The Nova Scotia House of Assembly has ground to a standstill for the nine months that COVID-19 has raged throughout the world. I contend that this legislative inaction can either be attributed to the hyper-politicization of parliamentary procedure or to uninformed members stumbling through the motions. Either case is concerning, and it should concern all Canadians: members of a House of Assembly are elected first and foremost to exercise their rights and responsibilities as legislators.
Nova Scotia’s gridlock reflects a cheapening of parliamentary representation because those we elect to legislatures are primarily tasked with specializing in vetting laws and government policy within the legislative context—with a knowledge of procedure. As MPs and members of assemblies move further away from this context, we lose true legislative representation.
The issue, in brief, is that the House of Assembly has not sat since March 10, 2020, and the government announced that it would end the current session on December 18. It is unusual for a Canadian legislature to not sit for nine months, although Nova Scotia’s rules only require two sittings a year. The opposition (composed of eighteen progressive conservatives, five NDP, and two independent members) has alleged that the government is blocking the legislature’s return, and major Canadian news outlets have reported the same problem.
These reports are inexact and compound the issue of members rights and responsibilities. Journalists connect the voting public with moves made in Canadian legislatures. Contextualizing these moves with due regard for the legislature’s traditions and rules is an essential element to keeping our representatives accountable.
Nuts and bolts
There’s a simple addition problem in the Nova Scotia legislature that makes the government reticent to meet the House of Assembly. The current Liberal government holds twenty-six seats out of fifty-one, but one of its members is the Speaker (and thus impartial). The Liberal government consequently holds an even half of the seats; the opposition also holds twenty-five seats. The government’s grasp on power depends on all of its members attending each sitting.
This situation resembles the BC legislature’s very close numbers after the forty-first general election in 2017. The governing Liberals there had forty-three seats, while the combined opposition parties held forty-four seats. The Liberal government met the House, lost a confidence vote, and the NDP opposition formed a government without an election.
In Nova Scotia’s case, of course, COVID-19 complicates sittings. A Liberal member could easily drop out of a vote or fail to attend if the legislature is authorized to sit remotely. If a couple of Liberal members drop out, the government could fall. There’s certainly political interest on the government side in not meeting the legislature.
Bear in mind that there’s political interest in the opposition not getting to grill the government in Province House. Allegations of undemocratic government are an easy narrative, one that might let an opposition party gain seats at an election, thus tipping the balance of power toward a new government.
The politicization of deadlock
The specter of a changed government or a general election looms for the governing Liberals in Nova Scotia. The opposition parties may or may not be ready for the hustings. The more critical problem is that they’ve abdicated all control over the legislative process and pin the problem on the government.
The Liberals have consistently blocked Nova Scotians from asking questions through their elected representatives. They refused to meet through the pandemic, shut down committees for six months, and are once again shutting down the legislative processes meant to hold governments to account.
This statement over-simplifies the problem because governments do not control legislative sittings; members have this power. Governments only have the power to dissolve, prorogue, and summon legislatures.
The Progressive Conservative leader, Tim Houston, released a statement that pins the blame for no legislative debate on the government:
When the Legislature finally meets, it will be over 280 days since your elected MLAs last gathered at Province House. It will be open for less than an hour before it’s shut down again. By merely meeting this obligation, the McNeil Liberals are doing the bare minimum. Their continued culture of secrecy keeps them from answering to the people, for both their decisions and their indecision.
A look at the Assembly’s rules makes the issue clear. Rule 3(4) tells us that the House can’t sit without thirty days’ notice to members. This rule has been relied upon as the excuse for the House not sitting until prorogation, but the Speaker is able to recall the House at any time under rule 3(5):
wherever the House stands adjourned for a period of ten sitting days or more, 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.
Note the language here. The government is to be consulted, but the Speaker has the final say about when the House meets. The question for the Speaker in this circumstance is twofold. He is required to consider whether the public interest benefits from the House sitting. He is also required to consider the House’s best interest.
These are slightly different issues. The public interest is a broad, subjective concern. The House’s interest is defined by its members, whom the Speaker serves.
In the Westminster system, the Speaker defends all members’ rights, the most important of which is to speak in the House. Speaker John Allen Fraser, in the Canadian House of Commons, described this duty with reference to Speaker Lenthall, of the English House of Commons: ‘It was speaker Lenthall who, in the reign of Charles I, declared in the presence of the King that the Speaker’s first duty lay to the House of Commons.’ Speaker Fraser, moreover, described the application of parliamentary rules as a protection for the minority and majority: rules
‘are designed to allow the full expression of views on both sides of an issue. … This is the kind of balance essential to the procedure of a democratic assembly. Our rules were certainly never designed to permit the total frustration of one side or the other, the total stagnation of debate, or the total paralysis of the system.’
For these quotations, however, the system in Nova Scotia appears to have stalled.
When I speak with the opposition parties, they tell a story of frustrated procedure: the government will not agree to change the House’s procedure to allow electronic voting.
This response, and the opposition’s framing of the issue, is not convincing when the House of Assembly’s rules and the Speaker’s role are taken into account. The House in this case is evenly divided between government and opposition. Each side has twenty-five seats; neither side can claim to speak for the majority of members. In this context, either side could appeal to the Speaker to bring the House together, to hash out COVID-19 rules, and to debate issues of public interest.
I asked the Speaker whether he’d heard from members on this point. At the time of publication, the Speaker had not responded to my questions.
The bottom line
Members and the Speaker seem to be the crux of this debate. Their individual and collective inaction, perhaps caused by party politics, has deprived Nova Scotians of House of Assembly oversight. Commentary on this issue has, to date, been focused on the government’s actions. Much more careful attention needs to be paid to the opposition’s ability to bring the legislature together, and to the Speaker’s powers.
When these subjects receive their due, the story is unfortunately not so one-sided as politicians might like. With everyone to blame, voters have to consider whether the political culture that they’ve elected needs a kick-start to re-focus members’ attention on representing constituents. They can only really do so if the legislature sits.