Independence of Legislatures Requires Them to Take Responsibility for Their Administration

As one who follows the work of Parliament and Legislatures, I read with interest the Report of Speaker Plecas to the Legislative Assembly Management Committee Concerning Allegations of Misconduct by Senior Officials of the British Columbia Legislative Assembly.  The Report outlines numerous allegations of misspending of funds by the Clerk and Sergeant-at-Arms relating to travel, benefits and personal expenses made using funds of the Legislative Assembly.   On reading the report one can easily focus on the particulars and whether the expenditures were appropriate, and if inappropriate what should happen to the individuals in question.  It would be easy to end there.  But what struck me was the question of how the Legislative Assembly got to this point. It finally struck me at page 64 of the 73 page report –“Moreover, it appears historically to have been the case that LAMC [Legislative Management Committee] rarely met; as early as then-Auditor General John Doyle’s report in 2012, strengthening LAMC oversight was identified as an area of urgent requirement in the interests of good governance.”

 

This single line is quite revealing.  It would appear that the Legislative Assembly let slide its responsibility to oversee the management of the administration of the Assembly.  There is little indication that the Assembly had established and maintained the necessary oversight required of the Administration.  This lead those who were at the apex of the management structure to be able to operate without accountability.  Such a failure by the Assembly allowed those responsible for the administration to either put in place deficient policies, policies that benefited certain higher-level officials or to deviate from the policies without repercussion since they were not held accountable for their personal failure to adhere to the policies.

 

It is not difficult to understand how this could have occurred.  Members of the Assembly are focused on other matters.  They see themselves as having been elected to legislate, govern or hold the government to account, and represent their constituents’ interests.  They have little or no understanding of, nor have they likely given any thought to, their collective responsibility for oversight of the management of the Administration that supports them in their legislative functions.  They trust others to take care of the management of the “behind the scenes” support that the Administration plays.  And, if the situation has gone on for a number of years, because of changed membership and inertia, it just becomes the way things are and “out of sight, out of mind”.  Clearly, it is assumed, the issue is someone else’s business.

 

But it is not.

 

One of the hallmarks of the Canadian constitutional system of government is that the legislature is independent of the Crown (government) and the courts.  For the purpose of administration, the independence from the Crown is most important.  Legislative Assemblies and their Administrations are not government departments.  Administration employees are not government employees, nor do government policies and accountability frameworks apply.  The administration is not, and cannot be, accountable or answerable to a Minister of the Crown, since the administration must be absolutely loyal to the Legislature which has a constitutional responsibility to hold the government to account.  Nor is the government responsible for the failure or shortcomings of the Legislature’s Administration.  Legislative Assemblies must establish their own Administration, including an administrative framework, accountability framework, along with their own financial, information, security and human resources policies.   They may incorporate some government policies, but in doing so the policy becomes a policy of the legislature, not the legislature becoming part of the government. In doing so, the Assembly will recognize that the role of the legislature is different from that of the government and business, and that there may be unique needs and some unique policies.  But this is not an excuse for lax accountability.   In the end, the Legislative Assembly is responsible and accountable for the administration.  Members cannot distance themselves from the failures of a system they are responsible for.

 

The carrying out of the responsibility for its administration by the Legislative Assembly takes some care and attention.  It requires a fair degree of trust accompanied by appropriate accountability.  A Legislative Assembly is composed of its members and can only act collectively.  Its Members are elected, and each election results in a new and distinct Assembly.   As a body composed of a large number of members and which changes each election, there is a need for a stable, continuing supporting structure.  This is usually found in the permanent officers and the Administration that supports the Assembly.  In order to function and provide for the necessary continuity, the legislature has two options.  It can rely on the Speaker as a servant of the Legislative Assembly to single-handedly carry out management responsibility in addition to all of his or her constitutional functions, or it can assume its collective responsibility by establishing a committee to act on its behalf.  In Canada all jurisdictions, usually by statute, or through its Standing Orders, Legislative assemblies create an administrative framework with a body (often styled as a Committee or Board) composed of Members of the Assembly, to be responsible for the administration.  This body will have the authority of the Assembly to put in place the necessary internal governance and accountability structures for the Administration to function and to be accountable to the Assembly as a whole (again usually through this body).  In most jurisdictions the Committee is composed of members representing all parties and is chaired by the Speaker.  The Committee thereby manifests the authority and responsibility of the entire Assembly.  It also provides for continuity if the government changes since the members of the Committee represent their caucus regardless of whether formerly in the government or the opposition.  It can also provide a degree of non-partisanship in its operations.

 

Because of the complexity of the Administration, and to avoid the Committee becoming entangled in the minutiae of the day to day decision making, Committees will normally authorize the Clerk, as chief administrator, or a Management group with the Clerk as the Chair, to carry out the necessary day-to-day operations of the Administration, including the establishment of the necessary financial, contracting, expenses and procurement policies.  In most cases the Committee will either approve the policies, or at least the policy principles to establish appropriate good governance practices.  They will also retain the ability to give direction or modify the policies as they deem appropriate.  They often retain the sole discretion to allow for exceptions to policies, particularly when the exception involves members or those who report to it.  The policy framework will allow the Committee the standards against which to hold those responsible for implementing the policies accountable.  In addition, the Committee should expect to have a meaningful reporting relationship with the Clerk (or Chief Administrative Officer) on a regular basis.  Finally, the legislation, or the Committee, will need to establish an independent audit process that reports to the Committee, and through the Committee the House.   Timely reporting and auditing insure probity and accountability.

 

The failure of a Legislature to establish and maintain the operations of such a Committee results in the Assembly failing to carry out its “management” function.  It does not result in the ability to claim that they are not responsible since they did nothing.  The responsibility is inherent in the constitution.  What they may be able to take some solace in is the fact that all members, regardless of party or status are equally responsible.  Both the responsibility and any fault is collective.

 

The recent events in British Columbia demonstrate the potential consequences of neglect.  At the same time, it allows the British Columbia Legislative Assembly the ability to conduct a review and to put in place the necessary governance framework that will allow it to fulfill its responsibilities.  It should also act as a wake-up call to all legislative assemblies, that now have a reason to review, reflect and renew their own relationships to their Administrations.

 

Leave a Reply

Your email address will not be published. Required fields are marked *