How to use this Citizens’ Guide

 

Latest news: The Spring 2018 sitting of the House of Assembly began on February 27, 2018, and ended on April 18, 2018. The main items of business were the annual budget, which was delivered on March 20th, and Bill 72, the Education Reform (2018) Act. The Fall 2018 sitting will likely begin in October or November, but there’s no way to know for sure.

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.

Q63. Why doesn’t the House sit during 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 2018, the March Break for the Halifax Regional School Board (“the seat of the Legislature”) is March 12–16.

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”?

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?

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?

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 Merlin Nunn, a retired judge of the Nova Scotia Supreme Court.

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?

A59. The current party standings are: Liberal 27, Progressive Conservative 16, New Democratic Party 7. One seat is vacant.

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.

Cumberland South MLA Jamie Baillie (Progressive Conservative) resigned his seat on January 24, 2018. As a result, the current party standings are: Liberal 27, PC 16, NDP 7.

A by-election to fill the Cumberland South seat can be called any time, but it is unlikely to happen before the end of the Spring 2018 sitting. The timing of the by-election is in the discretion of premier Stephen McNeil.

 

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

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 has six months—that is, until July 24, 2018—to call the election, and voting day must be no more than 46 days after the election is called. The premier could call the election sooner than July 24, 2018, but he doesn’t have to.

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?

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.