament.

If Imperial legislation is to be asked for whenever doubts are raised as to the constitutionality of Canadian legislation, even when those doubts are held by the English Law Officers to be unfounded, a vista of legislation opens to which there is no end, and which must be prejudicial to the position of Canada.

If the Law Officers' opinion is not sufficient, might it not be possible to obtain an opinion from the Judicial Committee of the Privy Council, which clearly would set the doubts at rest? Such an opinion would not have the same prejudicial effect on the future as the proposed Bill would have.

18th May 1895.

H. JENKYNS.

14 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

House of Lords, S.W.、

I think the question whether the Act is valid is open to argument and cannot be said to be altogether free from doubt. The absence of any provision in the British North America Act relating to the Senate similar to Section 47 which provides for the election of a Deputy Speaker in the House of Commons is not without weight. The argument in favour of the validity of the Act founded on Section 35 does not seem to me impregnable. If it be sound, it would seem to go necessarily to this length, that the Canadian Parliament might enact that any specified number of members without the Speaker should be competent to constitute a meeting of the Senate for the exercise of its powers. But if this be so, what would be the functions left to the Speaker appointed under Section 34 by the Governor General? appointment to the Governor General would be rendered nugatory. I think it may The reservation of the well be contended that the scope of Section 35 was only to enable the Senate to change the number of the quorum and not to enable it to dispense with a Speaker.

I have stated these points not for the purpose of indicating that I should come to the conclusion that the Act was invalid but in order to show that the argument against its validity cannot be dismissed as trivial.

If the Law Officers bad not suggested a validating Act in the Imperial Parliament · and if the Government of Canada were not cognisant of that fact and had not expressed a desire for such legislation I should probably not have recommended it. But, under the circumstances, whilst fully alive to the inconveniences which Sir H. Jenkyns points out, I do not think it would be wise now to abandon the idea of legislation.

If no validating Act were passed, and the Act of the Parliament of Canada should hereafter be declared invalid, the position of the Colonial Office, in view of the circumstances to which I have alluded, would be an awkward one.

HERSCHELL.

May 29th, 1895.

5965,-1). 25.-6,95.

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