Parliamentary Privilege First Report

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 Act.

  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 quorum, etc.

  4.   Do you have exclusive control over the buildings in which the legislature meets and over its staffing and administration?

  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 staff.

  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 Court?

  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 court—the 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 chastised—for 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 5.

  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 9—Privilege 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 implemented?

  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 8—The 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?

  Yes—copy 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

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Prepared 9 April 1999