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

There are no qualifications to be a minister

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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 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?

Lib 27, PC 16, NDP 7

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?

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 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?

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? Can Bill 75 be repealed?

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 comes up a lot 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.

If Bill 75 is repealed without something to replace it, that means we would go back to the way things were before it was enacted, i.e. we would go back to having a teachers’ professional agreement that expired on July 31, 2015. A new contract would have to be negotiated covering the period from July 3, 2015, forward.

What most complicates the question of repeal is that a number of things will start happening immediately under Bill 75. Repeal of Bill 75 can change the law, but it can’t change the facts on the ground.

The best example of “facts on the ground” is the Commission on Inclusive Education. According to Bill 75, the Commission must be appointed by no later than March 23, 2017, must issue an interim report by June 30th, and must issue a final report by March 23, 2018. If Bill 75 is repealed, any work done by the Commission before the date of repeal can’t be undone. It’s just a fact.

Postscript: This question has become a moot point after the 2017 provincial election. The Liberal government of premier Stephen McNeil was returned with a majority. There is now very little chance that Bill 75 will be repealed.

Q55. What is in Bill 75?

It’s complicated, but essentially it legislates the second tentative agreement with teachers

A55. Bill 75, the Teachers’ Professional Agreement and Classroom Improvements (2017) Act, received first reading in the legislature on February 14, 2017. It received third reading and Royal Assent on February 21, 2017.

Bill 75 is too long to reproduce here. The official version of the bill is available via the legislature’s website. The key features of the bill are:

  1. The bill imposes a four-year professional agreement that expires July 31, 2019. Because a professional agreement is being imposed, any strike action will be illegal as soon as the bill passes.
  2. The bill incorporates the wage and long-service award provisions from the second tentative agreement. Over a four-year contract, that’s 0-0-1-1.5 and a final 0.5% on the last day of the fourth year. Long-service awards are calculated by multiplying (i) years of service on July 31, 2015, and (ii) salary at retirement.
  3. There will be a Commission on Inclusive Education (sections 4-11). There will also be a Council to Improve Classroom Conditions.
  4. The bill does not apply to other unionized public-sector workers, except for one small detail concerning long-service awards.
  5. Class-size guidelines in Schedule B (page 24) are in force for 2017-18 and 2018-19.
  6. Work-to-rule cannot include any of the teachers’ duties listed in sections 26 or 31 of the Education Act (section 13). Enforcement of these duties is not specified in the Act, and would presumably fall to normal performance management and discipline procedures.

There is also a provision stating that the constitutionality of Bill 75 cannot be decided by an arbitrator.  That does not oust the jurisdiction of the courts.