Legislative Council of Nova Scotia - Abolition

Abolition

Following the Conservative landslide in 1925, the Council abolition debate was reopened. The Conservatives' first Speech from the Throne in 1926 called for the abolition of the Council; a few weeks later, Rhodes introduced an abolition bill in the Assembly. Meanwhile, Rhodes worked behind the scenes to try to negotiate for the Council to agree to abolish itself. In February, Rhodes offered the pre-reform Councillors pensions of $1000 per annum for ten years, and the post-reform Councillors $500 per annum for ten years; this proposal was rejected almost unanimously by the Council as a "bribe", and inspired the Council to pass a resolution affirming its important constitutional role.

With the Council seemingly unwilling to abolish itself, Rhodes considered alternative means of achieving abolition. In early March, he settled on a scheme to appoint twenty Councillors in addition to the eighteen already sitting in the Council. As the Council was presumed to be limited to twenty-one, this would have resulted in seventeen Councillors over and above the presumed constitutional limit. Wary of the constitutionality of the appointments, Lieutenant-Governor James Cranswick Tory wrote of the plan to Secretary of State in Ottawa, stating that he planned to make the appointments on March 15, 1926, unless instructed otherwise by the Governor General. After receiving an opinion from the Law Officers expressing the belief that the appointments in excess of twenty-one would be unconstitutional, the Governor General instructed Lieutenant-Governor Tory not to make the appointments for the time being, and suggested that the matter should be judicially considered.

Rebuffed by Ottawa, the Rhodes government then filed a reference for an advisory opinion with the Supreme Court of Nova Scotia. The reference presented four questions:

1. Has the Lieutenant-Governor of Nova Scotia, acting by and with the advice of the Executive Council of Nova Scotia, power or authority to appoint in the name of the Crown by instrument under the Great Seal of the Province so many Members of the Legislative Council of Nova Scotia that the total number of the Members of such Council holding their offices or places as such Members would

(a) exceed twenty-one, or

(b) exceed the total number of the Members of said Council who held their offices or places as such Members at the Union mentioned in Section 88 of The British North America Act, 1867?

2. Is the membership of the Legislative Council of Nova Scotia limited in number?
3. Is the tenure of office of Members of the said Council appointed thereto prior to May 7, A.D. 1925, during pleasure or during good behaviour or for life?
4. If such tenure is during pleasure, is it during the pleasure of His Majesty the King, or during the pleasure of His Majesty represented in that behalf by the Lieutenant-Governor of Nova Scotia acting by and with the advice of the Executive Council of Nova Scotia?

In October 1926, the Nova Scotia Supreme Court issued a divided opinion in which two judges ruled that the Lieutenant-Governor could appoint more than twenty-one Councillors, and two ruled that he could not. While three of the four judges ruled that the Councillor's tenure of office was at pleasure, only two ruled that it was at the pleasure of the Lieutenant-Governor; the third judge ruled that they served at the pleasure of His Majesty the King. (The fourth judge ruled that Councillors served for life.) With the court effectively evenly divided on all issues, there was no majority decision, and so Rhodes would have to wait for an appellate verdict before he could abolish the Legislative Council.

In November 1927, the Judicial Committee of the Privy Council would finally rule that the Lieutenant-Governor could appoint so many Councillors as he desired and that Councillors served at his pleasure. After fifty years, abolition would finally be possible.

In the weeks before the 1928 legislative session, Rhodes dismissed all but one of the Liberal Councillors appointed before 1925 and appointed enough new Conservative members to reach the symbolic number of twenty-two (to emphasize the Lieutenant-Governor's constitutional right to increase the size of the Council). On February 24, 1928, the now Conservative-dominated Council passed an abolition bill sent to it days before by the Assembly. Under the terms of the bill, the Council would be abolished as of May 31, 1928, so as to avoid any constitutional problems with legislation passed during the 1928 session.