Q8. How does the Law Amendments Committee really work?

The government will do everything it can to move a bill through the committee quickly

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A8. I have explained in other posts what the Law Amendments Committee (LAC) is and offered some tips on how to make a good presentation to the LAC. Now I’m going to tell you how it really works. (I’ve also written a post about the unique features of the LAC hearings on Bill 59 in March 2017.)

In particular, a common question I’ve heard is “Can the government limit the number of speakers at the LAC?”

The LAC is where the public is heard. It should be the centrepiece of a democratic legislature. It isn’t. It is not at all user-friendly. That is not an accident.

(By the way, nothing that follows is a knock on the Liberals. The slow march towards an ever more tightly-controlled LAC has occurred under PC, NDP and now Liberal governments.)

A government’s primary interest, especially on a very controversial bill like Bill 75, is to pass the bill as quickly as possible. The rules set some limits on how long each stage of the legislative process can go on.  The only exception is the LAC, which has no official time limit.

As a result, the LAC has become in recent years—at least when it comes to controversial bills—a battleground between government, opposition, and citizens. The procedure is a moving target, and seems to change a little bit with each new controversy. As it turned out, the LAC hearings on Bill 75 in February 2017 featured a hard cut-off. Over 300 of the 400 registered speakers were not heard. The same happened on Bill 72 in March 2018. The government decided, even before the LAC hearings started, that LAC would get a single day, no matter how many citizens wanted to present.

Always remember that the government wants the LAC to be as short as possible, and that they’ve already decided what they want the bill to say. Those are the keys to understanding everything. If you keep those keys in mind, you will understand the following features of the LAC:

  1. The LAC meets only at Province House. That is inconvenient for any citizen who cannot get to downtown Halifax. The government doesn’t care.
  2. The LAC sometimes meets at short notice. That is inconvenient for any citizen who does not have a very flexible schedule. The government doesn’t care.
  3. The LAC sometimes has very, very, very long meetings. That is inconvenient for any citizen who cannot, for example, be available to present at 2:25am on a Thursday morning. The government doesn’t care.
  4. Committee members receive written submissions but don’t usually read them.
  5. Government members on the LAC don’t ask questions. That’s because if they do, it just adds to the time.
  6. Government MLAs sometimes don’t pay a lot of attention to what’s being said. That’s because their instruction is to pass the bill through the LAC as quickly as possible without amendment. Sometimes government MLAs make it a little too obvious that they’re bored and not paying attention to the citizen who is speaking.
  7. Sometimes the MLAs will bicker over procedure. It’s almost always about time. The chair will make rulings on any procedural question, and will almost always favour the government. Because the government members have a majority, they can essentially dictate what the answer to any procedural dispute will be.

On most bills, there are no presenters at LAC. On some bills, there may be one or two presenters. They may get up to 20 minutes. On a controversial bill with a lot of presenters, the presentations can be shortened to as little as five minutes. I’ve never seen the time set at fewer than five minutes. When the five minutes is up, the presenter is cut off and the committee moves to the next presenter.

Can the government limit the number of presenters? If you had asked me 15 years ago or even 10 years ago, I would have said No. If you ask me today, I would say Yes. The precedent has been established.

After trying different tactics over the years, the government seems to have settled on the position that the LAC can set an overall time limit on its proceedings. They can (for example) declare on Wednesday that they will accept no more presenters after midnight on Thursday.

And if that means some citizens will not be heard, then so be it.

 

 

Q7. What is the Law Amendments Committee?

The LAC is where the public tells MLAs what it thinks about a bill

A7. The Law Amendments Committee is the third stage in the five-stage law-making process.

After second reading debate is finished, a bill moves to the Law Amendments Committee. I’ll call it LAC for short.

The LAC should be called the Public Hearings Committee, because that’s 99% of what it does.

The LAC has nine members. The party composition of the committee reflects, more or less, the composition of the House. Since the Liberals have a majority in the House, they have a majority on all committees too.

The LAC is chaired by the Minister of Justice, or anyone to whom the minister delegates the job. Since the government wants to keep control of how the LAC operates, the minister will only ever let another government MLA take the chair.

If you go to the LAC, you will see one or two people sitting beside the Minister of Justice. They are lawyers from the Office of the Legislative Counsel. They are the ones who actually write the bills and amendments. They’re there to listen to the submissions, in case the committee decides to amend the bill based on a submission. (In truth, that almost never happens.)

The LAC meets only in the Red Room of Province House in downtown Halifax. It could theoretically meet elsewhere—for example, in other towns around Nova Scotia—but I’ve only ever seen it do that once. Don’t expect it to happen again in your lifetime.

Because the LAC meets in the Red Room, its meetings are not broadcast on Legislative TV. However, during the LAC meeting concerning Bill 75 on February 16, 2017, the committee granted permission to media outlets to live-stream. To my recollection, that is a first for the LAC.

Any member of the public may ask to speak to the LAC.  The roster is kept by the Office of the Legislative Counsel. There’s a good web page that explains how to participate.  I won’t repeat all that information here.

That’s what the LAC is. In separate posts, I’ve written about how the LAC really works, some tips on how to make a good presentation to the LAC, and some unique features of the LAC hearings on Bill 59 in March 2017.

After a bill is finished in the LAC, it moves on to Committee of the Whole House, which is the fourth stage in the five-stage law-making process.

 

Q6. What is a confidence vote?

A confidence vote is any vote that could trigger an election

A6. A “confidence vote” is any vote that triggers an election if the government loses.

An annual budget is always a confidence vote. If the budget is defeated, the government must resign and there must be an election. That last happened in Nova Scotia in 1999.

There can also be a motion of non-confidence. A motion can be presented only if the House is sitting.  If a motion of non-confidence passes, the government must resign and there must be an election.  Under a majority government, there is zero chance of a non-confidence motion passing, so the Nova Scotia legislature rarely sees them any more.  There used to be at least one every year, but the practice of having an annual non-confidence vote stopped in 1998.

Apart from the budget and a non-confidence motion, there is only one other situation that involves confidence: if the government declares, in advance, that a vote is a confidence vote.

Why would a government do that? Why would they deliberately run the risk of having to resign and triggering an election? There are two possible reasons.

First, a government may actually wish to trigger an election. That happened in 2009, when the Progressive Conservative government of Rodney MacDonald was fairly certain that its budget would be defeated. Rather than wait for the budget vote, another inconsequential bill was declared to be a matter of confidence. When that bill was defeated, the government resigned and the election was on. I was there. It was weird, and is not likely to be repeated any time soon.

Second, a government may use the threat of a confidence vote to keep its own MLAs in line. The ultimate threat of a premier with rebellious backbenchers is to call an election that the backbenchers do not want. If the backbenchers believe they may be defeated in an election, they will grumble but likely fall into line.

Q5. How many government MLAs have to defect to defeat a bill?

It’s complicated, but the short answer is nine

A5. Such a simple question, such a complicated answer.

Here’s what you need to know to do the math:

  1. All votes on a bill are decided by a simple majority of members present.
  2. The Nova Scotia legislature has 51 members.
  3. Our MLAs almost always vote with their party. In other words, it’s usually safe to assume that all MLAs in the same party will vote the same way.
  4. The Liberals have 27 members. The Progressive Conservatives (PC) have 17 members. The New Democrats (NDP) have 7 members.
  5. The Speaker doesn’t vote unless there’s a tie. The Speaker is a Liberal.
  6. If a member is absent, or abstains, then no vote is recorded for that member.

Let’s take that basic information and work through the scenarios.

Assuming all members are present and voting, a tie vote would be 25-25. That would require only one Liberal to vote with the opposition. The Speaker is a Liberal. It is likely, but not certain, that the Speaker would break a tie by voting with the government.

In order to ensure defeat of a bill, the vote would have had to be a minimum of 26-24. That would require two Liberal MLAs to vote with the opposition (17 PC, plus 7 NDP, plus 2 Liberals equals 26 votes).

That result depends on a number of assumptions. The major assumptions are that all members of the opposition would be present and voting against Bill 75, and that two Liberals would vote No.

The calculation changes if any member of the opposition is absent, abstains, or decides to vote Yes.  The calculation also changes if any of the dissenting Liberals is absent or abstains rather than voting No.  The calculation also changes if any of the non-dissenting Liberals is absent.

My experience is that a government MLA who disagrees with a government bill is far more likely to “take a walk around the block” (i.e. be absent for the vote) rather than actually vote against the bill.

During all my time in the legislature, during which I saw literally thousands of votes, I have seen a government MLA vote against a government bill only two or three times. The maximum I’ve seen on the same bill is two, and that was when the government had a comfortable majority and everyone knew the bill was going to pass anyway. The chances of two Liberals MLAs showing up and voting No, with the effect of defeating a bill, are effectively zero. Besides, if the government had an inkling of bill-killing dissent, they wouldn’t call the vote. In politics, you don’t call a vote that you know you’re going to lose.

Q4. What is a bill number? How are bill numbers assigned?

Bills are numbered in the order they’re introduced

A4. All bills have a long title and almost all of them also have a short title.  Lawyers usually refer to them by the short title, but these names can be quite boring and hard to remember.

The short title of the bill the government intended to introduce on December 5, 2016, was the Teachers’ Professional Agreement (2016) Act. The short title of the bill the government did introduce on February 14, 2017, was the Teachers’ Professional Agreement and Classroom Improvements (2017) Act. Boring and hard to remember, right?

Every bill is also given a number. The bills are numbered in the order they’re introduced. When the legislature starts a new session, the bill numbers start again at Bill 1.  The bill numbers are always way easier to remember than the long title or the short title.  That’s why the general public tend to talk about bills by their numbers rather than by their titles.

Q3. What is the process to make a law?

There are five stages in the law-making process

A3. A proposed law is called a “bill”.  There are five stages in the passage of a bill: first reading, second reading, Law Amendments Committee, Committee of the Whole House, and third reading.

The word “reading” is a misnomer. The bill is never literally read out loud.

First reading is introduction. It’s automatic and takes about 20 seconds. There is no vote.

Second reading is “debate in principle”.  Every MLA can speak for up to an hour, and they can speak only once. Second reading can be over in minutes, or it can go on for days.

The Law Amendments Committee (LAC) is a committee of nine MLAs who hear from the public. Any member of the public can ask to appear. LAC can also consider whether to make changes (amendments) to the bill, but it doesn’t have to. LAC is important and complicated and so I have separate posts about what LAC is and about how LAC really works.

The Committee of the Whole House (CWH) is clause-by-clause examination of the bill. It can take a minute, or it can take up to 20 hours.  The committee consists of all MLAs (hence the name), but it follows a different procedure than a normal House session.

Third reading is where any final speeches are made. The bill cannot normally be amended on third reading. Third reading is usually quite short.

There is one more really important thing to know: The rules of the House stipulate that a bill can’t pass through more than one stage each day. (That’s a bit simplistic, but it’s essentially right.) As a result, it takes a minimum of five days for a bill to be approved.

There is one big exception to the one-stage-per-day rule: a bill can move through more than one stage if every MLA present agrees that it’s okay. This is called “unanimous consent”. That can happen on uncontroversial bills—I’ve seen a bill pass through all stages in only a few minutes—but it’s quite rare.

With one exception, a bill comes into effect (i.e. it is the law) as soon as it passes third reading and receives Royal Assent.

Sometimes the bill itself says it does not come into force until a later day, or does not come into force until proclamation. If the bill says it comes into force on proclamation, then the Cabinet decides when it will come into force. Some bills pass through the legislature and receive Royal Assent but are never proclaimed.

What I’ve outlined here is the very basics of how a bill passes. There can be a huge amount of jockeying over how exactly a bill moves through this process.

 

Q2. What or who is “the Speaker”?

The Speaker is the MLA chosen to act as the legislature’s referee

A2. The Speaker is the presiding officer of the House.

The Speaker is always an MLA.  The Speaker is elected by the other members.  If there is a majority government, the reality is that the government members will always elect one of their own members to be the Speaker.  The last time the Speaker came from the opposition was 1999 (Ron Russell, Progressive Conservative, Hants West).

The current Speaker is Kevin Murphy (Liberal, Eastern Shore).

The Speaker sits in a chair on a raised platform at one end of the legislative chamber. On the Speaker’s right is the government, and on the Speaker’s left is the opposition.

The Speaker’s role is to be a “servant of the House”, not the servant of the government. In other words, he is supposed to do what is best for the House as a whole. It is like playing a hockey game where the teams pick one of the players to be the referee.

The Speaker does not vote unless there is a tie. Since MLAs almost always vote with their party, and since the Liberals currently have a majority of seats, there are no tie votes. In fact I can’t remember the last time there was a tie vote in Nova Scotia, and I’ve been watching the Nova Scotia legislature closely for 20 years.

Ironically, the “Speaker” is the MLA who speaks the least in the House. The Speaker never participates in debate. If the Speaker wants to participate in debate, he or she must leave the chair. In my twelve years in the legislature, I saw that happen only twice.

In the United Kingdom, the MP who becomes the Speaker leaves the party caucus (which in the UK is very loose anyway) and runs in the next election as The Speaker, not on behalf of any party.

In Nova Scotia, the Speaker remains as a member of his caucus (and so far in Nova Scotia it has always been a “he”, which is kind of startling, in a bad way). There is a convention that the Speaker does not attend caucus meetings while the House is sitting. There is also a convention that the Speaker tones down the partisanship in public statements. In all other respects, the Speaker is a party member and runs under the party banner in the next election. Conventional wisdom is that being Speaker increases an MLA’s chances of being re-elected.