New and Notable Titles

A selection of recent publications relating to parliamentary studies prepared with the assistance of the Library of Parliament (May 2024 – July 2024).

Brock, David M., and J.W.J. Bowden. “Beyond the writ: the expansion of the Caretaker Convention in the twenty-first century.” Saskatchewan Law Review 87 (1): 1-50, 2024.

A series of minority parliaments in Canada between 2004 and 2011 and again from 2019 to 2024 has forced us to confront the most basic questions of how we govern ourselves, how governments are formed, and how power transfers between governments. There is renewed interest in constitutional conventions, the marriage of law and politics that helps govern how public officeholders should behave. The authors examine the Caretaker Convention, a key element of democratic and lawful transitions between governments in Canada under which incumbent first ministers and cabinets limit themselves to making necessary and urgent decisions during an election when the legislative body does not exist and cannot hold them to account.

Burn, Ian. “No absolute immunity for government from lawsuits over unconstitutional legislation: SCC.” Law360 Canada, 6p., July 22, 2024.

A five-judge majority of the Supreme Court has ruled the state is not entitled to an absolute immunity from liability for damages when it enacts unconstitutional legislation that infringes Charter rights, but rather it may be liable for damages if the laws are ‘clearly unconstitutional,’ made in bad faith or were an abuse of power.

Burzo, Stephano, Bert Kramer, Daniel Irwin, and Christopher Kam. “Legislative pensions and re-election seeking: evidence from Canadian legislatures.” Legislative Studies Quarterly 49 (2): 383-

409, May 2024.

The authors use data from Canadian legislatures to examine how legislative pension rules affect the propensity of incumbents to seek re-election. The authors predict that legislators with defined- benefits pensions are more likely to seek re- election than legislators without pensions. Once the legislator is vested (i.e., qualified) in the pension, however, this incentive disappears; indeed, pensions that accrue value quickly and can be collected at an early age, induce legislators to retire rather than seek re-election. Difference-in-differences estimates bear out these predictions: on average, legislators with defined benefits pensions are 11 percentage points more likely to seek re-election than legislators without pensions, whereas legislators who on vesting immediately qualify for a pension of 50 per cent of their salary are 11 percentage points less likely to do so. These results show that legislative pensions alter the value that legislators place on re-election and, in doing so, they affect the accumulation of legislative professionalism and the strength of democratic accountability.

Ferguson, Peter, Amy Nethery, and Zim Nwokora. “Transitional support for former Members of Parliament: benchmarks for ‘professional parliaments’.” Parliamentary Affairs 77 (3): 489-512, July 2024.

Leaving parliament is often a time of significant financial, employment and emotional difficulty for MPs. However, few studies have examined the support provided by parliaments to departing and former members. Consequently, parliaments lack access to best-practice case studies to improve the transitional experience for MPs. This article develops five benchmarks for supporting former MPs, covering transitional financial assistance; retirement income; career, financial, life transitions and redundancy counselling; mental health and medical services; and social and networking opportunities. These benchmarks are used to assess the support provided to former members by 22 selected ‘professional parliaments’. Although most of these parliaments offer adequate retirement income, none currently provide sufficient transitional financial assistance for MPs who depart before pensionable age. In all cases, improvements are also required to mental health and other counselling services. Most parliaments provide adequate social and networking opportunities. Implementing and extending these measures will improve the transitional experience of former MPs and enhance democratic rotation by reducing impediments to high-quality candidates from diverse socioeconomic and cultural backgrounds from seeking political office, while easing the exit of MPs who are ready to leave.

Latimer, Catherine. “Parliamentary liability for Charter infringing laws.” Law360 Canada, 3p., July 31, 2024.

…it may be advisable for the Houses of Parliament to seek independent constitutional experts’ advice when considering legislative reforms.

MacDonnell, Vanessa, and Yan Campagnolo. “Cabinet secrecy: foundations, issues, and reform – An interview with Professor Yan Campagnolo.” Ottawa Law Review 54 (2): 185-96, 2022-2023.

On March 24, 2022, Professor Vanessa MacDonnell spoke with Professor Yan Campagnolo about his new book on Cabinet secrecy, Behind Closed Doors: The Law and Politics of Cabinet Secrecy, at a bilingual event hosted by the uOttawa Public Law Centre. In the following pages, the Ottawa Law Review provides an edited version of their discussion, enhanced with comments and references.

Pilon, Dennis. “Principles or politics? The debate over voting system reform in Canada.” Journal of Parliamentary and Political Law / Revue de droit parlementaire et politique 18 (2): 389-, July/juillet 2024.

Over the past two decades public discussion of voting system reform in Canada has tended to assume that the issue is one defined by principles. In this characterization, the debate involves elaborating rival principles of representation and governance, which are then judged against factual claims about the practical workings and outcomes of different voting systems across western countries over time. In this view, different voting systems represent different values and choosing from amongst them is a matter of deciding which values best fit Canadian circumstances. This approach was recently taken up by the Canadian House of Commons Special Committee on Electoral Reform and evident in their 2016 report Strengthening Democracy in Canada: Principles, Process and Public Engagement for Electoral Reform. As they state in their report ‘there is no perfect electoral system as different systems emphasize different values.’ Thus, to develop its recommendations the committee ‘used the values and principles set out in its mandate… as informed by the perspectives of expert witnesses, open mic presenters, briefs submitted to the Committee, responses to the Committee’s online consultation, and MP town hall reports …’. As the report demonstrates, a host of Canadian and comparative political scientists support and approve of this understanding of the process of voting system reform. However, another line of analysis and commentary argues that questions of voting system reform are decided primarily in terms of political self-interest, even when they appear to be engaged in a principles-based process or deploy a principles-based rhetoric.

Roach, Kent W. “Editorial – Expanding the criminal law again to deal with foreign interference.” Criminal Law Quarterly 72 (3): 221-, July 2024.

Claims by some commentators that some Parliamentarians have engaged in ‘textbook treason’ only reveal an ignorance of treason and the texts interpreting it. The idea that talking or even sharing non-classified information with a representative of a foreign power is treason would make most Canadian diplomats and businesspeople guilty of treason. This is an absurd prospect even under our most generous definition of treason under s. 46(2)(b) of the Criminal Code. Unfortunately, it may not be quite as absurd after Bill C-70 has been rushed through Parliament in our current foreign interference panic and fight for political wedges…

Russell, Meg, and Robert Hazell. “In praise of fixed- term parliaments.” The Constitution Unit Blog 6p., June 7, 2024.

The surprise general election may leave many suddenly nostalgic for the principle of fixed-term parliaments. The original central arguments for fixed terms have been reawakened. In this post, the authors revisit these long-standing arguments, summarise the birth and death of the Fixed-term Parliaments Act 2011, and argue that – on the basis of UK and international experience – we should consider returning Westminster to fixed terms.