Like others, I have no information on why the Clerk and Sergeant-at-Arms of the British Columbia Legislature are being investigated and what possible consequences for all involved may or may not follow. I too have been watching events unfold and following the comments made by journalists, commentators, and lawyers. In doing so, it has become apparent that the unique nature of the legislature is not fully understood and this has lead to somewhat incorrect statements and concerns that if left unnoted can lead to further misunderstandings and could cause legal and constitutional difficulties in the event that legal action is warranted following the investigations. This post is intended to point out the legal and constitutional framework in which the investigation is proceeding
It is paramount that it is understood that the legislature is not the government. It is independent of the government.
From this important constitutional foundational principle it follows that the decisions taken are those of the Legislative Assembly not the government. The choice to investigate should not be taken by the government, nor should its advice necessarily be followed by the Assembly. Until the police were advised and information was provided to them that allowed them to further the investigation, the internal decisions were those of the Assembly (or Speaker acting on behalf of the Assembly). It was not a government investigation, it is not now a government investigation, it is now a police investigation combined with an investigation internal to the legislative branch. At no time is the investigation that of the government, nor can the government direct or influence either investigation. To do so would be to interfere with the independence of the Assembly. The government can no more interfere in the internal investigation of the Assembly, or the police investigation of the Assembly’s officers, than it could an investigation of those ofa company, business, or individual.
The second point is that the Clerk and Sergeant-at-Arms are not public servants, nor are they government employees. Also, because of the constitutional nature of their positions, they are not employees of the Assembly in the same way that others such a s human resource officers, cleaning staff, and administrative staff are. They are servants of the Legislative Assembly itself. In the case of the Clerk, his responsibilities are to keep the business of the legislature flowing and to ensure the records required by the constitution are kept. By nature of internal governance rules, established by the Members he has been given responsibility to manage, like a CEO, the financial and administrative affairs of the legislature separate from those of the government. The Sergeant-at-Arms carries out a number of functions, including providing security and enforcing the privileges that the Assembly needs to carry out its proceedings free from physical, and more recently electronic, interference. The constitutional functions of managing the business and security of the Assembly are undertaken at the behest of the Members of the Legislative Assembly and no-one else. Since these functions are carried out on behalf of the Members, it was necessary that the “suspensions” of the two officers with pay pending investigation be made with the approval of the Members of the Legislative Assembly. They either had to give their approval directly, or indirectly by directing the Speaker to take the necessary decisions on their behalf. In either case the Members had to make a collective decision on the matter. Either there would be a direct motion, on little information, to suspend (which they did), or they would have needed to direct the Speaker to do so. There was no way, given the constitutional position of the Clerk and the Sergeant-at-Arms, that the suspensions could have been taken without some involvement of the Legislative Assembly as a publicly accountable body. The process, in all cases, would necessarily be public. The implication is also that further steps, if any, or vindication will also likely need to involve the Legislative Assembly. Since it was a decision of the Assembly to suspend, the decision to “unsuspend”, either by disciplining or re-instating ,would need to be take by the legislature. The only outcome that would not require the Assembly re-visiting the issue would be resignations.
The decision to suspend someone with pay to allow an investigation is not unusual. This is to allow an investigation to proceed without those who are the subject of an investigation being present to influence “witnesses” or to interfere, destroy, or modify evidence. This protects those who might provide evidence against “their superiors”, protects records, and also protects those who are the subject of the investigation from possible allegations down the road that they tampered with “witnesses” or evidence. What will be important is that the subjects of the investigation be given a full opportunity to address the preliminary findings before any final decisions are made.
Investigations within a Legislative Assembly are not easy. They must be carried out in a manner that does not interfere with the work of the Assembly or its Members. They must also be conducted in a manner that protects the privileges of Members and the Assembly and that allows the constitutional business of the Assembly and its Members to be conducted without interference. It will be necessary that the investigation be managed in such a way as to not interfere with privilege. This should not be considered an obstruction of the investigation, but rather a possible limit on its means or scope until the issue of accessibility or privilege is resolved. In the same way that investigations cannot infringe constitutionally protected Charter rights, they cannot infringe the constitutionally protected privileges of the Assembly and its Members. These two principles must be carefully balanced.
It is understandable that various Members are anxious because they do not have “all the facts”. As a result a means will need to be found to either fully empower Speaker to proceed without further instructions or at least keep the leadership of the various parties (or their representatives) informed of what is occurring. This will allow the leadership of the parties to decide whether they will advise their caucuses to continue to support the continuing investigation. At the same time, those informed will have the responsibility of keeping the matter from becoming public if the disclosure of the information would interfere with the investigation. They will also need to be involved in deciding what and when information is disclosed. Since the Legislative Assembly is independent of the government, and is composed of all Members, the investigation should proceed in a manner that involves the leadership of all the parties. In the end it is the Assembly of all Members that will decide the future status of those being investigated (but not the issue of criminal or other charges). A means must therefore be found to proceed “collectively” and in a manner that is responsible and not political.
The independence and proper functioning of the Legislature depends on it.