New and Notable Titles

Article 8 / 9 , Vol 42 No. 2 (Summer)

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.