New and notable titles

Article 11 / 13 , Vol 44 No 4 (Winter)

New and notable titles

A selection of recent publications relating to parliamentary studies prepared with the assistance of the Library of Parliament (September 2020 – November 2020)

Baroness Taylor of Bolton. “A question of confidence? The Constitution Committee’s view on the Fixed-term Parliaments Act 2011.” Constitution Unit blog 5p., September 18, 2020.

Nine years after the passage of the Fixed-term Parliaments Act, both government and opposition have expressed a desire to repeal it, following two general elections: one brought about using the provisions of the Act and another by circumventing them. The Constitution Committee has produced a report setting out what any replacement legislation needs to address.
Bradley, Karen. “Requiring MPs to vote in person during coronavirus places the institution of parliament at risk. It’s time to bring remote divisions back and to plan for continued restrictions.” Constitution Unit blog 7p., September 23, 2020.

Today, the House of Commons will decide whether or not MPs should be allowed to continue to vote by proxy. Karen Bradley, Chair of the Commons Procedure Committee, sets out her views on how voting should take place, calling on MPs to support her amendment, which would require the government to bring alternative proposals for conducting divisions to the House for debate and decision. Those proposals, she argues, ought to include the reinstatement of remote divisions.
Evans, Paul. “Braking the law: is there, and should there be, an executive veto over laws made by parliament?” Constitution Unit blog 8p., October 16, 2020.

During the Brexit crises of 2019, something exceptionally rare happened twice in less than six months: parliament passed legislation without the government’s consent. But are there constitutional veto mechanisms that governments can use to prevent this? In a new Unit report, the author explores this question in detail.
Geddes, Marc. “The webs of belief around ‘evidence’ in legislatures: The case of select committees in the UK House of Commons.” Public Administration Forthcoming: 1-15, 2020.

A wide-ranging literature has explored the relationship between research, knowledge and policy. However, legislatures have often been overlooked in this research. While some studies have looked at ‘who has access’, the literature on how parliaments seek to engage with knowledge claims is particularly scarce. This article addresses this gap through a case study of UK select committees…
Geddes, Marc, “What does ‘evidence’ mean to MPs and officials in the UK House of Commons?” Constitution Unit blog 4p., September 10, 2020.

Select committees are a key mechanism of the House of Commons in its role as scrutineer of legislation and government policy. However, there has been little research on how committees’ members and officials use evidence to support their work. The author has been researching the topic; here he offers a summary of his findings.
Guly, Christopher. “Senator considers seeking Supreme Court clarity on parliamentary privilege, rule of law.” The Lawyer’s Daily 7p., September 4, 2020.

Independent Sen. Mike Duffy’s final hope for clarity on whether parliamentary privilege trumps his quest to seek court-ordered damages against the Senate could rest with the Supreme Court of Canada.
Hartery, Jesse. “Protecting parliamentary sovereignty and accountability in a dualist federation.” Alberta Law Review 58 (1): 187-93, 2020.

Over the last few years, the Supreme Court of the United Kingdom and the Supreme Court of Canada have offered diverging conceptions of parliamentary sovereignty …the Canadian case, Pan-Canadian Securities, involved an attempt by the federal government and the governments of five provinces and one federal territory to implement a national cooperative scheme for the regulation of capital markets. In the 2011 Reference re Securities Act, the Supreme Court of Canada rejected an argument by the federal government that the regulation of the securities market had ‘evolved from a provincial matter to a national matter.’ However, the Supreme Court noted that the federal Parliament could potentially intervene to regulate systemic risks. It also explicitly encouraged both orders of government to consider a ‘cooperative approach’ in exercising their respective legislative powers.
Lim, Preston Jordan, “Reforming Canada’s war prerogative.” Canadian Foreign Policy Journal 26 (3): 345-59, 2020.

In Canada, the power to declare war and deploy the military is sourced in the royal prerogative. In this paper, the author argues that it is time to place the war prerogative on statutory footing…
Martin, Joe. “Thank you, next – The Conservatives’ commitment problem.” Literary Review of Canada 28 (8): 23-5, October 2020.

…it’s time to reject the Mackenzie King and U.S. model in favour of one that’s more along the philosophical lines proposed by Michael Chong in his Reform Act, which he first introduced in late 2013.
Umbers, Lachlan M. “Compulsory voting: a defence.” British Journal of Political Science 50: 1307-324, 2020.

…Average turnout in Canadian federal elections has fallen from 74.5 percent during the period 1940–79, to 62.5 percent since 2000. For most democrats, these numbers are a cause for alarm. Compulsory voting is amongst the most effective means of raising turnout. However, compulsory voting is also controversial…
van Ert, Gib. “POGG and treaties: the role of international agreements in national concern analysis.” Dalhousie Law Journal 43 (2): 1-28, 2020.

Canada’s international treaty obligations have featured prominently in Privy Council and Supreme Court of Canada jurisprudence on Parliament’s power to make laws for the peace, order and good government of Canada (POGG). How treaties ought properly to be used in determining Parliament’s POGG jurisdiction is a constitutionally fraught question. The federal executive cannot be permitted to extend Parliament’s legislative jurisdiction by making promises to foreign states. Yet the existence of treaty obligations is undoubtedly relevant to the question of whether a given subject has become a matter of national concern. In the upcoming Greenhouse Gas Pollution Pricing Act references, the Supreme Court of Canada will confront this problem again. This article seeks to explain how courts may properly use international agreements in POGG cases