Memorandum by the Legislative Assembly
of British Columbia
1. Are there any differences between
the scope of the privileges of your Parliament compared with the
national Parliament? Does Article 9 of the Bill of Rights 1689
expressly or implicitly apply to your legislature? Is this interpreted
as meaning that a Member's immunity from an action for defamation
is absolute in respect of everything said and done in the proceedings
of the legislature? Does this even extend to the revelation of
official secrets in debate?
The privileges of our House correspond to those
of the Canadian House of Commons, with the possible exception
of Members being compellable as witnesses in a criminal proceeding.
Article 9 of the Bill of Rights 1689 applies
to our House implicitly, through our Standing Order 1, the "general
rule" for unprovided cases, which refers to the UK House
of Commons. More specifically, the British Columbia Constitution
Act (section 50) refers to the privileges exercised by the
UK House of Commons on 14 February 1871, a date which corresponds
to British Columbia's entry into Canadian confederation and the
assumption of full constitutional authority.
This is interpreted as granting full immunity
to Members for statements made in the House. British Columbia
has no Official Secrets Act.
2. Are there any statutes or other provisions
defining your privileges? May we see them?
Privileges are defined in section 1 of the Legislative
Assembly Privilege Act and by sections 50 and 51 of the Constitution
3. Do you have exclusive control over
your procedure (in your ability to make Standing Orders for example)?
The House has exclusive jurisdiction over its
Standing Orders and the interpretation of parliamentary procedure.
There are, however, certain statutory requirements in the province's
Constitution Act that materially affect the House, eg the
necessity of electing a Speaker at the first meeting, what constitutes
4. Do you have exclusive control over
the buildings in which the legislature meets and over its staffing
There is shared jurisdiction over the parliamentary
precinct. Some office space, for example, is Legislative Assembly
space while other space is in the hands of the Executive Council
(ie for ministers' offices). There is shared jurisdiction over
some of the services provided as well: for instance, the tour
guide office is run by the Protocol and Events Branch at the Ministry
of Finance. Security remains in the hands of the Sergeant-at-Arms.
In regard to staffing, Assembly employees include
those in the Speaker's and Clerk's offices; Hansard; the
library; security; Legislative Comptroller; and the dining room.
Other staff are hired by ministers, party caucuses and independent
MLAs. Ministers' staff are paid out of separate appropriations
for Ministers' offices. Budgets for party caucuses are assigned
globally based on a formula ($X x number of MLAs), and are to
be used for all caucus needs, including staffing. Caucuses have
discretion over the number and classification levels of their
5. Does the general law (eg on employment,
office conditions) automatically apply within the parliamentary
precincts; or does it only apply to the extent accepted by Parliament
and/or the extent specifically provided in statute?
Employment standards law does not apply to the
Legislative Assembly, although the issue is currently being investigated
more fully by our Human Resources office. There is no provision
in the Legislative Assembly Privilege Act regarding employment
issues or the surrender of privilege in deference to general employment
laws. The Assembly has formulated human resource policies that
closely mirror those in regular government.
6. Can you punish a member of the public
of a "contempt of Parliament?" Is there any appeal to
A member of the public can be punished for contempt
of our House, pursuant to sections 5-7 of the Legislative Assembly
Privilege Act. There is no appeal to a courtthe Assembly's
decision in the matter is final.
7. Have you codified those offences
which are considered to be a contempt of Parliament? If not, can
you give examples of cases where a member of the public has been
punished for a contempt?
Offences considered to be contempts have not
been codified. On rare occasions, a warrant has been issued for
members of the public to be called before the Bar of the House
and chastisedfor example, two newspaper editors in 1892
for an article judged to be libellous and in contempt of the House.
The two were remanded in the custody of the Sergeant-at-Arms for
a period of some days. More frequently, complaint of an offending
statement in the press or elsewhere is made in the House, but
no formal action is taken.
8. Are there any circumstances (eg where
a parliamentary committee's responsibilities relate to the administrative
management of the House or the letting of contract) where the
proceedings of such a committee can be considered by a Court (eg
in a dispute over a contract)?
The management of the Assembly falls under the
jurisdiction of a statutory committee, the Legislative Assembly
Management Committee. It is composed of representatives of the
recognised party caucuses, and is chaired by the Speaker. This
Committee functions with all the privileges and immunities of
the House itself, which presumably extend to commercial contracts.
With regard to employment contracts, see response to question
9. The United Kingdom Government may
introduce legislation on corruption which, as part of the general
reform, will include an offence of bribery of an MP or a Peer.
what statutory offence exists
in relating to bribery of a member of the legislature?
who authorises prosecution?
are there circumstances where
the Court can hear and examine evidence on what a member of the
legislature has said and done in the course of proceedings?
are there circumstances where
a tribunal (or a Royal Commission) may do so either in circumstances
where corruption is alleged, or in any other circumstances?
Statutory provisions regarding bribery of a
member of the House are contained in the Legislative Assembly
Privilege Act (section 5) and the Criminal Code of Canada,
sections 121 and 122. The province's Constitution Act (section
34(d)) provides that a member forfeits his or her seat upon conviction
of an indictable offence. Prosecution is authorised by Crown Counsel.
See also British Columbia's Standing Order 89 and notes thereon.
10. Is there any procedure for "waiving
privilege" when a member of the legislature is charged with
an offence relating to his or her parliamentary duties?
There is no codified procedure for "waiving"
privilege. As British Columbia is unicameral, there is no question
of having to waive privilege in regard to infringements on financial
procedures, as with the UK House of Lords. With other matters,
the House may simply decide not to pursue an instance that may
be construed as infringing on privilege, eg libellous statements
made outside the House.
11. To what extent does privilege provide
for immunity from arrest or from attendance, as a witness, or
as a defendant in a civil suit, before a Court? Are any such immunities
confirmed in statute? Does any immunity extend to attendance before
tribunals (or Royal Commissions?) What limitations are placed
on any immunity? Can a member of the legislature be served with
a subpoena which requires him or her to appear in Court on a day
when the legislature is sitting? Is any right or immunity exercised
by a member without reference to the House or its Presiding Officer,
or is authorisation required?
Please see chapter 9Privilege of Freedom
from Arrest and Related Privileges in Maingot, 2nd ed pp 152-161.
See also section 5(j) of the Legislative Assembly Privilege Act
(RSBC 1996 c 259).
12. Can a member of the legislature
be served with a subpoena in the precincts of Parliament on a
sitting day? On a non-sitting day? Or would such service be regarded
as a contempt?
A Member can be served with a subpoena practically
anywhere however; serving one in the British Columbia parliamentary
precincts during a sitting day could be viewed as a contempt of
the House. As well, serving a subpoena upon a member of a parliamentary
committee while it is sitting in the precincts or beyond the Parliament
Buildings could be a breach of privilege. We are not aware of
any such subpoenas being served in either way. In 1985 in Saskatchewan,
an opposition member was lured out of the chamber under false
pretences and served with a subpoena. The House was so enraged
that the person serving the subpoena withdrew it just as he was
about to be called to the bar of the House. In British Columbia
we would follow the principles outlined in Maingot, 2nd ed.
13. Can the legislature suspend or expel
one of its members?
Yes. See British Columbia's Standing Orders
19 and 20. See also: The Power to Expel by Gwenn Ronyk
(now the Clerk of the Legislative Assembly of Saskatchewan) in
The Table, 1985, pp 43-50.
14. Has the legislature the power to
fine? Has it ever used the power?
Members may be subject to a daily $300 fine
for time missed from the House resulting from a suspension under
Standing Orders 19 and 20. This power has been used.
15. Do you have provision for citizen's
right of reply to what is said in Parliament? If so how is it
No, although in the past members of the opposition
have suggested the idea of a forum for citizens to regularly address
the House by way of a statement or question, at the Bar to the
House. This concept is not now being seriously considered here.
16. Do you have provisions in Standing
Orders or elsewhere for the protection of witnesses who appear
before parliamentary committees?
We would follow the jurisprudence outlined in
Maingot's book, 2nd ed and the conventions held elsewhere in Canada,
Westminster, Australia and New Zealand. Members in British Columbia
take very seriously the tampering with witnesses to parliamentary
committees and have issued stern warnings to persons or organizations
suspected of intimidating witnesses.
17. Are such witnesses protected against
intimidation in respect of their evidence by statute? Or is this
treated as a contempt of the legislature and punished by it?
Although there is no specific British Columbia
statute protecting the rights of a witness to a parliamentary
committee the Legislative Assembly takes the view outlined in
No 16 above and follows the jurisprudence outlined, as well, in
Maingot, 2nd ed.
18. Is perjury before the legislature
or a committee of the legislature punished by the Courts, or is
it punished by the legislature as a contempt?
The jurisdiction to punish for perjury, in the
stated instance, would be available to both the Courts and the
Legislature. Please see, Parliamentary Privilege in Canada,
2nd edition, 148-149: Maingot.
19. Is there statutory provision to
give absolute privilege to papers published under the authority
of the legislature?
Please see chaper 8The Use of Parliamentary
Matters as Evidence in Court: Parliamentary Privilege in Canada,
2nd edition, Maingot, 125-149.
20. Do you have a "freedom of information
Act"? Does it apply to the legislature in any respect?
Yescopy of the act in question enclosed
by separate cover. It does not apply to the Legislative Assembly
of British Columbia although the Freedom of Information and Protection
of Privacy Commissioner, a statutory office of the Legislative
Assembly, has recommended that the Act should apply to the Assembly.
15 April 1998