Changes to Cayman’s legal aid system, which have been debated for more than a decade, were approved by a majority of Legislative Assembly members Wednesday amid concerns that the government was blurring lines of separation between elected politicians and the judiciary.
The Legal Aid Bill, 2015, as approved, gives an unspecified government minister a significant degree of influence over the budget that provides indigent criminal defendants, as well as certain other court case participants with funding for attorneys to represent them.
The award of legal aid in any matter before the courts will now fall under an appointed director of legal aid, who consults with the judicial administration. That person is to be appointed by a civil service chief officer, but government ministers would not be able to direct that person in deciding who qualifies for legal aid.
The government minister who oversees the legal aid budget is permitted to give “general directions as to the policy to be followed by the [legal aid] director” and states that the director “shall give effect to such directions.” The bill also allows Cabinet, following consultations with the chief justice, to determine whether someone who receives legal aid assistance is able to pay for it.
“Oh, what a tangled web we weave … when we’re trying to increase our political fortunes,” East End MLA Arden McLean remarked during Wednesday’s debate on the bill. “It seems like people have short memories [of] when it was proposed to take legal aid and put it under the then-Leader of Government Business.”
Mr. McLean was referring to a plan proposed by the former United Democratic Party government in 2009 that moved the budget for legal aid from the chief justice into the control of the then-minister for finance, tourism and development – former Premier McKeeva Bush. Opposition party members at the time, including Mr. McLean and current Premier Alden McLaughlin, “took to the streets” – using Mr. McLean’s words – to oppose that change.
“It’s precisely what we didn’t want … when the UDP government proposed it,” Mr. McLean said. “What a difference a day makes,” Opposition Leader McKeeva Bush, the leader of the former UDP government said.
The Progressives-led government plan differs significantly from the one proposed by the UDP in 2009 in that it does not change the model used to provide legal aid services. Private sector lawyers will still receive a set fee – $160 per hour – from government for representing indigent defendants. The UDP plan sought to create a legal aid services office, run by a director, which would hire a certain number of lawyers who would be paid a fixed salary.
Mr. McLean said his main issue with the new legislation remained the same: “It still encroaches on the separation of powers.” Attorney General Samuel Bulgin denied that claim. He said the new director of legal aid would not be a judge and that he would not be directly involved in the administration of justice.
“The administration of legal aid by the director has nothing to do with the interpretation of the laws that have been passed,” Mr. Bulgin said. “It is not a judicial function.”
Premier Alden Mc-Laughlin said the Legal Aid Bill was partly an attempt by government to deal with the burgeoning costs of legal aid, which have grown from about $556,000 in 1999 to $2.7 million in the current government budget.
The bill seeks to achieve this by placing an initial $20,000 per case “cap” on any matter before the court. Additionally, lawyers will only be allowed, in most circumstances, to work 10 hours per day on any given legal aid case. The bill also seeks to reduce the use of overseas attorneys in legal aid cases, to the extent possible.
However, Mr. McLaughlin said costs must be controlled while representation continues to be provided to those who cannot afford it.
If the system is not reformed, Mr. McLaughlin said it would have grave consequences for justice in the Cayman Islands. “We will wind up with no one convicted of any serious criminal offense ever remaining convicted … because the individual did not have the benefit of adequate representation.”
Mr. McLean and North Side MLA Ezzard Miller voted against the bill, all government members who were present supported it, as did Opposition Leader Bush, who stated he would not oppose a plan that moved Cayman “in the right direction.”
“I’ll say it again, what a difference a day makes,” Mr. Bush said. “Thank you, Mr. Leader of the Opposition,” Mr. McLaughlin replied.
“You shut up,” Mr. Bush jokingly retorted.