New and Notable Titles
A selection of recent publications relating to parliamentary studies prepared with the assistance of the Library of Parliament (April 2019 – May 2019) Bédard-Rubin, Jean-Christophe. “Senate reform and the political safeguards of Canadian federalism in Québec.” Constitutional Forum constitutionnel 28 (1), 2019: 19-27.• …in light of the Trudeau government’s new Senate appointment policy and institutional reform, the meaning and the role of the Senate in Canada’s constitutional architecture might change. The Senate reform could transmute what was a politically moribund institution into a genuine political safeguard of Canadian federalism.
The path is neither straightforward
nor ineluctable, but recent events seem to
suggest that Québec, at least, is willing to step
into that newly-opened door. The aim of this
article is to chronicle this change by focusing on
Québec’s recent attempts to channel its political
grievances through the Senate.
Brown, Jennifer. “Protests around Parliament.”
Briefing Paper 03658 – House of Commons Library,
May 2, 2019: 17p.
• This briefing paper provides an overview of
the current provisions on protests around
Parliament, including a background of previous
legislation, and controversies and legal cases
arising from different provisions over the years.
Campagnolo, Yan. “Cabinet immunity in Canada:
the legal black hole.” McGill Law Journal / Revue de
droit de McGill 63 (2), December/décembre 2017:
315-74.
• Fifteen years ago, in Babcock v. Canada (A.G.),
the Supreme Court of Canada held that section
39 of the Canada Evidence Act, which deprives
judges of the power to inspect and order the
production of Cabinet confidences in litigation,
did not offend the rule of law and the provisions
of the Constitution. The aim of this article is to
revisit this controversial ruling and challenge
the Supreme Courts reasoning … the author
argues that section 39 is an unlawful privative
clause, a form of legal black hole, which
offends the rule of law and the provisions of
the Constitution.
Campagnolo, Yan. “Cabinet secrecy in Canada.”
Journal of Parliamentary and Political Law / Revue
de droit parlementaire et politique 12 (3), February/
février 2019: 583-613.
• The term ‘Cabinet secrecy’ refers to the political
and legal rules that protect the confidentiality
of Cabinet deliberations and documents in
Westminster jurisdictions. This article reflects
the notes of a three-hour introductory course
on Cabinet secrecy taught at the Department of
Justice Canada from 2011 to 2017.
Johnston, Neil, Kelly, Richard. “Recall elections.”
UK House of Commons Library Briefing Paper 5089,
March 19, 2019: 39p.
• Recall is used to describe a process where
the electorate in an area can trigger a special
election to remove an elected representative
before the end of their term. A recall procedure
was introduced in the UK in 2015. It only
applies to Members of Parliament.
Martin, Andrew Flavelle. “The Attorney General’s
forgotten role as legal advisor to the legislature: a
comment on Schmidt v Canada (Attorney General) .”
UBC Law Review 52 (1), January 2019: 201-26.
• …in law – if not in reality – the Attorney General
is a legal advisor to the House of Commons.
This role is not just forgotten, it is inherently
problematic. The problem arises because the
Attorney General is in a joint retainer, providing
legal advice to both the executive and the House
of Commons, but is unable to meet the ethical
requirements of a joint retainer. However, this
problem does not justify, and cannot effect, a
judicial elimination of that role. The decision in
Schmidt presents an opportunity to examine this
forgotten role, in order to resolve its problem or
to recommend its proper elimination.
Martin, Andrew Flavelle. “The Minister’s Office
lawyer: a challenge to the role of Attorney General?”
Journal of Parliamentary and Political Law / Revue
de droit parlementaire et politique 12 (3), February/
février 2019: 641-58.
• As legal counsel in the Prime Minister’s Office
[PMO] of Stephen Harper, Ben Perrin was the
archetype of a new legal role in government:
the Minister’s Office lawyer. The PMO lawyer,
a particularly notable iteration of the Minister’s
Office lawyer, understands himself as a
practicing lawyer representing the government
as client. In doing so, he appears to pose an
inherent and fundamental role challenge to the
lawyers traditionally representing government:
the Attorney General and her delegates, the
government lawyers of the bureaucracy. How
then, might this challenge be resolved?
Moore, Christopher. “A fully realized Senate.”
Literary Review of Canada 27 (2), March 2019: 4-5.
• The upper chamber is finally doing what it’s
supposed to do.
Newson, Nicola. “Parliamentary freedom of
speech and the rule of law debate on 23 May 2019.”
UK House of Lords Library Briefing , 15 May 2019: 10p.
• On 23 May 2019, the House of Lords is due to
debate a motion moved by Lord Brown of Eatonunder
Heywood (Crossbench) that ‘this House
takes note of the potential conflict between the
right of members to speak freely in Parliament
and the obligation under the rule of law to
obey court orders’. Lord Brown is a former
justice of the Supreme Court. The purpose of
this briefing is not to go into detail about any
specific cases that have occurred. Rather, it
explores the underlying principles and sets out
the findings of parliamentary committees that
have previously examined the subject.
Norton, Philip. “Power behind the scenes: the
importance of informal space in legislatures.”
Parliamentary Affairs 72 (2), April 2019: 245-66.
• Studies of legislatures focus on what happens
in formal space, principally the chamber and
committee rooms. Such studies are necessary,
but not sufficient, for explaining behaviour
within legislatures and its consequences.
The use of space for members to interact
informally with one another – informal space
– can contribute to the institutionalisation of
a legislature through facilitating autonomy.
Such space provides an arena for socialisation,
information exchange, lobbying and mobilising
political support. This article examines the
significance of informal space, drawing on the
experience of the UK Parliament.
Taylor of Bolton, Baroness (Chair). “Parliamentary
scrutiny of treaties.” House of Lords Select
Committee on the Constitution – 20th Report of
Session 2017-19, Ordered to be printed 24 April
2019 and published 30 April 2019., HL Paper 345:
52p .
• Treaty-making is a significant responsibility
of the Government…Parliament’s scrutiny
of treaties is based on the Ponsonby rule,
established nearly 100 years ago and
subsequently set out in the Constitutional Reform
and Governance Act 2010. These provisions limit
Parliament’s scrutiny to a 21 sitting day period
after the Government lays a completed, signed
treaty before both Houses. No systematic
scrutiny of treaties currently takes place prior
to signature…To address the shortcomings in
Parliament’s scrutiny of treaties, we recommend
that a new treaty scrutiny select committee be
established…
Thomas, Paul G. “Moving toward a new and
improved Senate.” Institute for Research on Public
Policy IRRP Study No. 69 , March 2019: 40p.
CANADIAN PARLIAMENTARY REVIEW/SUMMER 2019 37
• The Senate of Canada has changed significantly
as a result of the 2014 decision by Justin Trudeau,
then leader of the Liberal party, to remove
Liberal senators from the parliamentary caucus;
and by his introduction, as prime minister, of a
new procedure for the selection of senators…
the author concludes that further changes are
needed to carry forward the present renewal.
These include the establishment of a business
committee to plan and organize the work of the
Senate and the development of a set of criteria,
perhaps enshrined in the Senate’s rules, to
guide it in determining whether to delay,
amend or defeat a government bill.
Walker, Charles (Chair). “The House’s power to
call for papers: procedure and practice.” House of
Commons Procedure Committee – Ninth Report of
Session 2017-19, HC 1904, 15 May 2019: 37p.
• One of the powers of the House of Commons
is a power to ‘call for papers’: that is, to
require Ministers to produce documents and
information to assist the House in discharging
its functions. The right of the House to demand
papers on this basis has never been challenged.
In theory the power is capable of being exercised
without limitation, but the House has, through
practice, established certain limits: the power
is not used to obtain papers which are not in
the Government’s possession or which are of
a personal nature. Although limited at present
by the House’s established practice, the power
could in the future be limited by a resolution of
the House, by statutory provision or by judicial
intervention.
Walfish, Simcha. “Responsible government in the
age of secrecy: Parliamentary privilege and national
security information.” Journal of Parliamentary and
Political Law / Revue de droit parlementaire et politique
12 (3), February/février 2019: 829-62.
• …the National Security and Intelligence Committee
of Parliamentarians Act – is an attempt to resolve
the legal status of secret information by
enabling parliamentarians to access previously
unseen information, while, at the same time,
inscribing into law that residual power to
withhold information. The author argues that
the Act constitutes a major revision to the lex
parliamenti, the law governing Parliament.