Legal aid changes may face delay

Proposed changes to the country’s legal aid system, which were announced suddenly by Premier McKeeva Bush a month ago, will be reviewed by a committee and could face delayed implementation.

Mr. Jack

Mr. Jack

‘An effective legal aid system is fundamental to the administration of justice,’ Governor Jack said in a statement released Thursday. ‘Access to adequate legal representation and, if necessary, legal aid will be required by the Bill of Rights, which will come into effect in three years time.’

The governor continued: ‘The system needs to be administered as cost-effectively as possible, and the government is entitled to consider how this can be achieved as long as these human rights requirements are met. In doing so, it is important to consult stakeholders.’

Mr. Jack said Premier Bush’s earlier initiative to change the administration of legal aid – the system that provides free legal representation for those who cannot afford to pay lawyers – will now be examined by a committee. That committee will include representatives from the government, legal profession, the judiciary and the governor’s office.

Mr. Bush said the committee review was being done at his own initiative, and said he hoped it would not delay the creation of a Legal Services Office.

In the meantime, the government is required to ensure the current legal aid scheme is adequately funded, ‘so that there is no disruption to the administration of justice through the courts.’

‘Additional funding is being urgently sought in accordance with the Public Management and Finance Law,’ the governor’s statement read.

‘We will cover whatever has been committed,’ Premier Bush said. ‘We will continue to fund legal aid to the best of the country’s ability to do so. But there must be change in the system.’

That funding issue could prove to be a sticky problem considering government’s current finance crunch.

When Premier Bush announced the changes to the legal aid system on 12 October in Legislative Assembly, the $1.85 million contained in the original legal aid budget was diverted to several different areas.

About $500,000 was set aside to create a new Legal Services Office that was proposed to start up in January. More than $1 million was earmarked for unrelated government projects such as a Bodden Town boat launching ramp, and small business development initiatives.

Some $300,000 was left in place to continue to fund current legal aid cases, but according to attorneys working in the court system, that money has already run out and some lawyers have not received pay for weeks.

The provision of legal aid has been a political battleground for a number of years in the Cayman Islands. Local lawmakers have often groused about what the public is required to pay for legal representation, mainly given to indigent criminal defendants.

However, criminal defence lawyers have argued that severely cutting legal aid funding could lead to human rights violations if defendants are forced to represent themselves in court.

Other legal and human rights organisations have pointed to the potential costs of a public defender/legal aid office. A 2008 report completed following a lengthy study by the Cayman Islands Law Reform Commission estimated that the costs of setting up a public defender’s office would approach some $400,000 before a single lawyer was hired to work there.

The commission pointed to specific examples where legal aid/public defender’s offices had been tried as a cost-saving measure.

The commission’s 2008 report stated: ‘A public defender’s scheme would involve significant expense…to include secretaries and paralegals, expenses which the private practitioners must assume as part of their own costs of doing business.

‘A separate Scottish Public Defender Solicitor’s Office had been established in Edinburgh in 1998. The scheme, however, does not appear to have been a success. In the final evaluation of the pilot scheme it was concluded that the cost of the service was around twice as much to operate per hour as opposed to paying private firms.’

Premier Bush has generally rejected these arguments, stating they are put forth by the very lawyers who are profiting from the legal aid system. He has given the example of one attorney who billed the legal aid system $146,042.14 last year.

‘The perception (is) that there are firms that rely solely on legal aid for the existence of their practice,’ Mr. Bush said. ‘This perception suggests that government sustains these firms and without government funding they would be bankrupt.’

The Cayman Islands Human Rights Committee has advocated in favour of a Legal Services Office handling areas such as immigration appeals or labour disputes, but wondered whether the proposed $1.2 million yearly budget would be sufficient to do that.

‘The previous legal aid budget ($1.85 million) was extremely tight and these further cuts are significant,’ the committee’s statement noted.

Mr. Bush has said statements about the previous legal aid budget being tight were not backed up with facts, simply because no audit of the system’s spending had ever been done.

The premier also noted that judges decide on legal aid contributions and that no maximum cost is set on court cases where legal aid is used.

‘There is no financial formula used to ascertain the contribution that must be made by a recipient,’ he said.

Mr. Bush has said previously that the Legal Services Office would be evaluated as it goes along, and if it ended up costing more, government would look at other options. But he said the legal aid system had to be changed from its current costly form.