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.
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.
and membership of Attorney-General’s Office 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].
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.
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].
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].
of Attorney-General’s Office Board
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
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.
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
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.
of Attorney-General’s Office
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.
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.
should be noted:
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.
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.
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,
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
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.
makes every effort to ensure reliable information, but cannot
take legal responsibility for information supplied.