MLAs have a great deal of choice when it comes to the kind of work they focus on, but there is one job that nobody but the elected MLAs can do: the creation of law.
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The job nobody else can do
Louise Cockram: In your book you mention that MLAs don’t actually read bills a lot of the time, and that a lot of MLAs slightly neglect that part of their role.
Graham Steele: Yeah, more than slightly.
Leonard Preyra: Oh, the legislature is not a body that has the capacity to actually make legislation.
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Mark Coffin: You’re listening to On the Record, Off Script.
My name is Mark Coffin and I am your host.
This week, we talk about the job nobody wants to talk about, the job few of the MLAs seemed like they wanted to do when they got elected to government, and the job that nobody else, nobody but those elected MLAs, can do.
That’s the work that can only happen in the legislature. The creation of law.
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Mark Coffin: Walter Bagehot was a 19th century philosopher. He wrote about the British parliament at Westminster, which is the grandfather of all parliaments in the British Commonwealth.
The Nova Scotia legislature is an early descendent of the British parliament, and it is similar both in function, and in form. It was Charles Dickens who said that looking at the Nova Scotia House of Assembly was like ‘looking at Westminster through the wrong end of a telescope.’
Bagehot’s ideas are still generally regarded as guides for parliament and legislatures around the world.
One set of ideas that Bagehot outlined was the five functions of a parliament (or legislature, in our case). Here they are:
First – “it must elect a ministry well.” This is to say, the Cabinet and Head of Government (Premier, in our case) must have the confidence of the House.
Second – they must ‘legislate well.’
Third – they must ‘teach the nation well.’
Fourth – they must ‘express the nation’s will well.’
Fifth – they must ‘bring matters to the nation’s attention well.’
When Bagehot wrote about the five functions of the legislature, he was writing about the legislature as a whole. But by extension, these functions would also have to be a part of the MLA’s role as well, in order for the whole legislature to function well.
When we spoke with MLAs, we also heard about two other roles held by them outside of the legislature.
First was the solving problems that constituents come to their MLAs with.
Charlie Parker: In reality, it all comes back to the MLA to find a solution for somebody.
David Nantes: They were mainly issues like if their constituents had a problem, what could you do to help solve it.
And second – showing up places and making people and groups feel like they matter.
Gary Burrill: I have some of that sort of symbolic affirming capacity. It’s that kind of underlined in capital letters as an MLA. It’s a greater power. It’s a big joy.
Francene Cosman: I still had to go to all the little duties, and the tea parties, and show up at the opening of this and that. I mean, it’s a huge job with a lot of time taken up. No matter what, you find the time.
Mark Coffin: This week, we focus on the tangible elements of the job that only an MLA can do, and specifically the role of legislating.
That means introducing new legislation, amending existing legislation, scrutinizing legislative proposals, and voting on legislation proposed by other MLAs and the government.
Legislating is something that can only happen in the legislature.
The legislature, at its best, could be our public square.
It is a space where elected members are legally empowered to speak freely. They can’t be sued for libel, or anything else by powerful, and wealthy interests. The promises and speeches made by MLAs are written down word-for-word in the Hansard record so that they can later be held to account for their words.
Each of us – every member of the public has the right and opportunity observe the debates that happen in the legislature online, or sit in the gallery when the House or it’s committees are in session. The legislature one of the few windows that government offers to how decisions in government in Nova Scotia are actually made.
When MLAs prioritize their role as lawmakers, our governments are held accountable for their actions, and MLAs are able to propose ideas that are given the opportunity to be debated and voted on.
The public can see what is happening – through the written hansard, and the recorded proceedings – instead of having to guess about the kind of decision-making happening inside the black-box of cabinet, or the premier’s office.
That’s what the legislature could be at it’s best. But based on our conversations with former MLAs, and our own observations of what happens in the legislature, that’s not how most MLAs allocated their time.
When it came to how MLAs spent their time, the former politicians we spoke with responded mainly to voter demands. For voters, the issues they came to their politicians with weren’t necessarily ones that demanded a legislated solution.
Jamie Muir: Didn’t get a lot of that, I mean you get that at the hockey games – ‘that stinks,’ or ‘ that should be changed,’ but not too many people came in to the office unless they had a complaint about some particular issue. You didn’t get too many people coming in saying, “I just wanted to share these ideas with you.” You didn’t get a lot of that.
Mark Coffin: Instead, MLAs focused on issues that were local and personal to the constituents that came to them.
Former progressive conservative MLA, and former speaker of the House, Art Donahue, outlines his understanding of the role of legislating as an MLA, and some of the challenges to holding it.
Art Donahue: Another function of the legislature is oversight of what the Government is doing. And that’s mainly the role of the opposition but not totally. The government backbenchers can act as an influence on what the Government will present to the legislature.
To me, the unfortunate thing is that most people do not understand that those are the roles of the legislature. There is huge confusion between the government of the day and the legislature. People – if they disagree with a government policy – will keep the opprobrium on the legislature.
Mark Coffin: I didn’t know what the word opprobrium meant when I first read it, so I’ll share the definition I found with you:
Opprobrium is the public-disgrace arising from shameful conduct.
It is also the name of a death metal band from Louisiana. I think Art was talking about the first one.
Art Donahue: People – if they disagree with a government policy – will keep the opprobrium on the legislature.
Mark Coffin: Outside of the legislature, Art says the actions of the government of the day, and the actions of all members of the legislature are blurred in the eyes of the public.
But inside the legislature, where politicians are aware of the subtle dynamics at play, and where the lines are drawn, most MLAs did not see the legislature as an effective forum for enhancing public policy and decision-making.
Louise Cockram: Did you feel it was an effective forum for discussion of deciding the best types of policy?
George Archibald: No.
Louise Cockram: Why?
George Archibald: Keeps you honest is all it does. In the government, if you’re doing something it’s like, ‘shoot, if we do that it’s gonna show up in public accounts.’ It will do that. So it does keep you honest, but as far as accomplishing anything, it really doesn’t.
Mark Coffin: In most cases, there was little chance for MLAs to add much value by the time something got to the legislature. Everything was decided already.
Louise Cockram: Do you think that the large percentage of time that they spend on case-work contributes to that problem?
Graham Steele: Yes. Why do MLAs spend their time on casework so much? Because when you’re not a cabinet minister, that’s basically what you’re doing all day, every day when you’re not out on the social circuit. They do it because there’s nobody else to do that kind of advocacy work, that kind of ombudsman role. There’s nobody else so MLAs do it because if they don’t do it, nobody else will.
They do it because they like it. Down at the legislature it’s so hard to see sometimes what difference you’re making, You’re just another bum in the chair down at the legislature. You vote the way you’re supposed to vote, you go home.
Sometimes it’s hard to put a finger what difference you’re making, what are you doing that couldn’t be done by somebody else sitting in the same chair?
Down at the legislature, you realize pretty fast that things go exactly the same, whether you read the bills or not. You’re still going to vote the same way, because that’s the way your party’s going to vote.
It’s somebody else’s responsibility to look after the content, on the government side it’s the minister’s responsibility. On the opposition side, it’s the leader and the critic’s responsibility. So if you’re the critic you’re going to read the bill, or at least you’re going to get a staff person to read the bill for you. But otherwise, why would you?
Mark Coffin: According to Graham Steele, the reason more people don’t focus on the legislative side of their jobs is because of a combination of carrot and stick incentives. In the constituency, there’s a big carrot – the chance see the impact of what you’re doing as an MLA, and how it helps people. In the legislature, it’s very difficult to see what change you might be making.
Graham Steele: But back at the constituency office when you’ve fixed somebody’s problem, it makes you feel good, you’ve helped somebody, you’ve done a good thing and that becomes kind of addictive after a while, it becomes the meaning that MLAs find in their jobs.
Leonard Preyra, another NDP xMLA from the Halifax area, put it this way…
Leonard Preyra: It’s like climbing a greasy pole. It’s pushing this rock up the hill. If it happens, it happens because a lot of people had a hand in it. I got a lot accomplished in terms of private member stuff when I was in opposition, largely because we were in a minority setting, and the government was trying desperately to survive.
Leonard Preyra has an interesting experience.
He was nominated to run for the NDP in a 2006 by-election. He didn’t win the by-election, but he didn’t lose either.
Partway through the by-election campaign, a general election was called…
Leonard Preyra: So I won in the general election but it was probably as long a campaign as this current one, much longer because I had two campaigns.
He sat in the NDP opposition caucus for three years, opposite Rodney MacDonald’s progressive conservative minority government.
He would eventually be appointed to cabinet late in the term of the NDP government, well after they came to power in 2009.
But initially, he stayed on the backbenches. Or at least, what most most of us thought was the backbench…
Mark Coffin: What was that shift moving from backbench in the caucus of the government and into the cabinet?
Leonard Preyra: Well see, I was in an unusual situation. It’s not something that was normal at the time, but I was also ministerial assistant for immigration. My principal job was to draft the immigration strategy that was eventually introduced. So I had a very specific, direct responsibility there, and I worked with the ministers responsible. The premier made it very clear that I was supposed to lead that process and come up with recommendations. I also sat on the treasury board, which was the money wing.
Mark Coffin: Before being a cabinet minister?
Leonard Preyra: Before cabinet minister.
Mark Coffin: Were you the only one who wasn’t a cabinet minister?
Leonard Preyra: Yes. I was also in the cabinet committee on legislation and I eventually chaired that committee.
Mark Coffin: So, when it comes to understanding how MLAs can have influence on legislation, Leonard has been in a variety of different places – on the opposition benches, on the government backbenches (sort of) and eventually, he ended up in Cabinet.
For this reason – and because Leonard was very open about how the process worked for him, and a lot of the political considerations involved, – we’ll share a bit about his perspective on the lawmaking process now.
We’ll start by exploring the most basic question, how an MLA can get a piece of legislation onto the floor of the house. He talks first about how this might have looked under a minority government, when you would need at least two party’s MLAs to get behind a bill.
Leonard Preyra: If you go through the order paper at any given time, there are hundreds of bills in there that members of the legislature have put in there. About 99% of them are not going to see the light of day. But if you’re an effective MLA, you talk to your caucus colleagues, you talk to your house leaders, you talk to people on the street, you talk to interest groups and you tell them what you’re trying to do, and they will often say ‘that’s a good thing.’ So if you can get an influential person or group to say, ‘this bill needs to pass,’ then a government in a minority situation will look at it and say ‘we hate this bill, we don’t want it, but if we do this, this budget might pass and we might get another measure passed.’
And so you throw it in like the pack of hockey pucks in hockey deals. In other cases, a public event happens that focuses public attention on it and they say ‘ok, we need to do something about this’ but any negotiation would take place between the house leaders. The MLAs don’t really get involved in those types of negotiations. The only negotiating you do is with your own party caucus.
Mark Coffin: Next, I asked Leonard about how the legislature works as a body for refining and improving legislation, seeing that most legislation arrives at the legislature more or less fully cooked, with few opportunities for changes or amendments.
Leonard Preyra: Oh, the legislature is not a body that has the capacity to actually make legislation. The legislature, at best, can respond to legislation that the government is proposing and a good legislature will scrutinise that legislation carefully and bring it to public attention and make constructive changes or defeat it.
But the initiative really rests with the government. I think people who expect otherwise are expecting too much, you know? When you say the legislature, you’re talking about the opposition in this case? The effectiveness of the opposition?
Mark Coffin: The opposition or even looking at the legislature as a whole, in the sense that if it’s coming from government. It’s not coming from the backbench.
Leonard Preyra: Oh, I wouldn’t assume that.
Mark Coffin: This is where the conversation got interesting. Leonard speaks about his experience with legislating as a government MLA.
It’s important to recognize here that Leonard’s perspective is markedly different from the perspective of others within his own party. We’ll share some of their perspectives later, but for now, it’s worth remembering that Leonard wasn’t like the other backbenchers: he wasn’t appointed to cabinet right away, but he was handed assignments from the Premier to assist ministers in drafting things like immigration strategies shortly after the NDP came to power.
Mark Coffin: Are there pieces of legislation that would come forward from the backbench during your time?
Leonard Preyra: Oh yeah.
Mark Coffin: Beyond a private member’s bill?
Leonard Preyra: Yeah, I chaired the cabinet committee on legislation and I sat on treasury board, and the discussions that go on in those committees and the discussions that go in caucus are pretty vigorous; the differences of opinion within the NDP caucus were far more significant than the differences of opinion across the floor.
Mark Coffin: Really?
Leonard Preyra: The Liberal caucus in particular was a pretty homogenous group of people, and there really wasn’t that much difference of opinion between them, and whatever they had was not that well thought out.
But you know, in the NDP caucus we had four or five different sets of values – people coming at it from different directions. Any government party where you have a lot of members will be like that. You’ll have various strands of the party represented, and that happens at the caucus table. They would, at caucus meetings and caucus retreats, talk about what they would like to see in government bills, but they would not dot the I’s and cross the T’s on it.
Mark Coffin: So what kind of ideas would come from caucus?
Leonard Preyra: Well, from my own example, I thought that we need to create more green spaces. We need to protect more land. The creation of the Sable Island Provincial Park, for example, was a way of signaling we were going to reserve 12% of land as green space. We passed lots of legislation relating to that. Lots of people in caucus were concerned about energy and moving to alternative energy. The whole, Muskrat falls, tidal, the comfit, the wind, they’re all part of that complex of ideas that said we need to wean ourselves off dirty energy.
Mark Coffin: You’re saying that came from caucus?
Leonard Preyra: There was a lot of support from caucus for that, now the actual…
Mark Coffin: Was it support from caucus or coming from caucus, because those are two things that, if the government brings forward something, it’s the cabinet versus the caucus…
Leonard Preyra: Well it doesn’t exactly… nobody can put their finger on this and say ‘this is mine.’ So you’re sitting around the table and someone is standing there with a flip chart – it’s old technology – and they say, ‘Mark, what would you like to see this government do?’ You might say, ‘I’d like to see them do something for youth mental health, I’d like to see them do something on energy, I’d like to see them do something about the cost of tuition and I’d like to see the employment support income assistance thing improved.’ That goes in these columns, and someone says, ‘ I like the idea, I think we really do need to do something about the cost of energy.’
[Leonard fades out]
Mark Coffin: As Leonard sees it, sometimes issues emerge from caucus and cabinet ends up acting on them – perhaps just not in the same way caucus members initially imagined.
Leonard Preyra: People make a mistake in saying the Dexter government or the premier’s office did that. It’s true, the final product came out of that, but the actual process that led to it was very much, if not caucus driven, then certainly driven by an MLA or a constituent, or a constituency issue. Most of the time the media picks up on that, rather than the government picking up on the media.
Mark Coffin: But Leonard’s experience wasn’t universal. Far from universal.
Gary Burrill was an NDP MLA who sat in the same caucus as Leonard, during the period the NDP were in power. When we spoke with Gary he was an xMLA who once represented the district of Guysburough.
He has since been elected as leader of the NDP, and in the May 2017 election, he was elected in the riding of Halifax-Chebucto.
Gary’s agenda has long been an anti-poverty agenda, so as a backbencher he tried to advance the kind of bills that would support that agenda.
Gary Burrill: The actual process is these initiatives go before something called a legislation committee, and that’s a government committee of cabinet people and backbench people. No piece of legislation comes forward unless it goes through this legislation committee.
So you would bring the matter through the legislation committee, and the first thing that happens is it’s referred to the department.
Well in my experience, this just meant that it would die. You would say jeez, some months have gone by and I haven’t heard from my proposal. Does not our legislation committee take seriously enough an MLA’s legislative proposal that there would be some time constraint on the department?
It would be an effort to then get a departmental response, and the departmental response would be negative. Of course it would, if they thought it was a good idea they would have done it themselves.
Then, where do you go? It’s not a matter of persuading the legislation committee because you have to persuade the minister. Well, the minister by and large, if the minister experiences themselves as an object, not a political subject and is not in the business of bringing forward proposals. They’re really in the business of enacting their part of the agenda from the leader’s office. So this conversation might move forward but it might just grind gears.
So what’s your next move? Well, you can take it to the caucus. So you take it to the caucus, you say, ‘there’s this proposal, it kind of died in the department, they were negative about it, there’s no ministerial initiative to bring it forward, and yet as an MLA, I think it’s really important and I want to present this to you.’ Some people in the caucus will say that’s a good idea, and other say yeah, whatever.
You’ll have a debate. But the critical thing to remember about the way this actually works is it’s not like there’s some threshold of persuasion you must meet and if you’ve met it you’ve won. In fact, you could actually have everybody in the room say ‘oh, yeah, that’s great’ and then it’s ‘thank you very much Gary, that was really nice and what’s the next thing?’ because in fact, matters only advance if they come from the political subject in a sense, which is the leader’s office.
Mark Coffin: Gary wasn’t so much frustrated that he didn’t get his way.
He was frustrated that, even when his colleagues liked the proposal, it never went anywhere.
The response to him proposing legislation within caucus was a vague rejection, without much explanation.
Gary Burrill: I have a file drawer full of proposals that I advanced, sometimes with other MLAs, sometimes by myself, that I never felt our government looked at and said, ‘Gary, you know, here’s where we have a problem with that for this reason and that reason and we’re not going to do it.’ It’s essentially that I was never able to advance it to that level of sharpness. It’s kind of like cleaning up soot, it’s just smush and mush. This is extremely unhealthy. It probably does not encourage the kind of people we would wish to have in politics come forward.
Mark Coffin: Gary’s conclusion is markedly different from Leonard Preyra’s. Leonard saw caucus as being a place where legislative ideas and proposals were generated from, and Gary saw caucus as one of the places those ideas went to die.
Although they seemed to agree on one thing.
Leonard Preyra: It’s like climbing a greasy pole you know, it’s pushing this rock up the hill.
Gary Burrill: It’s kind of like cleaning up soot, it’s just kind of smush and mush.
Mark Coffin: The process of getting a bill through the house is not a simple one.
In writing this episode, we became aware of a few things.
Most of the MLAs who had something to say about this, were men. But then again, most of the people who have been MLAs were men. Remember there were more MLAs named John before confederation, than there have been women MLAs in the entire history of the province.
Most of the people who had something to say about their own experience attempting to get legislation through the house, were members of the NDP.
Perhaps we could have been more assertive in asking questions related to this topic in our interviews with MLAs from other parties, and with female MLAs, but my sense of things, based on all the conversations I and other members of the Off Script team had was this:
The notion of lawmaking, of participating in the public debate in the legislature, and scrutinizing the laws presented by the government and other members, simply isn’t the primary focus of most MLA’s work – whether they are inside or outside of government.
If an MLA is part of a governing party – particularly backbench MLAs – they trust and support their leadership, or they at least know their place in the pecking order of the party and understand the futility of getting too involved in legislating, and the dangers for their careers.
If they’re not a part of the governing party, and it’s a majority government, they’re not even in the pecking order. If an MLA is a critic, they’ll make noise about an issue, and will present bills that outline their own party’s stance, but that is mostly for show. It’s not going to pass. It’s unlikely that they will devote much of their time to initiating new legislation, in the hopes that the idea will be entertained by the members of the governing party. It’s just not what happens.
But if they’re not a part of the governing party and it is a minority government, then the game has changed. The change, however, really only affects the opposition party Leaders and House leaders, who are now apart of the pecking order.
The party’s leader or house leader needs to be behind an MLAs private members bill in order for it to get the attention it needs to be taken seriously on the house floor.
But if an MLA has a problem with a bill from another party (or their own) that the house leader has decided to support with another party leader, and chooses to express that in the house… some serious shade will be thrown in that MLAs direction.
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Mark Coffin: Thanks for listening to this episode of the Off Script podcast.
This week’s episode was written by me, Mark Coffin. Editing and research by Louise Cockram.
Sound production was done by a new member of the Off Script team, Latie George.
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