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Attorney-General's Office Bill - Bill Watch 41/2010
Veritas
October 07, 2010

Introduction

The Attorney-General’s Office Bill was gazetted on 10th September, 2010, and is therefore ready for presentation. It is on the agenda for its First Reading in the House of Assembly next week.

The purpose of the Bill is explained in its covering memorandum: it is to take the Attorney-General’s Office out of the Public Service and to transfer responsibility for administering the Office to a new Attorney-General’s Office Board. In this way, according to the Bill’s preamble, it is hoped that the independence, effectiveness and efficiency of the Office will be enhanced.

Will the Bill have this effect? An examination of its provisions indicates that the Bill is unlikely to achieve this objective.

Appointment and membership of Attorney-General’s Office Board

The Board will consist of the Attorney-General, a member of the Public Service Commission and up to five other members appointed by the President [clause 8 of the Bill]. Two of those other members will have to be former judges or persons qualified to be judges — serving judges will not be eligible for appointment — and one of them will be appointed by the President to chair the Board. In terms of clause 4(2) of the Bill at least three or four of the members will have to be women [a curious provision, this: it is not clear what the minimum number should be; perhaps four is the maximum number of women that can be appointed to the Board].

Under paragraph 2 of the First Schedule to the Bill, Members of Parliament or of local authorities will not be eligible for appointment to the Board, nor will unrehabilitated insolvents — which is just as well because the Board will be responsible for administering State funds allocated to the Attorney-General’s Office. On the other hand persons with criminal records will be eligible as long as they have not been sentenced to an effective term of imprisonment less than five years before they are appointed.

Although the Bill states that the President will appoint members of the Board, while the Inter-Party Political Agreement [GPA] remains in force the appointments will have to be made with the agreement of the Prime Minister [see article 20.1.3(p) of the GPA – the President ... “in consultation with the Prime Minister, makes key appointments the President is required to make under and in terms of the Constitution or any Act of Parliament – and “in consultation” as defined in section 115 of the Constitution means with agreement].

Members of the Board will enjoy the same protected tenure as members of the Judicial Service Commission under section 110 of the Constitution [paragraph 5 of the First Schedule to the Bill – though it refers to the wrong section of the Constitution and this needs to be corrected].

Functions of Attorney-General’s Office Board

The Board’s functions will be limited to appointing members of the Attorney-General’s Office, other than the Attorney-General and his deputies, fixing their conditions of service, attending to their grievances, disciplining them and, where necessary, dismissing them [clause 5 of the Bill]. Essentially the Board’s functions will be those currently exercised by the Public Service Commission.

Clause 5 states that the Board has the function of “administering and supervising” the Attorney-General’s Office. This is a very broad mandate and could be interpreted as controlling the way in which prosecutions are conducted. In the overall context of Bill, however, it seems fairly clear that the Board will have no power to control the way in which members of the Office carry out their professional duties.

Clause 6 of the Bill encourages the Board to delegate its powers to its chief executive officer, called “the Director”, who will also be the head of a Department of Administration in the Attorney-General’s Office [clause 9 of the Bill]. There is no limit to the powers that the Board may delegate to the Director, though it will be able to revoke appointments and promotions made by the Director if it considers them to be unlawful.

The Board is supposed to be independent [this is stated in clause 5(3) of the Bill] but under clause 8 the Minister of Justice [not the Attorney-General, as stated in the Bill’s memorandum – note the memorandum has no legal significance] will have power to issue policy directives with which the Board will have to comply. This is not such a serious infringement of the Attorney-General’s independence as it may seem, because the Board’s functions are essentially administrative and the Minister will not be able to dictate the policy to be adopted in regard to prosecutions or the nature of advice given by the Attorney-General’s Office.

Under clause 7 the Board will have to report annually to the Minister of Justice and provide him with whatever information he may require as to the operation of the Attorney-General’s Office. This is a further inroad into the Board’s independence.

Organisation of Attorney-General’s Office

Parts III and IV of the Bill deal generally with the structure of the Attorney-General’s Office and the conditions of service and discipline of its members.

As noted above, clause 9 of the Bill establishes a Department of Administration. It is the only department that is established directly by the Bill; others will be established by the Board under clause 10. This is another indication that the Bill is concerned primarily with administrative matters, not with the way in which the Attorney-General and his staff carry out their professional duties.

The staff of the Attorney-General’s Office will have to serve an initial probationary period of from six months to a year [clause 12] but otherwise their conditions of service — their salaries, pensions, discipline and so on — will be fixed by the Board under clause 13 and through service regulations made under clause 24. In this respect the Board’s powers will be the same as those that Public Service Commission exercises over public servants — indeed, the clauses of Part IV of the Bill have mostly been copied from the Public Service Act.

Two points should be noted:

  • The Board will be able to draw up a code of ethical and professional conduct for members of the Attorney-General’s Office. This is sorely needed. It has never been clear how far the ethical rules governing legal practitioners bind prosecutors and other members of the Office. A formal code of conduct for prosecutors will do much to clarify this. It is not clear if such a code would bind the Attorney General and his deputies who are constitutional appointees.
  • The provisions of the Public Service Act prohibiting public servants from standing for election to Parliament or a local authority have not been carried over into the Bill. Perhaps they were felt to be unnecessary, but their omission from the Bill will allow the Board, if it is so minded, to permit members of the Attorney-General’s staff to engage in politics and stand for election. This needs to be corrected

The procedure to be followed in disciplining members of the Attorney-General’s Office is outlined in Part IV of the Bill, and is very much the same as that applicable to members of the public service. Members who are aggrieved at disciplinary action taken against them will have a right of appeal to the Labour Court.

Finances of Attorney-General’s Office

Like all government departments, the Attorney-General’s Office will be funded by the State through parliamentary appropriations [clause 18 of the Bill]. The Board will also be able to accept donations from foreign governments and, unlike the Electoral Commission, will not need permission from the Minister to do so.

Conclusion

To revert to the question posed at the beginning of this Bill Watch: will the Bill enhance the independence, effectiveness and efficiency of the Attorney-General’s Office? The answer, regrettably, is that it probably won’t.

The main effect of the Bill is to transfer responsibility for the Attorney-General’s Office from the Public Service Commission to a new body headed by a former or aspirant judge and composed of various worthies [plus, perhaps, one or two criminals] who are appointed in very much the same way as members of the Commission. There is nothing in the Bill to suggest that they will do a better job of administering the Office than the Commission has done. They will have no greater powers than the Commission and they are unlikely to be given any more money by the Treasury than the Commission was. Without additional powers and funds, how can they succeed where the Commission, apparently, has failed?

The Bill will not increase the independence of the Attorney-General’s Office. The Office will still be dependent on the government for its funding even though it will not get its funds through the Ministry of Justice.

As to increasing the impartiality of the Office, the Bill will do nothing to ensure that prosecutions are instituted on legal grounds alone, or that law officers give advice competently, impartially and fearlessly. The Bill does not, for example, prohibit members of the Attorney-General’s Office from participating in politics, and this is a serious omission. The Bill does not affect the way in which the Attorney-General and his deputies are appointed [it cannot do so, because those matters are governed by the Constitution] and if a politically biased Attorney-General is appointed prosecutions will be conducted on a partisan basis whether or not the Bill is enacted.

Lastly, is this Bill at all necessary? If the Public Service Commission is not doing its job of ensuring professionalism in the Attorney General’s office, a better remedy would be to reform the Commission, rather than enact superfluous legislation.

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