CAB129-37 — Page 649

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S DOCUMENT IS THE PROPERTY OF HIS BRITANNIC MAJESTY'S GOVERNMENT)

- Page 650 of 1097–-

ECRET

C.P. (49) 235

1TH NOVEMBER, 1949

CABINET

COPY NO.

T

AMENDMENT OF THE CANADIAN CONSTITUTION

Memorandum by the Secretary of State for Commonwealth Relations

I attach a copy of an Address to The King from the Senate and House of Commons of Canada, praying that legislation may be laid before the United Kingdom Parliament to enable Canada to amend in certain respects the Canadian Constitution without recourse to this Parliament.

2.

The necessity for legislation by the United Kingdom arises in the following manner. The Canadian Constitution is embodied in the British North America Act, 1867, and various subsequent amending Acts. While the Statute of Westminster, 1931, gave Canada (like the other Dominions specified in the Statute) full power to amend United Kingdom Acts applying to Canada, a provision (section 7) was included in the Statute, at the express request of Canada, to the effect that this was not to apply to the British North America Acts. These can therefore only be amended by the United Kingdom Parliament.

3.

It has long been recognised, both in this country and in Canada, that a situation in which Canada has not the power, which all other Commonwealth countries of similar status now possess, of amending her Constitution without recourse to the Parliament of another Commonwealth country, is anomalous and embarrassing to both countries. The difficulty in altering this procedure has been the impossibility of devising a pro- cedure for alteration of the Constitution of Canada itself, having regard to questions arising as to the relations between the Federal Government and Parliament and those of the Canadian Provinces.

4.

The course which the Canadian Government have now proposed is that the Constitution should be capable of amendment by the Canadian Federal Parliament in relation to matters solely within the jurisdiction of that Parliament, and that the question of procedure for amendment of the Constitution in relation to matters of joint Federal and Provincial concern should be discussed at a Conference of representatives of the Dominion and Provincial Governments which is to meet on the 10th January.

5.

The legislation for which the Canadian Parliament now asking would give effect to the first of these objects.

The Canadian Government have expressed the hope that the necessary legislation by the United Kingdom Parliament may be enacted before the end of 1949. The Prime Minister of Canada informed me during my recent visit that, while he could not say was vital that this legislation should be passed before the opening of the Dominion Provincial Conference, it would be very desirable, from the standpoint of effective handling of that Conference, that the United Kingdom Act should have been passed before the Conference meets.

Ca

6. Page 650 of 1097my colleagues to approve Page 6500f 1097, ir possible, before Christmas, of a Bill in the form desired by Canada.

monwealth Relations Office, 8. W. 1.

11TH KOVEMBER, 1949.

P. J. N. -B.