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How to use this Citizens’ Guide

To be effective, citizens have to know how their legislature works

 

Latest news: * * On March 10, 2020, the House adjourned after a spring sitting of only 13 days, which is much shorter than usual. The House will resume sometime in the fall of 2020, likely October or November. * * Also on March 10, 2020, there was a pair of by-elections. Dave Ritcey (PC) was elected in Truro–Bible Hill–Millbrook–Salmon River, and Kendra Coombes (NDP) was elected in Cape Breton Centre. Party standings in the House are now Liberal 26, Progressive Conservative 18, New Democratic Party 5, Independent 2. * * On February 23, 2020, Hugh MacKay (Chester–St. Margaret’s) announced he is leaving the Liberal caucus and will sit as an independent. * *

You can browse this Citizens’ Guide from top to bottom simply by scrolling down. If you’re looking for something specific, I recommend using the Search function. If you’re looking for something more general, the Categories list is likely the best starting point. You might find the category “Advice for Citizens” especially useful, because it includes tips on communicating with your MLA, making a presentation to the Law Amendments Committee, and having an impact on the annual budget. The posts on the law-making process and the budget-making process are also good starting points. They will lead you deeper into this Citizens’ Guide via the links. There’s also a post on all the vocabulary, because the legislature uses a lot of jargon, acronyms and slang.

I’m going to keep building this Citizens’ Guide in response to events and your questions. If you send me your questions, I’ll do my best to answer them. Factual questions only, please. I won’t answer questions that are partisan, or that are about specific individuals, or that require speculation or opinion. To keep this Citizens’ Guide manageable, I’ll answer questions only about how the legislature works, and not about politics, elections or government in general.

Every question about the legislature is a good question. If you’ve been wondering something about the legislature, then chances are that lots of other people are wondering the same thing.

I started this Citizens’ Guide in December 2016 because of a startling political event. That event is behind us now, but the need remains for a good explainer.

To be an effective citizen, you have to know how decisions are made. The legislature is part of the decision-making process, yet most Nova Scotians know very little about what really goes on there. Because I’ve been hanging around the legislature since 1998, I have a pretty good sense of how it really works. This Citizens’ Guide is my way of sharing my experience.

Q64. How does the COVID-19 pandemic affect the House?

So far the House is not affected; that may change

The pandemic that is sweeping around the world in 2020 has not yet had any effect on the Nova Scotia legislature. That may change.

The legislature fortunately wrapped up its spring 2020 sitting on March 10th, which is quite a bit earlier than usual. The first COVID-19 cases in Nova Scotia were announced on March 15th, and a provincial state of emergency was declared on March 22nd.

The House will not normally resume sitting until sometime in the fall of 2020, probably late October or early November. (The law requires a meeting no later than December 31.) It is possible that the pandemic will have largely passed by then. If so, the House can meet without worry, and conduct its business normally.

It is not very likely that the House will have to meet before the fall of 2020. A meeting would be required only if the government needed new laws, or a new budget. The provincial government has lots of existing legal authority to deal with the pandemic. Furthermore, the House has already approved the government’s budget for the period April 1, 2020, to March 31, 2021. The pandemic response is likely to lead to many changes in revenue and expenses, but there is enormous flexibility built into budget laws and so it is unlikely the government will need to return to the House for a new budget.

But what if the House does have to meet before the fall? Or what if the House has to meet while the pandemic is still raging?

The Rules of the House are written on the understanding that MLAs will meet and debate in person. The Rules do not specifically state that the meeting has to be at Province House, but there is an assumption that all members will be in the same place, together.

There are three possibilities:

  1. All members can meet at Province House and conduct business as usual. This is not a good option if there is a valid fear that MLAs, staff, reporters, and members of the public will be put at risk by being too close to each other. Province House is small! And the legislative chamber itself is much smaller than it looks on TV — the MLAs are really close to each other, and there’s not nearly enough room to space out the desks. But if the parties cannot agree on an alternative (see points 2 and 3), this is the only option left.
  2. A small number of MLAs, representing all parties, can meet at Province House and conduct business as usual. This would require agreement by all parties represented in the House. According to the Rules, the minimum number of MLAs required to have a valid meeting (known as “quorum”) is fifteen. The parties could agree that this small group would have the same make-up as the the full House (for example, eight Liberals, five Progressive Conservatives, and two New Democrats). This is the option chosen by the House of Commons in Ottawa, where the quorum is twenty. The chamber of the House of Commons, though, is physically much larger than the chamber at Province House. Twenty MPs can sit in the chamber in Ottawa and still be far apart. That’s not possible at Province House.
  3. The members could meet online. The Rules don’t specifically allow online meetings, but they don’t specifically forbid it either. The important thing is that any Rule can be suspended or changed if two-thirds of the members present agree. Given the current standings of the House, that would require the Liberals and Progressive Conservatives to agree on the Rule changes, since each of them has over one-third of the members. If they agree, then really anything is possible.

The real question isn’t whether the House can meet online. I think it can. The question is how to do it, to preserve the right of all members to read what is being debated, to participate in debate, and to vote. Whatever system is chosen must be secure, stable, and readily available to all members. The public, too, including journalists, must be able to listen to the House. The House never meets in private session, and that shouldn’t change. An adequate system will require some flexibility and technical savvy on the part of the Speaker, the members, and House staff.

If all of these conditions are met, then an online House is, in the midst of a pandemic, a good option.

 

Q63. Why doesn’t the House sit during March Break?

The rules have a list of non-sitting days, including March Break

A63. The House doesn’t sit during March Break because that’s what the rules say.

The House is governed by a set of written rules, plus a whole lot of unwritten rules based on what has happened before. In the written rules (link to PDF document) Rule 3(3) lists the days on which the House will not sit:

The House shall not meet on New Year’s Day, Good Friday, Easter Sunday, Easter Monday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day, Boxing Day, a Saturday, a Sunday or a Monday, and the week in each year customarily observed by the schools at the seat of the Legislature as the “March Break” in accordance with a determination made by the Minister of Education.

The rules were later amended to say, in Rule 3(3A), that the House does indeed sit on a Monday.

In 2020, the March Break for the Halifax Regional School Board (“the seat of the Legislature”) is March 16–20.

Like any rule, Rule 3(3) can be waived if there is unanimous consent. In other words, the House could meet during March Break, but only if every single MLA agrees.

Q62. What is an “emergency debate”?

The House sets aside time to debate a matter of urgent importance

A62. An “emergency debate” is a special procedure in which two hours is set aside to debate a matter of urgent importance. It sounds important, but it isn’t.

An MLA who wishes to propose an emergency debate has to contact the Speaker at least two hours before the day’s sitting is due to start, stating the topic proposed.  After the day’s sitting starts and routine business is concluded, the MLA rises to formally propose the emergency debate. The Speaker then rules on whether the emergency debate should go ahead.

How does the Speaker decide whether to authorize an emergency debate? The House has a written rule-book (link to PDF document). Rules 43(4A) and 43(10) lay out what the Speaker should take into account.

Leaving aside some technical details, the basic requirements for an emergency debate are:

  1. The matter proposed for debate “must relate to a genuine emergency, calling for immediate and urgent consideration.”
  2. The matter must be something that is within the authority of the government.
  3. The matter must not be something that will soon be debated in the House in another way (for example, during debate on a bill, or debate on the budget).
  4. The matter must not be something that has already been considered by the House.

These requirements, especially the first one, are not enforced terribly strictly. Usually the Speaker will agree to an emergency debate.

If there is an emergency debate, it lasts for a maximum of two hours, and it starts at the time when the House would normally have adjourned for the day. At the end of the two hours, there is no vote.

Emergency debates are not nearly as important as they sound. Since true emergencies are rare, the “emergency debate” procedure tends to get used for topics that are controversial. They’re important, but they’re not really emergencies.

Emergency debates tend to be proposed by the opposition as a way to say to citizens “Look, we’re doing something to hold the government accountable.” I’ve never seen the government propose an emergency debate.

I’ll be frank: during my time in the House I participated in quite a few emergency debates, on both the government and opposition sides. Nothing changes. It’s just more talk.

Q61. What qualifications does a person need to be a Cabinet minister?

There are no qualifications to be a minister

A61. Our system of government does not require that a Cabinet minister have any particular qualification for the job.

We have what you might call “civilian control” of government. The policy experts are in the department itself. The minister is expected to exercise political judgment, based on the advice given by the experts, but is not expected to bring any policy expertise of his or her own. This is a strength of our system, not a weakness. It is not fair to criticize a minister for being “unqualified”, because there are no qualifications.

Thus an MLA does not have to be a doctor or nurse to be health minister; or an engineer to be transportation minister; or a teacher to be education minister; or a farmer to be agriculture minister. There was a time when everybody thought the Attorney General had to be a lawyer, but the first non-lawyer Attorney General was appointed in 1993, and we have had many non-lawyers since then, so even that is no longer a requirement.

The choice of cabinet ministers is in the sole discretion of the premier. The premier may choose people based on ability and professional experience, but also (in order to achieve political balance) on geography, gender, ethnicity, religion, age, or seniority. The assignment and re-assignment of Cabinet positions is also in the premier’s sole discretion.

Cabinet ministers are almost always MLAs, because our system of “responsible government” says that cabinet ministers should be able to stand in the legislature and explain what they are doing. A non-MLA is not permitted in the legislature.

Even so, it is possible to have an unelected minister. The last unelected minister in Nova Scotia was Russell MacLellan, who won the Liberal party leadership on July 12, 1997, and was sworn in as premier six days later. He did not become an MLA until he won a by-election in November 1997. Before that, premier Donald Cameron appointed two non-MLAs to his cabinet just prior to the 1993 provincial election. Both were defeated in the election, so their time in cabinet was brief.

Q60. Is there a Code of Ethics for MLAs?

There is no Code of Ethics, but there are some rules

A60. No, there is no overall Code of Ethics for MLAs. But there is a Code of Conduct for cabinet ministers, and there is a law that deals with conflicts of interest, and there are rules of order in the legislature itself.

Before we discuss an MLA’s ethical obligations, there are two basic things it’s important to understand about an MLA’s job:

  1. MLAs are “office-holders”, not employees. They don’t have a boss. There is no employer or supervisor to tell them what to do, or for a citizen to complain to if the citizen doesn’t like what the MLA is doing.
  2. There is no job description for an MLA. The job is whatever they make of it. Different MLAs will take different approaches. A particular MLA’s approach depends on their personality, interests, aptitude, and experience.

Now let’s look at the rules that do exist.

In the legislature

While the legislature is sitting, there are rules of order. These rules apply only in the legislative chamber itself. The purpose of the rules is to ensure that the business of the House is done efficiently. Some of the rules are written down, but many are not. The unwritten rules are based on what has happened before in the Nova Scotia legislature, the House of Commons in Ottawa, or the House of Commons in London.

The rules of order are enforced by the Speaker. Even so, anyone who watches the legislature will know that MLAs often behave badly. If there is misbehaviour, the Speaker may ask a member (or all members) to behave; then the Speaker may admonish an individual member; and if the bad behaviour continues, then the Speaker may order a misbehaving MLA to leave the House for the remainder of the day. None of these punishments is very serious, which may explain why the behaviour of our MLAs continues to be bad. If their pay was docked, they would smarten up pretty fast; but that doesn’t happen. Maybe it should.

There is also a House of Assembly Policy on the Prevention and Resolution of Harassment in the Workplace. It came into effect on May 20, 2016, and deals with respectful communication and behaviour. It applies to relations between MLAs, their staff, and volunteers working in MLA offices. It does not apply to relations between MLAs and citizens.

Conflict of interest law (all MLAs)

There is a law called the Conflict of Interest Act that imposes certain rules on all MLAs. It’s not a complete Code of Ethics, but they are ethical rules.

The Conflict of Interest Act requires all MLAs to disclose the financial interests of themselves, their spouse, and their dependent children. The MLA’s disclosure reports are filed annually and are public.

The purpose of this disclosure is to prevent an MLA from acting on matters in which they have a direct personal interest. Section 12 of the Conflict of Interest Act says: “A member shall not make or participate in making a decision in the member’s capacity as a member if the member knows or ought reasonably to know that in the making of the decision there is the opportunity to further, directly or indirectly, a private interest of the member or the member’s family.”

The law also prohibits MLAs from accepting gifts or personal benefits in connection with their duties as MLA.

Any complaint under the Conflict of Interest Act may be sent to an official known as the Conflict of Interest Commissioner. The commissioner is currently Joseph Kennedy, a retired judge. Merlin Nunn, also a retired judge, previously held the position for 21 years. He resigned in June 2018.

Code of conduct (ministers only)

The Conflict of Interest Act also includes, in sections 18 and 19, a Code of Conduct for ministers. Again, it’s not a complete Code of Ethics, but they are ethical rules.

Apart from avoiding conflicts of interest, ministers are required to “be truthful and forthright and not deceive or knowingly mislead the House of Assembly or the public, or permit or encourage agents of the Government of the Province to deceive or mislead the House of Assembly or the public.”

That is probably the strongest ethical rule in the law, but the words were added only in 2010, and they haven’t really been tested yet.

Relations with citizens

The rules of order and the Conflict of Interest Act do not provide any guidance to MLAs about how to treat citizens, nor do they provide any guidance to citizens about what they have a right to expect from their MLAs.

In fact there are no rules, at all, governing relations between MLAs and citizens. That is important to understand—an MLA is under no obligation to meet with anyone, or talk to anyone, or be polite to anyone. They can do what they want—within the limits of the law that everyone in our society has to follow—and the only punishment is at the ballot box.

Now obviously MLAs want their constituents to like them. An MLA who angers many people is not likely to be re-elected. That, more than anything else, is what keeps MLAs behaving properly.

Q59. What are the current party standings in the House?

Lib 27, PC 17, NDP 6

A59. The current party standings are: Liberal 26, Progressive Conservative 18, New Democratic Party 5, independent 2.

The 40th Nova Scotia general election was held on May 30, 2017. The final results were: Liberal 27, Progressive Conservative 17, NDP 7. A new ministry, led by returning premier Stephen McNeil, was sworn in on June 15, 2017.

Here is a list of all the changes in the House since the last general election:

  1. Cumberland South MLA Jamie Baillie (Progressive Conservative) resigned his seat on January 24, 2018. The seat was filled in a by-election on June 19, 2018, when Tory Rushton (Progressive Conservative) was elected. He was officially sworn in as an MLA on July 18, 2018.
  2. Sackville Cobequid MLA Dave Wilson (New Democratic Party) resigned his seat on November 16, 2018. The seat was filled in a by-election on June 18, 2019, when Steve Craig (Progressive Conservative) was elected.
  3. On June 9, 2019, Lenore Zann (Truro–Bible Hill–Millbrook–Salmon River) announced she was leaving the NDP caucus, and would seek a federal Liberal nomination for the 2019 federal general election. In the meantime, she sat as an independent MLA. Zann won the Liberal nomination and was in fact elected to the House of Commons in the federal election. A by-election to fill the vacancy will be held on March 10, 2020.
  4. On June 24, 2019, Alana Paon (Cape Breton–Richmond) was expelled from the PC caucus. She now sits as an independent MLA. That means she is not associated with a political party, but she is still an MLA.
  5. On July 31, 2019, three PC MLAs resigned in order to run as Conservative candidates in the 2019 federal election: Chris d’Entremont (Argyle–Barrington), Alfie MacLeod (Sydney River–Mira–Louisbourg), and Eddie Orrell (Northside–Westmount). Of the three, only d”Entremont was elected to the House of Commons. By-elections to fill the vacancies were held on September 3, 2019. Colton LeBlanc was elected in Argyle–Barrington; Murray Ryan was elected in Northside–Westmount; and Brian Comer was elected in Sydney River–Mira–Louisbourg. All are Progressive Conservatives.
  6. On January 6, 2020, Tammy Martin (NDP, Cape Breton Centre), announced she would resign her seat effective February 6. A by-election to fill the vacancy was held on March 10, 2020 (see #8 below).
  7. On February 23, 2020, Hugh MacKay (Liberal, Chester–St. Margaret’s) announced he is leaving the Liberal caucus. He now sits as an independent MLA. That means he is not associated with a political party, but he is still an MLA.
  8. On March 10, 2020, Dave Ritcey (PC) was elected in a by-election in Truro–Bible Hill–Millbrook–Salmon River, and Kendra Coombes (NDP) was elected in a by-election in Cape Breton Centre.

 

 

Q58. What is a by-election? How is the date selected?

A by-election is a special election that fills a vacant seat

A58. A by-election is any election of an MLA that is held at a time other than a general election.

A by-election is held whenever a seat is vacant because of the death or resignation of an MLA, or if an election is voided by a court due to irregularities.

As with the timing of a general election, the decision when to call a by-election rests with the premier. The House of Assembly Act (the law that governs the operations of the legislature) says, in section 8, subsection 1, that a by-election must be called within six months after the vacancy occurs. The election date must be no more than 46 days after the election is called. Within those rules, the timing of a by-election is up to the premier.

Let’s look at an example. The MLA for Cumberland South, Jamie Baillie, resigned his seat on January 24, 2018. That is when the vacancy occurred. Premier Stephen McNeil had six months—that is, until July 24, 2018—to call the election, and voting day had to be no more than 46 days after the election was called. In fact, Premier McNeil called the election on May 17, 2018, for a voting day on June 19, 2018.

There is one other rule. Under Canada’s Constitution, there must be a general election at least every five years. The House of Assembly Act says that if a vacancy occurs within twelve months of the five-year deadline, there does not need to be a by-election.

Q57. If a budget is introduced, can the government call an election before the budget vote?

An election can be called before a budget is passed

A57. The answer is yes—there can be an election before a budget vote. It is up to the premier to decide when to call an election.

In the spring of 2017, there was much speculation about whether the McNeil government would call an election shortly after introducing a budget on Thursday, April 27th. In fact, a general election was called three days after the budget was introduced. Election day was May 30, 2017.

In 2006, the Progressive Conservative government of Rodney MacDonald introduced a budget and then called an election. In 2009, the MacDonald government was defeated on a confidence vote before the budget could be put to a vote.

If there is a change of government before a budget is approved, the new government will typically wait until the fall sitting of the legislature to introduce a budget. The machinery of government can continue to operate for quite a long time without an approved budget.

 

Q56. What is repeal?

To repeal a law means to rescind it; any law can be rescinded

A56. “Repeal” is the legal word for rescinding a law.

This question came up a lot, for example, with respect to Bill 75, the controversial law enacted in February 2017 to impose a contract on teachers.

The short answer is that any law made by the House of Assembly can be unmade by the House of Assembly. To repeal a law requires a bill, and that bill must go through all five stages of the law-making process.

That’s the short answer; of course there’s a longer, more complicated answer. The legal effect of repeal can be a remarkably convoluted legal issue, especially in criminal law.

When a law is repealed, that means it is not the law from the moment the repeal comes into force, either through proclamation or Royal Assent. The repeal can even be worded so that the repealed law is deemed never to have been the law.

Repealing a law will leave a legal void. Sometimes that’s okay. Most times, another law will have to be passed to fill the void. In fact, it’s quite common to pass a new law, and the new law states at the end that such-and-such a law is repealed. The new law has replaced the old law.

Q54. What is a Cabinet shuffle?

A shuffle changes the membership and responsibilities of Cabinet

A54. A Cabinet shuffle is when the premier adds or removes Cabinet ministers, or changes the portfolios for which Cabinet ministers are responsible.

The premier alone decides who will be a Cabinet minister, and what portfolio they hold. It is therefore the premier’s decision about whether to have a Cabinet shuffle and when.

Shuffles happen for all kinds of reasons: the death or resignation of a minister; ministers’ performance (good or bad); to give a backbencher a chance at a Cabinet position; to give the Cabinet a fresh look; or to boost an MLA’s chances of re-election.

Premiers want to present their government in the best light, so they won’t always be completely forthright about their reasons for a shuffle. For example, if the premier believes a minister is under-performing, they probably don’t want to say so out loud.

People who follow politics examine Cabinet shuffles closely for their political meaning. Who’s up? Who’s down? Who’s in favour? Who’s out of favour? Who’s strong? Who’s weak? There can be much speculation, but ultimately only the premier knows for sure the reasons for the shuffle.

If a minister is moved to a less important portfolio, it is sometimes referred to as a demotion. If a minister is moved to a more important portfolio, it is sometimes referred to as a promotion. But of course there can be arguments about which portfolios are more or less important than others. That’s all part of politics.

If a shuffle affects only a few ministers, it is sometimes referred to as a minor shuffle. If a shuffle affects many ministers, or if it includes one of the more prestigious portfolios, it is sometimes referred to as a major shuffle. The Harlem shuffle is a famous song.

A Cabinet shuffle requires a change in the legislature’s seating plan, if a minister is being added or removed, because of the convention that Cabinet ministers sit in the front row on the government side of the House.