Saturday, February 11, 2017

What Happens If The Legislature Is Called Back

Edited at 6:00pm February 11, 2016 to match actual recall of the legislature:


There’s lots of speculation that the government will call the legislature back to impose a contract on teachers in Nova Scotia. This is entirely plausible and is anyone’s guess, but as I have written elsewhere, I haven’t figured out why the government would bother expending political capital with an emergency session just to impose what would amount to a financial settlement. (But in fact they have done it. The legislature will resume at 8pm on Monday, February 13) Whether they impose such a contract now, or wait until the regular session which is likely to start the end of March or early April makes no significant difference to the budget or the current state of affairs. It’s unlikely (or some would even go so far as to say impossible) for an imposed contract to have any ability to end the majority of things some people seem most concerned about such as the lack of extra help during lunch hours, proms and grads (which to my knowledge have not been cancelled and which in many communities alternate plans are already underway), supervising sports teams, after school activities, and so on. That’s because most of them are outside both the contract offers and the Education Act.

That being said, I have been asked by many people what would happen in the event the legislature is called back. Here is a cheat sheet. There are two resources which are useful in looking at for further information about these situations. Graham Steele has written extensively on Facebook and his blog about processes, and the legislature has on its website a Rules and Procedures book which is fairly instructive.

Under the rules of the legislature, a minimum of 30 days notice is required to recall the legislature. In December the government asked the Speaker to recall the legislature without 30 days notice using rule 5. That rule says:

if the Speaker is satisfied, after consultation with the Government, that the public interest requires that the House shall meet at an earlier time, the Speaker may give notice that being so satisfied the House shall meet, and thereupon the House shall meet to transact its business

The Speaker is supposed to be independent. He or she cannot be directly fired by the Premier as the replacement takes a vote in the legislature. In the UK, whose rules Nova Scotia is ultimately modeled on, the Speaker actually gives up party affiliation for their time in the big chair. I can’t recall a time when the Speaker has been asked to explain why a public interest exists in recalling the legislature, but there is no reason people cannot demand the answer. In essence the public interest requirement to be answered is always “why does the legislature need to return earlier than it could with 30 days notice”. The rule is admittedly broad, but that doesn’t mean an answer shouldn’t be given.

That being said, understanding there are a million possible exceptions, here’s basically what happens (I have offered two start days, Thursday – which some people have speculated on – and Monday, just move the days around if it changes beyond that):

Day 1 (Thursday/Monday) The bill is introduced. This is first reading but nothing really happens except reading the title of the bill. Exciting stuff. There will be some resolutions from opposition members, but the bill will be introduced and the legislature will adjourn. If it’s not a Monday there will also be a 50 minute question period. It won’t matter what time of day the first day begins because it will be a short sitting. A few hours at most.

Day 2 (Friday/Tuesday) This day will see one hour of resolutions, ministerial statements, and so forth (the “Daily Routine”). Question period will take place for 50 minutes and debate will begin. This is second reading. Each member in the legislature can speak for up to one hour. It’s reasonable to assume based on past history that the government will call the legislature in at 12:01am for 24 hour sittings throughout from this point forward. A minister, presumably Education but could be Finance or another department, will have introduced the bill and will speak. The minister will not speak for long as they will want to move things forward. No other government member is likely to speak as they will hope to get the bill through first reading in day one

Day 3 (Monday/Wednesday) This will depend solely on whether the bill gets through second reading on Day 2. If it doesn’t, Day 3 will be made up with finishing first reading. Assuming first reading passes, then the Daily Business will occur but the big thing will be Law Amendments. How long this goes will depend on how many people sign up. The government can run it 24 hours and can limit the amount of time it lasts. If this is a Monday the legislature would likely not sit at all, so no daily business. Only Law Amendments would sit. Anyone can come and speak but you will get little notice.

Day 4 (Tuesday/Thursday) That thing called Daily Routine? Yeah. That again. During Daily Routine the government will report back from Law Amendments (assuming it is complete). Government might even delay the start of the legislature day until late in the evening to wrap up Law Amendments. Other than reporting back, Daily Routine, and Question Period nothing else will happen.

Day 5 (Wednesday/Friday) Daily Routine again. Then Question Period. Then Committee of the Whole House. This is limited to 20 hours. It's an archaic part of the process where the legislature is supposed to examine every bill clause by clause but it rarely happens. The only real value in it is it is where amendments to clauses from government or opposition can be put most easily into the bill (though it can happen at other stages too). The government will almost certainly bring the legislature in at 12:01am because that will all but guarantee clearing the bill in one day. In fact, while I am sure they will, there is almost no value in opposition parties using much time in Committee of the Whole House if the government calls in the legislature at 12:01am. This is because whether the legislature ends at 4am or 11:55pm the next step cannot begin until Day 6 and it is impossible to delay it beyond 20 hours.

Day 6 (Thursday/Monday Tuesday) Daily Routine but if it’s Monday there is no question period. Monday is a holiday in Nova Scotia. So Day 6 will be Tuesday. Third reading debate will begin following Daily Routine and Question Period. There are pretty good odds that, again with a 12:01am start, and given the number of opposition members, the bill would clear and be law by the night of Day 6 though it is technically possible for it to stretch into Day 7.

There are all kinds of exceptions. There are things such as dilatory motions which can delay things, but over eight years in the legislature I have never once seen them used as extensively as they could be. Also, while many try, only some MLAs are capable of speaking non-stop for an hour basically on topic (shocking, I know) so the maximum time is rarely used. There is a reason for this and it isn’t because the opposition is lazy. 

Delaying the inevitable by a day or two has little benefit. Speaking out the time through 24 hour sessions takes a lot of stamina as it is (I have seen cots setup in the rooms behind the legislature floor, take-out food becomes a staple, and members on all sides end up having shifts so they can duck out for an hour or two of sleep here and there - in many ways it’s not the best our democracy has to offer). Unless there is a clear reason why delaying things by one or two more days would change the outcome or impact of the legislation, it just doesn’t have much value.

Finally, as an aside, you may have noticed weekends are not included. The legislature is not allowed to sit on weekends under rule 3  unless there is a 2/3 majority vote to suspend the rules, and the government does not quite have 2/3 of the members in the legislature to do that (plus such a motion would trigger another debate which everyone could speak for an hour on).

(3) 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.
(3A) Notwithstanding paragraph (3), the House may meet on a Monday and on a Monday the Order of Business for the consideration of the House on a Monday shall be the same as for Tuesday, Thursday and Fri- day except that there shall be no ORAL QUESTIONS PUT BY MEMBERS TO MINISTERS.