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 Can Bill 75 be repealed?

To repeal a law means to rescind it; any law can be rescinded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When a law is repealed, that means it is not the law from the moment the repeal comes into force, either through proclamation or Royal Assent. The repeal can even be worded so that the repealed law is deemed never to have been the law.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 In fact, it’s quite common to pass a new law, and the new law states at the end that such-and-such a law is repealed.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If Bill 75 is repealed without something to replace it, that means we would go back to the way things were before it was enacted, i.e. we would go back to having a teachers’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 If Bill 75 is repealed, any work done by the Commission before the date of repeal can’t be undone.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.

The teachers’ contract imposed by Bill 75 expires July 31, 2019. If there is a change of government after the next provincial election, the new government might devote its energy to negotiating the next NSTU contract, rather than repealing Bill 75. If Bill 75 is repealed, it might have more symbolic than practical value, depending how much time has elapsed.

Q53. Do you have any advice for citizens presenting to the Law Amendments Committee on Bill 59 (Accessibility Act)?

The LAC hearings on Bill 59 will be much better than usual

A53. I have written posts on the Law Amendments Committee, how it really works, and some tips on how to make an effective presentation.

The LAC hearings that were held on March 2 and 3, 2017, on Bill 59 (Accessibility Act) had some unique features that will made them better than most.

Bill 59 received first reading on November 2, 2016, second reading the following day, and moved on to the Law Amendments Committee on November 7, 2016.

Many presenters at the Law Amendments Committee were critical of the bill itself, and critical of the lack of facilities for persons with disabilities at the LAC hearings. It appears the government was taken aback by the criticism. As a result, the government decided not to move the bill any further in the five-step law-making process, at least in the Fall 2016 sitting of the House.

For the LAC hearings on March 2 and 3, 2017,  arrangements were made for American Sign Language interpreters, sighted guides, and Communication Access Realtime Translation (CART), as well as a teleconferencing option. These arrangements are, at least in my experience, a first for the LAC.

It is extremely rare for the LAC to hold hearings outside of a legislative session. There was a distinct benefit for citizens wishing to appear at the Bill 59 hearings: the time pressure on government MLAs, which is one of the reasons the LAC process is normally so unsatisfactory for citizens, was entirely absent. All MLAs were polite and attentive and gave presenters every consideration. That, unfortunately, is not the norm.

At the conclusion of the LAC hearings, the government said it would take time to consider what amendments, if any, to make to Bill 59. The next step in the law-making process is Committee of the Whole House, and that cannot begin until the legislature is back in session. The most likely time for the House to resume is around April 20, 2017. (That is, by the way, later than usual.)

My advice for advocates for persons with disabilities is to seek to be part of the decision-making about amendments before, during and after the LAC hearings. The real decision-makers on Bill 59 will not be the members of the LAC, but rather the minister, the minister’s staff, and the premier’s office staff. Meetings and other communications with those decision-makers can take place at any time. As I’ve explained in another post, a presentation at the LAC should not be the first or only step that advocates take.

 

Q50. What is a petition? How do petitions work?

A petition is a call by citizens for action by the government; they rarely work

A50. A petition is a document calling on the government to take (or refrain from taking) a particular action. The distinguishing feature of a petition is that the call to action has attached to it a list of citizens’ names and signatures.

Petitions are an ancient method for citizens to seek redress of a grievance.

Petitions are frequently introduced in the Nova Scotia legislature. The opportunity for an MLA to introduce a petition is part of the routine business that opens each daily sitting.

A petition must be introduced in the House by an MLA. If you have a petition, you can ask any MLA to introduce it on your behalf. The fact that an MLA introduces a petition does not necessarily mean the MLA agrees with it, although they usually do.

An MLA is under no obligation to introduce a petition.

Petitions are popular with citizens because they are fairly easy to put together. You can go door-to-door on a street or neighbourhood, if it’s a local issue, or you can get members of an association to sign it, or you can leave it at the local convenience store or gas station where people will see it.

There are no rules about who can or can’t sign a petition. Obviously a petition to the Nova Scotia government is going to have more impact if it is signed by Nova Scotians, and a petition’s credibility can be hurt if there are obviously fake names on it (like cartoon characters, or the premier). But there are no “rules”. Remember that a petition has no official status anyway, so nobody can say “that’s a valid petition” or “that’s not a valid petition”.

Petitions can be effective to inform people about an issue, and for the organizers to get a sense of how much support they actually have. Unfortunately, petitions are not all that effective as a way to get the government to start or stop doing something.

I have seen a lot of petitions during my time in politics, and most are not very well written. The “call to action”—the specific thing the petitioners are asking the government to do— is often long-winded, vague, argumentative, lacking in balance, or simply impossible to do. It also may be something that it outside the jurisdiction of the province. If you’re going to start a petition to present to the House of Assembly, try to ensure the call to action is clear, doable, and within provincial jurisdiction.

The main reason that petitions in the House are not effective is that there is no vote, debate or other follow-up on a petition. There is no requirement that the government respond to a petition. The petition gets introduced, and that’s the end of it. It disappears.

In the internet age, electronic petitions (e-petitions) on sites like change.org are popular ways for citizens to express themselves. Despite the fact that we’re in the 21st century, the Nova Scotia legislature still does not accept e-petitions. The reason has something to do with the difficulty of verifying signatures on e-petitions. I don’t agree with the reason, and never really understood it. The petitions all disappear without trace anyway, so why does it matter if they are electronic or on paper? But that’s the rule. To be introduced in the Nova Scotia legislature, a petition must be on paper with original signatures.

The petition process does not work very well, but citizens have many other ways for their voices to be heard. For example, a letter-writing campaign to a Cabinet minister serves the same purpose as a petition. An e-petition can be presented to a Cabinet minister directly, rather than to the House of Assembly—it’s only the House itself that will not accept an e-petition. A public demonstration at Province House also communicates public support.

 

Q49. What’s an adjournment? What’s a recess? What’s the difference?

Adjournment and recess are temporary suspensions of House proceedings

A49. An adjournment and a recess are both temporary delays in the House’s proceedings, but there is an important difference between them.

Adjournment refers to the putting off of House business to a future day:

  1. If the House is adjourned, it means the day’s sitting is done, and the MLAs can go home. The House will usually resume on the next business day.
  2. If a debate is adjourned, it means that part of the House’s business is put off to a future day. The item hasn’t been approved or defeated. For example, if debate on second reading of a bill is adjourned, there is no vote, and the House will (probably) resume second-reading debate on a future day. The House can then move on to other business.

Recess refers to a temporary suspension of House proceedings. Sometimes a recess lasts a few minutes, or it can go as long as a few hours. Usually a recess is called because there is some procedural quirk that needs to be ironed out, or because the bells are being rung to call members to a vote, or because the House is waiting for something else to happen first (for example, waiting for a committee to finish its work elsewhere in the building and report back to the House).

No House business can be conducted during an adjournment or a recess. In the Nova Scotia legislature, there is never a situation in which the House meets out of public view.

The House can’t adjourn when it is in recess. If a recess is called and then the MLAs decide to adjourn, the House has to be called back into session. Then there’s a motion to adjourn, and a vote on the motion.

Sometimes there is a standing vote on whether to adjourn, which seems silly. For example, it happened on December 5, 2016, when the House met to debate Bill 75 and then adjourned before the bill was introduced. Some people thought the vote was on Bill 75, but it was only on whether to go home. A vote on adjournment is almost always a way for the opposition to cause delay. The MLAs aren’t really disputing whether it’s time to go home. It’s just another legislative head game.

Q48. How does Question Period work?

QP is the most direct and pithy exchange between government and opposition

A48. Question Period (QP) is usually considered the highlight of the legislative day. It gets more attention than it deserves.

Question Period usually starts exactly one hour after the daily sitting begins. It used to be a floating time—QP would start after other routine business was finished, and there was no way to know when that would be—but since 2013 the start of QP has been fixed.

QP gets a lot of attention because it is the most direct, pithy exchange between government and opposition.

The questions can be directed to the premier or any minister. There are only a few restrictions on what can be asked:

  1. The questions must relate to the premier’s or minister’s government responsibilities. A question could not, for example, be about a minister’s family or personal matters.
  2. The questions must not relate to a bill currently before the House for debate.
  3. The questions must be relatively brief. The Speaker is the sole judge of when a question is too long.

There is no obligation on the premier or minister to answer the question, and in fact they often don’t. (There’s a very common joke among MLAs: “There’s a reason it’s not called Answer Period.”) The premier or minister who is asked the question can also ask a different minister to answer the question. This is known as “referring the question” or more informally as “tossing the question”.

The first set of questions always goes to the Opposition, and the Opposition almost always starts with a question from the Leader of the Opposition (Jamie Baillie) to the premier (Stephen McNeil). The first question will always be on whatever the opposition considers the hottest topic of the day.

The second set of questions always goes to the other opposition party (currently the NDP). The NDP leader (Gary Burrill) is not an MLA, so the designated “leader in the House” (Sterling Belliveau) will usually lead off. Again, the NDP will focus on whatever they consider to be the hottest topic of the day.

The order of questioning then rotates among the opposition parties, in rough proportion to the number of seats they hold. The independent MLA (Andrew Younger) gets a turn. Starting in 2013, government MLAs started getting one turn per Question Period too.

Question Period is more of a theatrical, partisan show than a sincere attempt to ask good questions or offer good answers. It gets a lot of attention because of the directness of the exchange, and the speed at which things move along. Both sides are typically being very partisan, though, so you may notice bad behaviour by MLAs on all sides and a distinct lack of substance.

Ministers typically spend a great deal of time preparing for Question Period. They and their staff try to anticipate all possible questions, and they rehearse possible answers. All of this preparation time is surprising considering how few questions the typical minister is asked. Some ministers might be asked no questions for long stretches. I’ve often thought that the ministers’ briefing books are far more interesting than what actually gets asked, because the ministers’ staff know the weak points of their policies and operations, and all the behind-the-scenes flubs, better than the opposition.

The opposition also spends a great deal of time preparing for Question Period. They and their staff try to find questions that will attract the attention of reporters, and perhaps get them in the news that day. If it’s not a newsworthy question, at least they’ll try to ask something that they can take back to an interest group or to someone in their constituency. The main problem for the opposition is that they often don’t have good information or analysis on which to base their questions. The opposition is working with very thin research resources.

There’s one other little quirk of Question Period I should mention. QP is the only time in the daily sitting that MLAs are not permitted to use their phones, laptops, or any other technological aid. The idea is to ensure that the exchange is honest and forthright—opposition MLAs shouldn’t be fed questions, and ministers shouldn’t be fed answers, by staff or any other outsider. Sometimes, if you’re sitting in the public gallery, you’ll see an MLA taking an illicit peek at a screen. It’s a definite no-no. If they’re caught, their screen will be confiscated by the Speaker and they could even be expelled from the House for the remainder of the day.

Q46. What is the process for approving a budget?

A budget never changes once it’s presented to the House of Assembly

A46. The process by which the House of Assembly debates and votes on the annual budget is different from the five-step law-making process.

For you, the citizen, the most important thing to know is that the budget never changes after the finance minister presents the budget to the House of Assembly on Budget Day. If you want to have any impact on the budget, you need to get busy well before Budget Day. I have written a separate post with some tips on how to do that.

On Budget Day, the budget documents are made available in PDF format on the government website. That is usually the first chance citizens to have to see what is in the budget.

Reporters, the opposition parties and some non-government organizations get an advance look at the budget on Budget Day, starting 4-5 hours before the finance minister delivers the budget speech. This is humorously referred to as “the lock-up”, because everyone who takes part is not allowed to leave the room, and is not allowed to communicate with anyone outside the room, until the budget speech starts.

After the finance minister’s budget speech is over, the Opposition finance critic makes a reply of 10-15 minutes. The budget is then referred to “the Committee on Estimates”, but that committee doesn’t begin its work until the following day.

The budget discussion is sometimes referred to as “the Supply debate”. Whenever you hear the word “Supply” or “Estimates”, just translate it as “budget”. It means the same thing.

To discuss the budget, the House divides itself in two. There are four main things you need to know:

  1. Budget discussions are carried on simultaneously in the legislative chamber and in the Red Room of Province House. Citizens are welcome to attend one or the other, but only the proceedings in the main chamber are broadcast on television. The transcript (Hansard) of the budget discussions is not published. If you want to know precise details of what is happening in the budget debate, you have to watch.
  2. The Opposition picks five ministers whose budgets will be discussed in the main chamber, and the order in which they will be discussed. The budgets of all other ministers are discussed in the Red Room, alphabetically by department.
  3. Each minister may bring two staff members with them to help answer questions. This is one of the very rare occasions when someone who is not an MLA is allowed on the floor of the House. Even so, the staff members do not answer questions directly, but can only whisper advice to the minister. Only the minister can speak into the microphone.
  4. There is a time limit of forty hours on each side (legislative chamber and Red Room), and a further time limit of four hours each day. That means the budget debate lasts ten working days.

When the budget discussion is finished, there is a vote. The budget vote is a confidence vote. If the budget is defeated, the government “falls” and there must be an election. That last happened in Nova Scotia in 1999. Something similar happened in 2009, but technically the government fell on another vote, not the budget vote.

It’s important to note that MLAs get one vote (Yes or No) to the entire budget. They do not get to support one part of the budget, and oppose another part. There is no line-by-line voting. It’s either Yes to the whole thing, or No to the whole thing. Just because an MLA votes Yes to a budget doesn’t mean they like everything in it, and just because an MLA votes No to a budget doesn’t mean they’re opposed to everything in it. Essentially the vote is “Do I want this government to continue?”

A budget never changes between Budget Day and the day of the budget vote. There was even one year where I found an error in the budget, and the government acknowledged the error, but still wouldn’t change the documents. You might wonder: why bother with all the budget discussion if nothing ever changes?

The purpose of the budget discussion is to find out exactly what the numbers mean. The budget documents are mostly stated in dollar figures. The purpose of the budget discussion is to dig under the numbers to see what they really mean, in terms of new programs being established, and old programs being eliminated or modified. That’s the sort of thing MLAs ask questions about. However, it is also true that the budget debate can seem long and very boring, if the MLAs who are asking questions don’t really understand the operations of the department whose minister they are questioning, or if the MLAs are asking questions only about details of government operations in their own constituency.

In summary: If you, the citizen, wish to have an impact on the budget, you need to get busy well before Budget Day. Once the budget is presented to the House of Assembly, it’s too late.

Q40. What is a resolution?

A resolution is a statement of the House’s intent; it does not have the force of law

A40. There are three main items on which the House of Assembly votes: bills, resolutions and budgets.

A resolution is a motion that typically asks the House of Assembly to support a certain action. Unlike a bill, a resolution does not have the force of law when it is adopted. It is a statement, like a short speech.

A resolution typically begins with “whereas” clauses that state the thinking behind the resolution. The most important part of a resolution is the part that begins “therefore be it resolved”. This is called “the operative clause”. That is what the House is being asked to support.

In recent years, resolutions are used by MLAs mostly to offer congratulations to a person or organization that has accomplished something notable. The congratulatory resolution is usually then packaged nicely by the sponsoring MLA and sent to the person or organization involved. MLAs like doing congratulatory resolutions because they know their constituents appreciate being recognized in the House.

Here is an example of a typical congratulatory resolution. It was proposed by the premier on November 10, 2016, and approved unanimously:

Whereas the Canadian Red Cross Humanitarian Award and Young Humanitarian Award officially recognize the spirit of humanity in each Atlantic Province drawing public attention to the humanitarian activity and inspires individuals to pursue humanitarian goals; and

Whereas Dale Godsoe’s dedication to bettering her community and the lives of others has been recognized as a Member of the Order of Canada, with a Canadian Volunteer Award, Queen’s Jubilee Medal, and Progress Women of Excellence Award, and our province is fortunate to benefit from her devotion and limitless energy as she has chaired countless boards, projects, and committees; and

Whereas Rachel Brouwer was inspired to design a solar water pasteurization system that could save lives in developing countries by providing safe drinking water, and at just 14, Rachel’s efforts have already earned local and national youth science, citizenship, and community volunteer awards – not to mention inspiring many youth across not only Canada but globally;

Therefore be it resolved that all members of the House of Assembly offer their congratulations to the Canadian Red Cross Humanitarian Award winners, Dale Godsoe and Rachel Brouwer, and thank them for their commitment to improving the lives of others.

Resolutions can also be used to make a political statement. That kind of resolution is almost never approved by the House. An MLA will propose such a resolution simply to put it “on the record” and to take a dig at the other side. Frankly it’s a waste of the House’s time and I wish they would stop.

Resolutions are proposed orally by MLAs near the beginning of each daily sitting. MLAs can also submit a proposed resolution in writing. All such congratulatory resolutions are typically approved in bulk on the last day of spring sitting and the fall sitting.

There is one more important rule you need to know. The House rules require that two days’ notice be given before a resolution can be voted upon. The only exception is if there is unanimous consent for “waiver of notice”. In other words, a resolution can be voted upon immediately only if every MLA in the House agrees to do so. In reality, the vast majority of resolutions are congratulatory and so they get unanimous consent to be voted upon immediately.