Q56. What is repeal? Can Bill 75 be repealed?

To repeal a law means to rescind it; any law can be rescinded

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When a law is repealed, that means it is not the law from the moment the repeal comes into force, either through proclamation or Royal Assent. The repeal can even be worded so that the repealed law is deemed never to have been the law.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 In fact, it’s quite common to pass a new law, and the new law states at the end that such-and-such a law is repealed.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If Bill 75 is repealed without something to replace it, that means we would go back to the way things were before it was enacted, i.e. we would go back to having a teachers’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 If Bill 75 is repealed, any work done by the Commission before the date of repeal can’t be undone.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 There is now very little chance that Bill 75 will be repealed.

Q34. What is proclamation?

A Cabinet order declaring a law to be in force

A34. Normally a bill that passes through the five-stage law-making process and receives Royal Assent comes into force immediately. In other words, it is now the law of Nova Scotia.

But there are two exceptions to this immediately-in-force rule:

  1. If the bill itself specifies a different date on which it comes into force. For example, a bill that is approved by the House of Assembly in May 2017 might say “This bill comes into force on July 1, 2018.”
  2. If the bill itself specifies that it comes into force by proclamation. The typical words are “This Act comes into force on such day as the Governor in Council orders and declares by proclamation”. Those are the words used, for example, in Bill 148.

A proclamation is a Cabinet order stating the date on which a bill comes into force.

There are several reasons why a government might wish to delay bringing a law into force. The government might delay proclamation because

  1. It wants to hold public consultation or to provide public information about the new law.
  2. It needs to set up administrative systems to support the new law.
  3. It needs to write regulations authorized by the new law and that are needed to fill out the details.
  4. It wants to hold the law “in reserve” until it’s needed, perhaps as a negotiating tactic.
  5. It believes that circumstances have changed so that the new law is no longer needed or appropriate.
  6. It has changed its mind about whether the new law is a good idea.

It is possible for a bill to pass through the five-stage law-making process, receive Royal Assent, and never be proclaimed. Nova Scotia has a surprisingly large number of unproclaimed laws.

Q33. What is Royal Assent?

Royal Assent is approval by the lieutenant governor; it is automatic

A33. A bill that has passed third reading in the House of Assembly is presented to the lieutenant governor for approval. When the lieutenant governor signs the bill, the bill has received “Royal Assent”.

A bill can go to the lieutenant governor for Royal Assent any time after third reading. If the government is in a hurry, they will rush the bill to the lieutenant governor. Otherwise, Royal Assent can wait for a few days, or until the end of the legislature’s spring sitting or fall sitting.

If the lieutenant governor is not available for any reason, Royal Assent can be given by the Chief Justice of Nova Scotia.

Unless the bill itself says otherwise, the bill comes into force immediately upon receiving Royal Assent.

Although the lieutenant governor theoretically has the power to refuse Royal Assent, in practice it is almost inconceivable that the lieutenant governor would refuse to sign a bill that has been approved by the House of Assembly. Royal Assent is a formality.

Especially on a very controversial bill, you may hear about people writing to the lieutenant governor asking him or her to refuse Royal Assent. This is a wasted effort. You will likely get a reply from the lieutenant governor’s staff saying something like this:

In accordance with the Constitution Act of 1867 and the conventions that have developed since the attainment of Responsible Government in 1848, the Lieutenant Governor does not become involved in disputes or issues that are before the courts or which fall into the area of a public policy matter that is normally administered by the Provincial Government.

Under the circumstances in which you have contacted the Office of the Lieutenant Governor, it is the practice of this Office to advise you to contact the Premier, the respective Minister of the Crown and/or your Member of the Legislative Assembly to express your views. These are the representatives who have the responsibility for deliberating on these matters.

That is an actual message sent by the lieutenant governor’s staff to a citizen who had written to ask that Bill 75 (February 2017) be refused Royal Assent.

 

 

Q32. What is third reading?

Third reading is the final stage of the law-making process

A32. Third reading is the fifth stage of the five-stage law-making process.

As with first reading and second reading, the name “third reading” is a misnomer. The bill is not literally read out loud.

There can be debate on third reading, but usually there’s very little. Third reading tends to be very short.

A bill is not supposed to be amended on third reading. If there are any amendments the government wants to make or accept, the bill is sent back to Committee of the Whole House, and then returned to the House for third reading.

After third reading, the bill goes to the lieutenant governor for Royal Assent. That can happen the same day as third reading, or it can wait until the end of the legislative sitting.

 

Q31. What is Committee of the Whole House (CWH)?

CWH is clause-by-clause examination of a bill

A31. Committee of the Whole House (CWH) is the fourth stage of the five-stage law-making process.

CWH is often called “clause-by-clause examination”. (Each bill is divided into numbered parts. I prefer to call each part a “section”, but they can also be called a “clause”.) This is in contrast to second reading, which is “debate in principle”.

In CWH, the MLAs move through the bill one clause at a time. Any MLA may propose an amendment to any clause.

There is a 20-hour time limit on CWH for any one bill. The maximum is reached only on the most controversial bills, when the opposition parties are aiming for maximum delay.

At first glance, CWH looks like a regular sitting of the House. It meets in the legislative chamber at Province House and all MLAs can attend. But there are a couple of noticeable differences from a normal session:

  1. Because CWH is a committee, the Speaker leaves the chair. CWH is chaired by the deputy speaker—or any other MLA to whom the deputy speaker delegates the job—who sits at the table in front of the Speaker’s dais.
  2. An MLA can speak more than once.

The focus of CWH is on amendments. Sometimes the government will propose amendments to its own bill, and these amendments are always adopted because the government has a majority. The opposition proposes amendments too, but these amendments are rarely adopted.

There is one other quirk I want to mention. The very first part of every bill is the title, so that is where CWH debate starts. The debate “on title” can sometimes go on for hours. But the MLAs aren’t really debating the title of the bill. When this happens, it means the opposition is trying to delay as much as possible, and the title is as good a place as any to do it.

 

Q30. What is second reading?

Second reading is debate in principle; it’s when most of the speeches happen

A30. Second reading is the second stage of the five-stage law-making process. That is where most of the speeches occur.

The word “reading” is a misnomer, because the bill is not literally read out loud.

Second reading is when a bill is debated by MLAs in the House of Assembly. Second reading is often referred to as “debate in principle”. During the second reading debate, MLAs are supposed to focus on the principle of the bill, not its details. Sometimes the Speaker has to remind an MLA not to dive too far into the details.

Second reading starts with a speech from the MLA who sponsored the bill. For a government bill, that is the responsible minister. The minister’s second reading speech is very important. That is when the minister, on behalf of the government, explains the purpose of the bill. If the courts later have to figure out what a law was intended to accomplish, they will sometimes refer back to the minister’s second-reading speech.

After the minister is finished, the chance to speak rotates through the caucuses. Next up is an MLA from the Official Opposition, then an MLA from the third party, then back to the government. Each MLA is allowed to speak for up to an hour, and is allowed to speak only once.

Here’s a quirk: it is rare for a government MLA, other than the minister, to speak on second reading. That’s because the government usually wants second reading to finish as quickly as possible. If government MLAs speak, it just adds to the time needed.

Second reading can take a few minutes, or it can go on for days. It depends how controversial a bill is, or if there is any other reason the opposition parties want to delay a bill.

If the bill comes to a vote, and if the vote is favourable, the bill has passed second reading. The next stage in the five-stage law-making process is the Law Amendments Committee.

 

Q29. What is first reading?

First reading is introduction of a bill

A29. First reading is the first stage in the five-stage law-making process. This is when a bill is introduced by an MLA.

First reading is a formality. There is no debate and no vote. It happens near the beginning of the day’s proceedings. It all takes about twenty seconds. If you blink, you’ll miss it.

The term “first reading” is a misnomer, because the bill is not literally read out loud. The procedure goes like this:

  1. The sponsoring MLA stands and says “Mr. Speaker, I beg leave to introduce a bill entitled [the title of the bill].”
  2. The MLA hands the bill to a page, who takes it to the clerk.
  3. The clerk stands, states the bill number, and repeats the title.
  4. The Speaker says “Ordered that this bill be read a second time on a future day.”

If a bill is being introduced by the government, the responsible minister will usually hold a “bill briefing” for reporters about 30 minutes before the daily sitting begins. The minister explains what the bill is about, and will answer any questions.

Shortly after first reading, the bill is posted on the legislature’s website.

The next stage of the five-stage law-making process is second reading, which is where the real debate occurs.

There is a House rule that a bill cannot pass more than one of the five stages in a day (unless all members present agree otherwise). For that reason, debate on a bill does not usually start on the same day as first reading.

There is another House rule that only the government gets to decide which bills are called for a vote. That’s why most Opposition bills never get past first reading. Even if an Opposition bill is called on Opposition day, it doesn’t come to a vote. The reality is that the vast majority of bills that pass through the House are government bills.