Blocked MLA pay raise likely illegal, says UNB law prof.

New Brunswick MLAs won another unwanted pay raise over the weekend. 

Even though the Gallant government has vowed politicians will never see a penny of it, a number of experts say not paying the increase is likely illegal.

"There is no legislative authority...that allows the withholding of any portion of a salary owed to an MLA by the executive branch of government," wrote UNB law professor Nicole O'Byrne in an email to CBC News.

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MLA pay is governed by the Legislative Assembly Act and the law calls for salary increases to be paid automatically to elected members every Oct. 1 if the New Brunswick economy grows. 

They would have been the first increases MLA's have won on their $85,000 base salaries since 2008 except none of the extra money has been paid to politicians - or probably ever will be.

Wage freeze

MLAs are supposed to be under a wage freeze but in an embarrassing oversight last year and again this year the Gallant government forgot to pass legislation to disable the automatic raises.   

To deal with that government announced this summer the wage increases would simply not be paid until they can be retroactively cancelled when the Legislature resumes sitting later this October..

"We'll bring forward retroactive legislation to make sure (no raises) are implemented.  We committed to that and that's what we'll do." said former Cabinet Minister Donald Arseneault in July in explaining the decision not to pay  

"There's no excuse for it. It should have been done."

But a number of experts said government is now looking to fix the political mistake of not stopping the MLA raises by making a larger legal mistake.

O'Byrne claims government does not have the authority to withhold pay raises for MLAs that are granted in a law passed by the Legislature.

"When it comes to the allocation of public funds, it is the Members of the Legislative Assembly that have final say about how the money should be allocated," said O'Byrne  

"This is a longstanding constitutional principle in the Westminster system of government.  The funds should have be distributed according to the relevant provisions in the Legislative Assembly Act."

Few consequences for government

University of Prince Edward Island political scientist Don Desserud, who authored a paper on how to modernize the New Brunswick Legislature in 2011, agrees with O'Byrne but doubts government will care.

"I think her interpretation is correct. However, Canadian provincial legislatures are notorious for bending constitutional rules (as they apply to legislatures) when it serves their purpose, and I doubt there's any judicial avenue for redress," said Desserud 

"I also doubt that they will have any problems. Nor will they be any public backlash. Frankly, they'd have a problem if they took the raises, and then pleaded that they had no choice."

University of Toronto political scientist Graham White agrees there is little to stop the Gallant government from withholding MLA raises, even if it is in the wrong.

"This sounds to me as if the government is breaking the law. That said, the real issue here is political rather than legal – what MLA is going to challenge the government on this," said White.

Mario Levesque teaches political science at Mount Allison University and believes government should obey the law as written and live with the consequences of forgetting to cancel raises before they happened.