Chapter 3 — Members

37

3.1Introduction

The Legislative Assembly consists of the Members who are elected to represent British Columbians across the province, in accordance with the provincial Constitution Act (R.S.B.C. 1996, c. 66, s. 18). Members are central to the exercise of the functions of parliamentary democracy and the work of the Assembly. This chapter addresses the various roles that Members of the Legislative Assembly fulfill and outlines Members’ obligations to attend the sittings of the Legislative Assembly, to abstain from a matter in which they have a direct pecuniary interest, and to publicly disclose any conflicts of interest.

Members have obligations to attend the sittings of the Legislative Assembly, to abstain from a matter in which they have a direct pecuniary interest, and to publicly disclose any conflicts of interest.

3.2Role of Members

Members of the Legislative Assembly, like those in other jurisdictions, have parliamentary, representative, and caucus roles and responsibilities.

Their work includes parliamentary functions of enacting laws, authorizing public expenditures and taxes, and exercising parliamentary oversight of the government. They also represent and assist constituents. Members may perform this work in the context of their obligations as members of political party caucuses or as Independent Members (see Erskine May, 25th ed., §§4.5-4.9, pp. 47-50; House of Commons Procedure and Practice, 3rd ed., pp. 216-7).

Members are central to the functions of parliamentary democracy and the work of the Legislative Assembly. Members have parliamentary, representative and caucus roles and responsibilities.

38

3.3In the Chamber

Government and opposition Members differ in the ways they carry out certain parliamentary functions. The role of the government and the opposition is outlined in greater detail in Chapter 1 (Legislative Assembly Overview). To be sustained in office, a government requires the support of a majority of Members. In a minority Parliament, opposition Members may align with government Members on matters of confidence — to provide a majority on votes on such matters. The Leader and Members of the Official Opposition Caucus fill an important role as they “direct criticism of the Government’s policy and administration and…outline alternative policies” (Erskine May, 25th ed., §4.6, pp. 47-8). Leaders of other officially recognized caucuses, as well as Members more generally, also have opportunities in Legislative Assembly proceedings to outline their positions on public policies, including government policy.

In terms of the accountability and oversight of government, the Premier and Ministers are responsible to the Legislative Assembly for government policies, actions, decisions and program administration.

The law-making role of the Premier and Ministers includes sponsoring and collectively seeking to advance legislation to implement government policies and to seek the Assembly’s authorization of public expenditures and taxes. For other Members, the law-making and financial roles involve the examination of government bills and spending and tax measures as well as sponsoring and examining Private Members’ bills and private bills.

In terms of the accountability and oversight of the government, the Premier and Ministers, as the Executive Council, are responsible to the Legislative Assembly for government policies, actions, decisions and program administration. Government and opposition Members who are not part of the Executive Council participate in Legislative Assembly processes to hold the Premier and Ministers to account.

Members review the government’s proposals for public expenditures and taxes, and such authorizations are made collectively by the Legislative Assembly. The Assembly later scrutinizes government spending as part of the province’s financial cycle, outlined in greater detail in Chapter 12 (Financial Procedures).

These core legislative functions that Members collectively perform are outlined in greater detail in Chapter 1 (Legislative Assembly Overview).

3.4Representation

All Members have a representative role on behalf of their constituents. Members regularly meet with constituents and attend community meetings and events. Constituency 39 offices provide assistance to people who have questions or concerns about provincial government programs, policies and benefits. Members may contact Ministers or ministry officials about policy or program matters affecting individual citizens, give voice to the diverse views of their constituents by presenting petitions in the Legislative Assembly, or, in the case of Private Members, make two-minute Statements during Routine Business as well as Private Members’ Statements during Private Members’ Time about issues of importance to their constituencies or the province.

3.5Additional Parliamentary and Caucus Roles

Members may have additional parliamentary and caucus responsibilities which impact their work in the Legislative Assembly. This includes the Premier, members of the Executive Council and Parliamentary Secretaries; the Leader of the Official Opposition and other recognized political party leaders; House Leaders; Caucus Whips; Caucus Chairs; and parliamentary committee Chairs and Deputy Chairs. Other government, opposition and Independent Members may have further parliamentary and caucus roles assigned by the Legislative Assembly or their respective caucuses.

3.6Service on Parliamentary Committees

All-party parliamentary committees undertake inquiries on behalf of the Legislative Assembly. In recent years, Members serving on parliamentary committees have investigated ride-hailing, local elections expense limits, and the province’s health care system. Committees often consult with the public, and sometimes travel to hear from British Columbians throughout the province.

3.7Participation in Interparliamentary Organizations

The Legislative Assembly participates in interparliamentary organizations which provide professional development forums for Members and Assembly officials on governance and good practices in parliamentary jurisdictions. The Assembly forms the British Columbia Branch of the Canadian Region of the Commonwealth Parliamentary Association, which was founded in 1911 to foster consultation and exchanges among Canadian and other Commonwealth parliamentarians. The Speaker represents the Assembly in relations with interparliamentary organizations and serves as the President of the British Columbia Branch of the Commonwealth Parliamentary Association, while the Clerk of the Legislative Assembly serves as Secretary. Members attend regional, national and international conferences arranged by the Commonwealth Parliamentary Association and other organizations which relate to their role and work as Members.

40

3.8Caucus Responsibilities

Most Members are elected with a formal affiliation to a political party; some are elected as Independent Members with no political party affiliation. Members’ caucus responsibilities typically include attending political party caucus meetings and caucus committee meetings as well as participating in political activities.

3.9Legislative and Constituency Offices

As the parliamentary and representative roles of Members evolved, their positions became a full-time, year-round responsibility in the 1970s, and Members were consequently provided with resources for ongoing legislative and constituency offices.

The Legislative Assembly Management Committee Act (R.S.B.C. 1996, c. 258, s. 3) authorizes the Committee to “deal with matters affecting the provision of facilities and services…for the effective functioning” of the Assembly and to deal with payments or services for “constituency offices, including payments or services for staffing, maintaining the offices, communication expenses and travel expenses.”

The Committee approves funding for Members’ legislative offices, including equipment, services and supplies to support their work at the Parliament Buildings. Members receive an annual budget to cover operating and staffing costs in constituency offices. This annual budget is comprised of start-up funding available after an election or by-election, a constituency office allowance and an in-constituency travel allowance. Additional detail on legislative and constituency offices is available on the Members’ Guide to Policy and Resources website.

3.10Election of Members of the Legislative Assembly

In the first provincial general election in 1871, 25 Members were elected by less than 3,000 registered voters who qualified by being male, British subjects who met certain property and residency requirements. Since then, and as the provincial population expanded, the number of Members increased to 87 in 2017. The demographic representation of Members has also expanded, with 34 women, or 39 percent of Members, and four Indigenous Members, two of whom are women, as of December 1, 2019. The composition of Members continues to evolve in representing the breadth of the rich diversity of the people of our province.

The provincial Election Act (R.S.B.C. 1996, c. 106) sets rules for provincial electoral processes, while the Electoral Districts Act (S.B.C. 2015, c. 39) divides the province into electoral districts, also called constituencies or ridings. There are currently 87 electoral districts, each represented by one Member. A commission reviews electoral districts after every second general election under the Electoral Boundaries Commission Act (R.S.B.C. 1996, c. 107) to update riding boundaries and affirm fair representation.

41

The Canadian Charter of Rights and Freedoms in the Constitution Act, 1982 provides that “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein” (s. 3).

3.10.1Eligibility to Stand for Election as a Member of the Legislative Assembly

Under the provincial Constitution Act, Members are “elected in the manner provided for by the [provincial] Election Act” (s. 18(2)). The provincial Election Act (s. 52(1)) states:

42

The provincial Election Act (s. 52) further provides that a candidate cannot be nominated if they have been disqualified from voting, being nominated, being elected or holding office as a Member.

Other statutory provisions have implications for membership in the Legislative Assembly. The provincial Constitution Act (s. 28) provides that “A judge of the Court of Appeal or the Supreme Court may not be elected a member of the Legislative Assembly while he or she holds the office of judge.” There is a further limitation outlined in section 32(b) of the Act, which prevents a sitting Member of the House of Commons of Canada from being nominated as a candidate for election to the Legislative Assembly.

3.11Oath of Allegiance

The requirement for Members to take a legal oath began in the 16th century in the House of Commons at Westminster during the reign of Queen Elizabeth I, at a time of great political and religious unrest. The legal requirement for Members’ oaths has continued in Canadian jurisdictions as provided in the Constitution Act, 1867 (previously known as the British North America Act, 1867) and the provincial Constitution Act.

Members may not take their seat in the Chamber, engage in debates or vote until they have taken and subscribed to the required oath or made a solemn affirmation.

The Constitution Act, 1867 (s. 128, Fifth Schedule) provides that:

The provincial Constitution Act (s. 24(1)) reiterates the above requirement as follows:

43

As an alternative to swearing the oath (which involves holding a holy book of faith), Members may make a solemn affirmation or declaration, as provided for by the provincial Constitution Act (s. 24(2)).

While Members are considered “Members” when they are elected on general voting day under the Members’ Remuneration and Pensions Act (R.S.B.C. 1996, c. 257, s. 9), they cannot take their place in the Chamber, engage in debates or vote until they have taken the oath under the provincial Constitution Act.

The Legislative Assembly’s oath process reflects the province’s constitutional heritage. The oath does not involve the Sovereign in a personal capacity but, rather, expresses the allegiance of each Member to the institutions and traditions represented by the Sovereign, including parliamentary democracy (see House of Commons Procedure and Practice, 3rd ed., p. 202).

Following a provincial general election, and prior to the opening of a new Parliament, Members typically take part in a special ceremony in the Chamber. The Clerk of the Legislative Assembly, who is authorized by commission of the Lieutenant Governor, invites Members to swear the oath or make a solemn affirmation or declaration, and to sign the Parliamentary Roll in witness to having taken the oath. Members are then presented with a certificate of election and a Member’s pin featuring the Legislative Assembly’s symbol of authority, the Mace.

Members elected in a by-election are sworn in pursuant to arrangements made in coordination with the Member and the Office of the Clerk prior to taking their seat in the Assembly. On those occasions, following the reading by the Clerk of the Legislative Assembly of the certificate of election from the Chief Electoral Officer, the Attorney General moves a motion that the result of the by-election be entered in the Legislative Assembly’s Journals. The new Member is then escorted by the leader of their caucus from the Bar of the House to the Speaker’s chair to be formally welcomed by the Speaker, and then takes their seat.

3.12Members’ Orientation Services

Members’ orientation services provide new and departing Members with transition services after a provincial general election. The program includes in-depth briefings for Members and their staff on administrative matters — including financial procedures, office facilities and information technology support. Briefings for Members also cover the roles and responsibilities of Members, parliamentary procedures, legislative and financial processes, and the work of parliamentary committees. Constituency assistant seminars offered for Members’ constituency office staff provide comprehensive information on office administration, expense policies and public disclosure requirements.

Recent orientation programs highlight the use of new technologies to assist Members, including a Members’ Guide to Policy and Resources website with detailed information on Legislative Assembly management and services. This publicly accessible site is a 44 comprehensive and up-to-date resource for financial and administrative policies which apply to Members and their legislative and constituency office staff. To implement a 2016 decision of the Legislative Assembly Management Committee, online centralized expense processing, accounting and reporting for Members’ constituency offices was established.

Members also have ongoing opportunities to request or receive additional Legislative Assembly or procedural and administrative briefings from the Clerks at the Table and other senior management.

A Transition Guide for Members of the Legislative Assembly is developed near the end of every Parliament to assist non-returning Members with the election transition period, supplemented by briefings by Assembly staff on financial and human resources planning, office closure, staff pay and benefits, and records storage.

3.13Attendance

Standing Order 8 recognizes the importance of Members attending the sittings of the Legislative Assembly. Members’ responsibilities are extremely varied and may sometimes take them away from the Parliament Buildings to deal with other parliamentary, official or constituency commitments. The Members’ Remuneration and Pensions Act (s. 12) acknowledges that a Member may have to be absent from sittings for public or official business, due to illness, or for up to ten days of personal leave allowed per Session (see House of Commons Procedure and Practice, 3rd ed., p. 217; Erskine May, 25th ed., §4.3, p. 46).

In the context of Standing Order 8, Members are precluded from signaling the absence of Members in the Legislative Assembly during parliamentary proceedings.

On many occasions, Members have risen on a point of order or question of privilege, bringing to the Speaker’s attention the absence of one or more Members, citing Standing Order 8. On each occasion, the Speaker has declined to find a valid point of order or question of privilege, and has indicated that it is improper to make adverse comments on the absence of another Member. Absence and its relationship to matters of parliamentary privilege was considered in a decision of Speaker Smith, who noted (B.C. Journals, August 24, 1977, p. 261):

45

3.13.1Statutory Deduction for Non-Attendance

The Members’ Remuneration and Pensions Act (s. 10) requires a deduction for non-attendance from a Member’s basic compensation “for every day beyond 10 in any one session on which the member is absent from a sitting of the Legislative Assembly, or a committee, if the Legislative Assembly sits on that day.”

A deduction does not apply in the event of “sickness or another reason approved by the Speaker,” if the Member is a member of the Executive Council carrying out “official government business,” or in some other official capacity (e.g., for the Legislative Assembly, on behalf of the Executive Council, or as a Parliamentary Secretary). Under section 11 of the Members’ Remuneration and Pensions Act, the Legislative Assembly may, “by resolution, direct that partial or full basic compensation and salary be paid to a member, or in the event of the death of a member, to the member’s estate, without deduction under section 10 because of the nonattendance of the member.”

In February 2000, the Legislative Assembly Management Committee agreed that the Speaker would develop a “bereavement, sick, maternity and family leave policy for Members.” Later that year, an amendment to section 10 of the Members’ Remuneration and Pensions Act was adopted, which extended acceptable absences during a Session to include “another reason approved by the Speaker.” This has been applied by the Speaker to include parental leave.

In 1980, Speaker Schroeder ruled that “according to an interpretation of long standing,” presence in the Legislative Precinct has been construed as attending the service of the Assembly and for the purposes of section 10(1) and (2) of the Members’ Remuneration and Pensions Act (B.C. Journals, December 11, 1980, p. 19).

Section 10 of the Members’ Remuneration and Pensions Act authorizes the Legislative Assembly Management Committee to set the deduction rate for non-attendance. A 1997 decision of the Committee increased the daily deduction from $250 to $300, based on a recommendation from a 1997 Citizens’ Panel. This rate of daily deduction remains in place today.

The text of section 10 of the Members’ Remuneration and Pensions Act is provided below.

46

3.13.2Statutory Attendance Declaration Form

Section 12 of the Members’ Remuneration and Pension Act requires that Members file with the Clerk of the Legislative Assembly twice a year, in January and in July, the prescribed attendance declaration form.

Section 12(2) of the Act provides that, where a declaration is not filed or where a declaration is filed that a deduction is required, the Clerk of the Legislative Assembly must report to the Minister of Finance, who must, respectively, withhold payment to the Member of any basic compensation or salary until the declaration is filed, or withhold or adjust payments to, or claim a refund from, the Member of any basic compensation or salary. Under modernized accounting practices, Members’ remuneration is administered by the Legislative Assembly, and not by the government. Therefore, while the statutory responsibility of the Clerk of the Legislative Assembly to report to the Minister of Finance in such cases remains intact, any deductions necessitated under the provisions of the Act would be administered by the Legislative Assembly.

3.14Vacancies

Most Members serve from their election until the next provincial general election. In rare circumstances, this may not be possible. This may include resignation, death, acceptance of a government office or employment involving compensation, becoming a Member of the House of Commons of Canada, non-attendance for a whole Session, expulsion from the Legislative Assembly or conviction of a criminal offence that can only be prosecuted by way of an indictment. The considerations around those circumstances are outlined in this section.

47

The Transition Guide for Members of the Legislative Assembly, available on the Members’ Guide to Policy and Resources website, provides information on administrative issues for Members resigning before the next provincial general election.

3.14.1Resignation

For professional or personal reasons, a Member may decide to resign their seat. Under the provincial Constitution Act (s. 33), the following process applies to resignation:

3.14.2Death

In the event of a Member’s death, another Member may rise in the Chamber and advise the Legislative Assembly of the death, or two Members may so inform the Speaker in writing, after which the Speaker must advise the Chief Electoral Officer. Section 35 of the provincial Constitution Act sets out the process in the case of a Member’s death:

48

3.14.3Becoming a Member of the House of Commons of Canada

An individual may not serve as a Member of both a provincial Legislative Assembly and the House of Commons of Canada under federal statute (see Parliament of Canada Act, R.S.C. 1985, c. P-1, ss. 22, 23). Moreover, federal statute prevents a Member of a provincial Legislative Assembly from being a candidate for election to the House of Commons (see Canada Elections Act, S.C. 2000, c. 9, s. 65). As a result, a Member of the Legislative Assembly who wishes to become a candidate for membership in the Canadian House of Commons must resign their seat in the Assembly before becoming a candidate for membership in the House of Commons.

Section 32 of the provincial Constitution Act specifically disqualifies a Member of the House of Commons of Canada from serving as a Member of the Legislative Assembly:

3.14.4Forfeiture of a Member’s Seat

Section 34 of the provincial Constitution Act sets out circumstances for the forfeiture of a Member’s seat.

49

As dual citizenship is recognized in Canada, an individual who is both a Canadian citizen and a citizen of another country may be a Member of the Legislative Assembly if citizenship is already established at the time of their election. However, if citizenship is obtained during the Member’s tenure in office, this may result in a forfeiture of the Member’s seat, pursuant to sections 34(b) and (c) of the provincial Constitution Act.

3.15Pecuniary Interest

The principle of integrity for public office holders in carrying out their parliamentary and public duties is fundamental to parliamentary democracy.

House of Commons Procedure and Practice summarizes the ethical context for parliamentarians as follows: “On being elected, Members of the House of Commons become trustees of public confidence. Members must place the public’s interests over their private interests and derive no personal benefit or gain from their decisions” (3rd ed., p. 222).

Similarly, the U.K. House of Commons Code of Conduct for Members of Parliament indicates, at section 8:

Statutory and procedural provisions require a high standard for parliamentarians in pecuniary matters. Like all Canadians, federal and provincial parliamentarians are subject to the general provisions in the Criminal Code.

Many jurisdictions have statutory and procedural provisions requiring the disclosure of pecuniary interests. In 1990, the Legislative Assembly adopted the Members’ Conflict of Interest Act (R.S.B.C. 1996, c. 287), which requires a Member who has reasonable grounds to believe that they have a conflict of interest in a matter before the Legislative Assembly or one of its committees to disclose the conflict and withdraw from voting or participating in the matter under consideration. The Act is discussed in more detail later in this chapter.

Statutory and procedural provisions require a high standard for parliamentarians in pecuniary matters.

The Legislative Assembly also precludes Members from voting on any matter in which they have a direct pecuniary interest. This requirement is set out in Standing Order 18, which is unchanged from the Assembly’s earliest days.

50

The questions which may arise under Standing Order 18 are as follows:

1. What is a direct pecuniary interest?

2. Who decides in each case: the Member whose vote is challenged, the Assembly or the Speaker?

3. May a Member who is found not entitled to vote:

a. Speak to the debate?

b. Move amendments?

4. How is objection taken?

a. In the Legislative Assembly.

b. In a parliamentary committee.

3.15.1Question 1: What is a Direct Pecuniary Interest?

The principle of not voting on a matter of direct pecuniary interest is derived from U.K. practice (see House of Commons Procedure and Practice, 3rd ed., p. 576). Direct pecuniary interest was defined in a 1932 decision of Speaker FitzRoy of the U.K. House of Commons. The Speaker reminded Members that they individually must be the judges themselves on the question of personal interest and gave the following guidelines: “The interest of a member of a general or remote character on any question before the House would not operate as a disqualification.” Citing an earlier ruling that an “interest of a member of a general or remote character on any question before the House would not operate as a disqualification,” the Speaker further noted (House of Commons (U.K.) Hansard, February 3, 1932, vol. 261, c. 193):

A similar definition is enunciated in House of Commons Procedure and Practice:

51

In the B.C. context, Speaker Smith ruled on a point of order that votes of certain Members on the motion for second reading of the Succession Duty Repeal Act should be disallowed was “not well founded.” He explained that the definition of direct pecuniary interest “is abundantly clear from the authorities and the numerous examples…” (B.C. Journals, March 30, 1977, p. 118). In making this decision, Speaker Smith noted the following text from a commentary on the rules of the House of Commons of Canada:

Furthermore, Speaker Richmond also emphasized that Standing Order 18 dealt with direct personal benefits, and that a Member’s personal interest could not be challenged on questions of broad public policy. In this instance, it was alleged that the Minister of Forests would have derived a financial benefit from the enactment of the Forestry Revitalization Act. The Speaker concluded that numerous decisions indicate that “matters of state policy or involving salaries and benefits of Members are exempt from the rule [and] that where a matter of general or public policy is at the heart of a measure, personal and pecuniary interest is overridden” (B.C. Journals, March 31, 2003, pp. 58-9).

Similarly, Speaker Plecas addressed a point of order about voting on the Constitution Amendment Act, 2017, including provisions to amend section 1 with respect to the number of Members required for a recognized caucus in the Legislative Assembly, which would provide certain Members with additional remuneration. Citing previous rulings that a direct pecuniary interest must be immediate and personal, the Speaker stated that the additional compensation for Members was not a personal benefit but, rather, a benefit connected to specific positions under the Members’ Remuneration and Pensions Act. Speaker Plecas added that Members should not be prevented from voting on rules that directly or indirectly establish their entitlement to compensation, even if this had the effect of providing them with pecuniary benefits, as “these decisions are expressions of the basic right held by parliaments that a House must be allowed to govern itself” (B.C. Journals, October 18, 2017, p. 33).

The principle of Standing Order 18 also applies in proceedings of parliamentary committees (see Erskine May, 25th ed., §5.13, pp. 85-6; §38.15, p. 959).

52

3.15.2Question 2: Who Decides?

In B.C. practice, the Speaker (or the Chair) decides the merit of a point of order raised under Standing Order 18 (see B.C. Journals, March 31, 2003, pp. 58-9; July 27, 1979, p. 103; March 30, 1977, p. 118).

This is consistent with numerous decisions by Speakers in the U.K. House of Commons overruling objections to Members voting or deciding that a motion to disallow a vote “which came obviously within the exemption from the application of the rule” would be out of order (Erskine May, 24th ed., p. 84).

Any determination made by the Speaker under Standing Order 18 would not preclude the application of the Members’ Conflict of Interest Act or the involvement of the Conflict of Interest Commissioner in fulfilling their statutory obligations under that Act, further outlined in section 3.16 of this chapter.

3.15.3Question 3: May the Member Speak?

A Member disqualified from voting under Standing Order 18 may speak in the debate and may propose amendments. While B.C. practice indicates that a Member who has been disqualified from voting under Standing Order 18 is not prohibited from speaking in the debate or proposing amendments, section 10 of the Members’ Conflict of Interest Act prohibits the Member from “participating in the consideration of the matter” (see decision of Speaker Barnes, B.C. Journals, June 10, 1994, p. 139).

B.C. practice is supported by the approach of the U.K. House of Commons, where Members who may be disqualified from voting may speak to a matter or propose procedural motions or amendments. With respect to procedural motions (e.g., closure), the rationale would seem to be that such motions are a matter of procedure and do not relate to the substance of the motion on which the procedural motion is being sought (see Erskine May, 25th ed., §5.19, p. 88).

3.15.4Question 4: How Is Objection Taken?

House of Commons Procedure and Practice states:

Based on the practice of the U.K. House of Commons, a motion may be made to object to the vote of a Member who has a direct financial interest in a question. An objection to a vote on the grounds of direct pecuniary interest can be raised only on a substantive motion, of which notice must be given, that the vote given be disallowed, and must be 53 made as soon as the division is completed. It cannot be brought forward as a point of order. In a Committee of the Whole, a determination is made by the Committee upon a motion, and the matter is not to be brought before the House. The Member whose vote is being questioned in the Legislative Assembly or a Committee of the Whole should withdraw immediately after being heard, before the question founded on the objection has been proposed (see Erskine May, 25th ed., §5.17, p. 87).

3.15.5Appointment to a Government Office or Other Public Employment Involving Compensation

Members are precluded from appointment to a provincial public office or employment which involves compensation, as outlined in sections 25 and 26 of the provincial Constitution Act. This does not include appointment as a member of the Executive Council, a Parliamentary Secretary or other authorized parliamentary positions; appointment as a member of a provincial board, council, commission, body or other entity created or established by an act, the Executive Council or the Legislative Assembly; or appointment on behalf of the Legislative Assembly.

3.16Members’ Conflict of Interest Act (R.S.B.C. 1996, c. 287)

In 1990, the Legislative Assembly adopted the Members’ Conflict of Interest Act, which provides a statutory framework for dealing with conflicts of interest involving Members of the Legislative Assembly, and ensures that there is a transparent system of disclosure of Members’ financial interests. The Act ensures that Members do not use elected office to further their private interest.

The Conflict of Interest Commissioner is an independent, non-partisan statutory officer of the Legislative Assembly who is responsible for impartially administering the Act. The Commissioner has three primary roles: to provide confidential advice to Members about their obligations under the Act; to oversee the disclosure process, including meeting with each Member at least annually to review the disclosure of the Member’s financial interests; and to respond to allegations that a Member has contravened the Act and conduct an inquiry if warranted.

The Members’ Conflict of Interest Act provides a statutory framework for dealing with conflicts of interest involving Members of the Legislative Assembly and ensures that there is a transparent system of disclosure of Members’ financial interests.

A conflict of interest arises when a Member has the opportunity to further their private interest through the performance of their official duties. An apparent conflict of 54 interest arises when there is a reasonable perception that a Member’s ability to perform their official duties must have been or would be affected by their private interest. British Columbia remains the only jurisdiction in Canada to include apparent conflict of interest in its legislation. Members must not exercise an official power or perform an official duty or function if they have a conflict of interest or an apparent conflict of interest (section 3 of the Act). Members must not use insider information or use their office to seek to influence a decision to be made by another person to further their private interest. Members are encouraged to request the Commissioner’s confidential opinion if they have any questions about their obligations under the Act. Penalties for contravention of the Act are provided in section 22 of the Act.

A Member who has reasonable grounds to believe that they have a conflict of interest in a matter that is before the Legislative Assembly or the Executive Council (or a committee of either) must follow the recusal process set out in section 10 of the Act. That provision requires the Member to disclose the general nature of the conflict, and withdraw from the meeting without voting or participating in the consideration of the matter.

The definition of “private interest” in section 1 of the Act specifically excludes interests concerning a Member’s remuneration and benefits and interests that apply to the general public or affect a Member as one of a broad class of electors. In a decision, Speaker Barnes observed this statutory definition and affirmed that the Conflict of Interest Commissioner is responsible for the interpretation of the Act (B.C. Journals, July 10, 1995, p. 152):

Speaker Richmond commented on section 2 of the Act in a decision, and found that Standing Order 18 does not apply to matters of broad public policy such as the remuneration and benefits of Members. He stated: “Section 2, however, must be read in light of the definition of ‘Private Interest’ in section 1 of that Act, which clearly exempts ‘the remuneration and benefits of a member of the Legislative Assembly’ from the definition” (B.C. Journals, March 31, 2003, p. 58).

55

Section 10 of the Act serves a similar underlying purpose to Standing Order 18, but there are important differences. Unlike Standing Order 18, a “private interest” for the purposes of the Act is not limited to a pecuniary or economic interest, but extends to any real or tangible benefit that “inures to the personal benefit of the Member” (Blencoe Opinion, 1993). Another distinction, as noted in section 3.15.3 of this chapter, is that a Member disqualified from voting under Standing Order 18 may speak in the debate and may propose amendments; however, a Member who has disclosed a conflict of interest under section 10 of the Act must refrain from all participation in relation to the matter. Further, a breach of Standing Order 18 could result in the vote of the offending Member being disallowed, whereas a breach of section 10 of the Act could result in a penalty being imposed on the Member.

In the de Jong Opinion (1994, p. 8), former Conflict of Interest Commissioner Ted Hughes noted the distinction between the Act and Standing Order 18 and commented that Standing Orders have no bearing on the Commissioner’s opinions, which are based solely upon the provisions of the Act.

The possibility that a Member might be in compliance with Standing Order 18 but not have considered the effect of section 10 of the Act was noted in a decision of Speaker Barnes (B.C. Journals, June 10, 1994, p. 139):

3.17Offer of Money to Members and Bribery in Elections

The Standing Orders have long contained provisions with respect to offers of money to Members and bribery in elections. These provisions in the Standing Orders are seldom used, given modern-day statutory provisions and the resulting tendency for the adjudication of such matters to be left to the courts.

56

3.17.1Offer of Money and Bribery — Members

Standing Order 89 stems from a 1695 resolution of the House of Commons of England (see House of Commons (England) Journals, May 2, 1695, vol. 331). While Standing Order 89 describes the offence in somewhat conflicting terms as “a high crime and misdemeanour,” such offences would likely be dealt with as a contempt, which is further explained in Chapter 17 (Parliamentary Privilege). Erskine May notes: “Conduct not amounting to a direct attempt improperly to influence Members in the discharge of their duties but having a tendency to impair their independence in the future performance of their duty may be treated as a contempt” (25th ed., §15.16, p. 300).

Erskine May further explains:

The acceptance of a bribe by a Member is punishable under the Criminal Code (s. 119). It is also punishable by the Legislative Assembly under the Legislative Assembly Privilege Act (R.S.B.C. 1996, c. 259, s. 5(c)).

3.17.2Bribery in Elections

Bribery is further addressed in Standing Order 90, which confirms that the Legislative Assembly may punish “with utmost severity” an individual who accepts or offers a bribe or engages in “any other corrupt practices” relating to election as a Member.

57

While it remains more likely that legal action would be initiated for a contravention of the provincial Election Act, the Standing Order and the Legislative Assembly’s constitutional privileges nonetheless reflect the right of the Assembly to punish Members and non-Members. These powers are outlined in greater detail in Chapter 17 (Parliamentary Privilege).

In delivering a decision on a point of order raised by a Member relating to the provisions of Standing Order 90, Speaker Barnes noted (B.C. Journals, July 7, 1994, p. 186):

3.18Members’ Remuneration and Pensions Act (R.S.B.C. 1996, c. 257)

As elected representatives, Members receive remuneration in the form of an annual basic salary and other designated allowances pursuant to the Members’ Remuneration and Pensions Act. Members who hold ministerial or parliamentary office receive an additional salary that corresponds to a percentage of their basic compensation (if a Member holds two or more positions for which an additional salary is granted, the Member will receive only the higher amount).

Pursuant to a recommendation of the 2007 Independent Commission to Review MLA Compensation, Members’ basic compensation is adjusted on April 1 of each year in accordance with the B.C. Consumer Price Index.

58

3.19Members’ Disclosure Reports and Receipts

The Legislative Assembly is committed to accountability and transparency through the quarterly disclosure of information on Members’ compensation, travel expenses and constituency office expenses. Pursuant to decisions of the Legislative Assembly Management Committee, this information, including receipts for reimbursable travel expenses, is publicly available on the Assembly website.

Under the Legislative Assembly Management Committee Act (s. 3), the Committee may provide payments to Members to defray expenses in the performance of their duties, such as the Capital City Living Allowance, protocol expenses, service on parliamentary committees when the Legislative Assembly is not sitting, and travel and associated expenses. Detailed and up-to-date information is available on the Members’ Guide to Policy and Resources website.

Information on Members’ compensation, travel expenses and Capital City Living Allowance expenses is also disclosed on an annual basis in the Public Accounts of British Columbia.