No, no.

Sit down.

Mr. GUTHRIE:

I say that has been no breach of the Independence of Parliament Act which I am discussing. I say that the test of the matter is: Do we or do we not accept any office of salary, or emolument under the crown? If we do our seats become vacant. If we do not we have a perfect right to hold our seats. That is the test. Do we or do we not receive salary or emolument? Now the word "acting" minister has been inserted in the order in council for the express purpose of demonstrating or providing that we are not ministers with portfolio therefore we do not receive emolument or salary for our services. That form of order in council for the appointment of acting ministers has been in force and adopted by the Privy Council in 'Canada for twenty-five to thirty-five years and members of the late government, members of the government in which my hon. friend from Quebec East sat, passed many orders in council in this identical language relating to ministers without portfolio and acting ministers in the former government without any further reservation or provision.

Mr. DUNNING:

Members of this House?

Mr. GUTHRIE:

Members of this House, and they did not infringe the law because they received no salary, no wage, or no remuneration. That is the test. If we do receive any such then I admit we are contravening section 10 of the Independence of Parliament Act. If we do not, and as acting ministers we cannot and do not, there is no infringement of any of the provisions of the Independence of Parliament Act.

Now while I am on the subject may I state that the procedure in this instance in regard to the appointments recently made of acting ministers has been in accorda'nce with the established custom in the Privy Council in this country for at least thirty-five years. There has been no variation; in the present instance there has been an adoption of the old forms and the old precedents. There is no specific law on this subject. There is no statute law to regulate these matters; they are largely matters of custom and of form which have grown up in the office of the Privy Council. Some of these customs are not founded in statutory enactment, some of them were originally founded merely in convenience.

Now it was charged last night by the exPrime Minister that one serious objection to myself and my hon. friends appearing in this

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Supply-Formation of Ministry

House as acting ministers of the government was, that no oath had been administered to us. Why should an oath be administered to us, may I ask him? What statute requires it! What law has been contravened if no oath was administered to us? Where is the law, where is the statute, where is the regulation? We have none in this Dominion of Canada. All that is required by law of a minister of the crown in this country is that he be sworn of the Privy Council. That is the first condition. The second condition is that he be a member of this House or of the upper chamber: and the third is that he be called upon to act by that person who, for the time being, is the Prime Minister of the country.

Mr. MACKENZIE KING:

Will my hon. friend say that any member of the Privy Council can act without taking an oath?

Mr. GUTHRIE :

I am coming to that now. Just allow me to proceed and I will try and answer all my hon. friend's statements. In England the procedure is somewhat different to that adopted in Canada. The appointment of a minister in England is much more formal than it is in this country. In England in the first instance a man is sworn of the Privy Council. Then he goes through a special formality, the very dignified and quaint formality, of kissing the hand of his sovereign. Then the seals of office, of his department, are formally handed to him and on the acceptance of those seals he becomes a minister. But in addition to that, after all that has been gone through-not before, after-he is required to take an oath in conformity with a law passed in 1868, an imperial statute, the Promissory Oaths Act, which applies to certain ministers of the crown, mentioning them by name. That is, after he has accepted the seal, after he has become a minister, he is required to take an oath for the faithful performance of his office. We have no statutory requirement of that kind in this country. I admit that a custom has grown up in the Privy Council office in this country that when a man is called to the Privy Council, when he has been selected as a minister in the cabinet, with a portfolio he shall take an oath for the faithful administration of his office. This applies only to men who enter the cabinet as ministers with portfolio, but in no case in the last thirty-five years-because that is as far back as the search has gone-has the oath been required of a minister who is appointed without portfolio, or a minister who is specifically appointed as an acting minister.

Mr. MACKENZIE KING:

As an acting minister is he assuming any powers or any trust that the minister usually exercises?

Mr. GUTHRIE:

Any powers the prime minister directs him to assume, or any powers he is called upon to exercise under the prime minister; I say he is.

Mr. MACKENZIE KING:

But the hon.

member and others are acting ministers of certain departments. Are they as such ministers exercising any powers or any trusts relative to a department, such as the obligations the minister would have in a department?

Mr. GUTHRIE:

I think to some extent we are. .

Mr. MACKENZIE KING:

Then my point is that before any powers or trusts can be exercised in a legal way an oath must be taken that they will be so exercised.

Mr. GUTHRIE:

No, I submit there is no such requirement by our law; no enactment, no regulation, no order in council; and no oath is required. But as a matter of custom an oath prescribed to ministers upon their accepting portfolios, but in no case, so far as we have been able to find, has any oath been required of a minister appointed without, portfolio, or appointed merely as an acting minister. This Mr. Speaker, is nothing new. The procedure in the case of the present appointees without portfolio is identical with the procedure pursued by the government of my right hon. friend who now. leads the opposition. A memorandum has been obtained from the clerk of the Privy Council upon the subject. He is an official of the government,, admirably fitted for the high office which he holds, an official of very great experience, for many years the private secretary of the late Sir Wilfrid Laurier, and a close student of all that went on in and about the Privy Council and upon all formal matters pertaining to the Privy Council. He has a full knowledge of details, a knowledge of methods and of customs pertaining in the office of the Privy Council which enabled him to fulfil his duties as private secretary to Sir Wilfrid Laurier while Prime Minister of Canada. He has himself occupied the office cf clerk of the Privy Council for two or three years, I think. He is a very capable official, well informed in regard to the duties of his office, and he was requested to make a search and give information in regard to what is actually the custom and what is actually the practice in such matters, and I am going to give the House the result of that search now.

Supply-Formation of Ministry

He has directed a letter dated to-day, July 1, to the Right Hon. Arthur Meighen, P. C., Prime Minister, Ottawa, which reads:

Dear Mr. Meighen,

Replying to your inquiry on the subject of oaths taken by ministers and acting ministers, I beg to inform you that upon a m-ember of the Privy Council being called to take a portfolio and preside over a certain department, he is required in all cases to take the oath of office.

Hear, hear.

Mr. GUTHRIE:

That is what I stated.

The wording of this oath, a copy of which is attached, is not prescribed by any statute, in so far as I have been able to discover, but would seem rather to be dependent upon custom and usage.

Regarding the appointment of acting ministers, this is generally done by order in council, but it has not been customary for an acting minister to subscribe to any oath and no acting minister in the past twenty-five years has been asked to do so.

Ministers without portfolio have in several instances been called upon to temporarily preside over departments as acting ministers, but in no case, in at least the period of time mentioned above, was an oath administered to them.

Such was the opinion which I gave you two days ago, after consultation with Mr. Kezar, the assistant clerk of the Privy Council, who has #n experience of over thirty-five years in this office.

During the last administration three ministers without portfolio were at different times appointed as acting ministers, namely, the Hon. Mr. E. M. Macdonald, Acting Minister of National Defence, appointed 28th April 1923.

He was not sworn.

The Hon. R. Dandurand, appointed acting Minister of Justice, 27th August, 1923; no oath was administered. The Hon. H. B. McGiverin, appointed Acting Secretary of State, 26th November, 1924. No oath was administered save that of a privy councillor. Mr. Macdonald was appointed Minister of National Defence on the 17th, August, 1923.

That was about four months after his appointment as a minister without portfolio.

And was sworn in as such on the 18th of the same month, but was never sworn in as acting minister; nor was either Senator Dandurand or Mr. McGiverin. In the case of Mr. Macdonald, he was appointed as Acting Minister of National Defence when that position was vacant, the former minister, the Hon. George P. Graham having resigned as such and appointed Minister of Railways and Canals.

I may also inform you that there have been other cases in the past of ministers without portfolio being appointed as acting ministers after the resignation of the regular minister, or the post was otherwise vacant.

Your very sincerely,

E. J. Lemaire,

Clerk of the Privy Council.

Mr. MACKENZIE KING:

May I ask

my hon. friend if he has ascertained, or if his leader has ascertained-he says the oath is a matter of custom and that it is not always 14011-332i

taken-if since confederation there is any case where a minister has not taken the oath.

Mr. GUTHRIE:

There is no case where

an acting minister or minister without portfolio has been required to take it.

Mr. MACKENZIE KING:

Is there any

case where a minister has not taken the oath?

Mr. GUTHRIE:

No, I know of no case,

and I think I am safe in assuming this that in every case where a minister is appointed with portfolio the custom to be complied with requires that he should take an oath. I agree that that has been the custom, and that custom should be complied with now in the case of ministers being appointed with portfolios.

Mr. GARLAND (Bow River):

In the case of the then Acting Minister of National Defence, Mr. Macdonald, to whom he refers, for instance, and who, he claims, was appointed acting 'minister without having taken the oath, was he appointed by order in council, and if so was the order in council passed by a properly sworn quorum of the council?