QUALIFICATIONS AND TENURE OF OFFICE
OF THE DIRECTORS
128._Clauses 4 to 6 provide new provisions about
the tenure of office of the prosecutorial directors. The Attorney
General wrote to the Committee explaining that the new provisions
setting a five year term, and ensuring that the Director may only
be removed under certain circumstances, provide "a significant
enhancement to the security of tenure for the Directors",
since "[c]urrently, the Directors are appointed for whatever
term of office the Attorney considers appropriate (which has ranged
from 1 year to 5 years) and are dismissible by the Attorney subject
only to the limitations of contract law and public law."
(Ev76) In his written evidence to the Committee, the Director
of Revenue and Customs Prosecutions, David Green asserted that
"[g]reater flexibility would be achieved by maintaining the
ability of the Attorney to reappoint a serving Director for a
term of less than 5 years." (Ev69) The Attorney General,
however, stated that there might be a case for a limit on re-appointment,
both to re-emphasise independence and to prevent a Director becoming
"stale". This was an area "where the Government
is still thinking". (Ev76)
129._Democratic Audit and JUSTICE welcomed the new
clauses, (Ev04, para 46, Ev45, para 10) but Global Witness argued
that it was "inappropriate for the Directors to be appointed
by the Attorney General as long as s/he remains a member of the
Executive", and that any "decision to remove the Directors
should be subject to an independent and impartial review".
(Ev39) The Corner House questioned whether the proposals met the
security of tenure criteria for public prosecutors set out by
the Council of Europe in 2000. (Ev10) Professor Jowell was
particularly concerned that a Director could be dismissed by the
Attorney as "unfit" for failing to have regard to the
(as yet unwritten) protocol.[74]
The Justice Committee argued that this left the position of the
Directors unclear: "The Directors ought to have clearer security
of tenure than is apparent in the Draft Bill."[75]
In her letter to us, the Attorney General rebutted these claims,
claiming that "it is right that compliance with the protocol
is recognised as a key indicator as to the fitness of the Director.
But the test remains one of unfitnessa high test."
(Ev76)
130._We welcome the proposed new clauses relating
to the tenure of office of the Directors, but recommend that the
Bill be amended to make clear that it will be possible for the
Directors' terms of office to be renewed.
OATH OF OFFICE
131._The Government are committed to reforming the
oath of office of the Attorney General, but are not planning to
place it on a statutory basis. The Attorney General told the Committee
that that was simply because "we do not need to have a piece
of legislation. I do not think it is any more complex than that.
I tend to take the view
that if you do not need legislation
then we should not have it". (Q 648) Lord Goldsmith
agreed. (Q 686)
132._There was general agreement amongst witnesses
that it was necessary to reform the oath, and several argued that
it would be best to do so by way of statute. Lord Mayhew argued
that "it had better be achieved by statute", although
he was more concerned with the fact that the Bill made "no
reference to the traditional role of the Attorney General as the
guardian of the public interest". (Ev67, Q 600) The Bar Council
thought that a statutory approach was essential, to "giv[e]
it Parliament's full endorsement". (Ev55, para 15) The Constitution
Committee believed that the responsibilities of the Attorney (and
possibly other ministers) in upholding the rule of law should
be acknowledged in statute, and that the Attorney's oath of office
should be updated through primary legislation. (Ev71, paras 9-11)
The Justice Committee agreed that the Attorney's oath of office
"should be reformed to cover the duty to uphold the Rule
of Law."[76]
133._We agree with the Government that the oath
should be reformed, but like the Government, we do not believe
that it is necessary to put the oath on a statutory basis.
40 The Governance of Britain: A Consultation on
the Role of the Attorney General, July 2007, Cm 7192, para
1.6 Back
41
Ministry of Justice, The Governance of Britain, July 2007,
Cm 7170, para 54 Back
42
Constitutional Affairs Committee, 5th Report (2006-07), Constitutional
Role of the Attorney General (HC 306) Back
43
Constitution Committee, 7th Report (2007-08): Reform of the
Office of Attorney General (HL 93) Back
44
Justice Committee, 4th Report (2007-08), Draft Constitutional
Renewal Bill (provisions relating to the Attorney General)
(HC 698) Back
45
ibid., Q 5 Back
46
ibid., para 40 Back
47
Ministry of Justice, The Governance of Britain-Constitutional
Renewal, March 2008, Cm7342-I, para 66 Back
48
Liaison Committee, Minutes of Evidence, 3 July 2008, HC 192-ii,
QQ 131-132 Back
49
ibid., Q 132 Back
50
Constitutional Affairs Committee, 5th Report (2006-07), Constitutional
Role of the Attorney General (HC 306), paragraph 86 Back
51
Draft Constitutional Renewal Bill (provisions relating to the
Attorney General), op cit., QQ 46-52 Back
52
ibid., QQ 9, 14 Back
53
ibid., Q 19 Back
54
See e.g. Law Officers' Departments Departmental Annual Report
2008, Cm 7406, May 2008. Back
55
Draft Constitutional Renewal Bill (provisions relating to the
Attorney General), op cit., Q 4 Back
56
ibid., para 71 Back
57
The Governance of Britain-Constitutional Renewal, op cit.,
para 59 Back
58
Draft Constitutional Renewal Bill (provisions relating to the
Attorney General), op cit., para 89 Back
59
ibid., paras 33-5 Back
60
ibid., para 88 Back
61
ibid., Q 4 Back
62
ibid., para 42 Back
63
ibid., Q 76 Back
64
ibid., Q 77 Back
65
ibid., QQ 59-64 Back
66
ibid., para 45 Back
67
ibid., Q 22 Back
68
ibid., para 51 Back
69
ibid., para 52 Back
70
The Governance of Britain-Constitutional Renewal, op cit.,
para 90-92 Back
71
Draft Constitutional Renewal Bill (provisions relating to the
Attorney General), op cit., paras 66-69 Back
72
The Governance of Britain-Constitutional Renewal, op cit.,
paras 70-75 Back
73
Draft Constitutional Renewal Bill (provisions relating to the
Attorney General), op cit., paras 53-58 Back
74
ibid., QQ 27-30 Back
75
ibid., para 63 Back
76
ibid., paras 93-96 Back