Submission by George Elliot Harre, Chief
Justice of the Cayman Islands 1993-98 and Puisne Judge 1988-93
This submission and the supporting documents
address matters concerning the relationship between the judiciary
and other arms of government, both in the Cayman Islands and London.
Although I retired in 1998 they are not simply a matter of history,
as the documents which I now send as appendices will show.
These appendices are as follows[119]:
1. An aide memoire in five parts, recording
correspondence between 1989 and 2004 with brief indications, where
necessary, of the thrust of individual documents. Full copies
of exchanges since 2004 have been added
2. Observations by me by way of a revision
in April 2005 of a document produced by me in September 2002.
3. A letter dated 1 February 1999 from the
late Secretary of State to the Rt Hon Virginia Bottomley with
my comment on it made at the time. I would now like to expand
on that by saying that I think it quite wrong for a contract officer
working in the executive arm of government, whatever his previous
history, to, be commissioned, acting alone, to produce a report
on the judiciary. It gives the appearance of bias, and I believe
that the report produced showed actual bias. Its disparaging comment
on the judges is completely at variance with a wealth of recorded
and attributable political, professional and press opinion.
I regret that this submission has to relate
to a matter so personal to me. It does, however raise wider issues
which, I respectfully submit, fall within the terms of reference
of the enquiry by the Committee on standards of governance in
the Overseas Territories.
Having sought by reference to the historical
record to throw light on some problems, I feel an obligation to
propose a possible way of alleviating them. It is that the affairs
of Her Majesty's Judges in the Overseas Territories should fall
under the responsibilities of the Minister of Justice and Lord
Chancellor, by analogy with the position in England. The concerns
of the judiciary are distinct from those of other arms of Government,
whether in London or in the Territory in which they serve. Interlocutors
of the same professional background and sympathies as the judiciary
and with the necessary influence elsewhere, are important safeguards
against the development of the kind of confrontational situation
which is an ever present danger where personalities clash in a
small jurisdiction. Governors nowadays are able to talk with their
diplomatic colleagues in London. Legislators in Cayman and London
have good channels of communication. I cannot speak for today
but in my time there was a sense of isolation when the inevitable
tensions developed. Of course there is an abundance of international
organisations ready to step into the fray but I have always preferred
quieter solutions than that.
I shall keep this submission brief, but I am
willing, if asked, to appear before the Committee to answer any
questions arising from them and to share my impressions generally.
GOVERNANCE
The problem inherent in the Governor's dual
role in representing Her Majesty's Government in the territories
while at the same time representing the interests of those territories
to London can only be minimised within the concept of "qualified
nationality" rather than overcome. They have been exacerbated,
however, by a power given by the legislature of the Cayman Islands
on the application by a Governor made through the Attorney General
to make delegated legislation concerning the financial provisions
relating to the judiciary. The proposition that this was a means
of removing control of the judiciary from political or executive
interference was an illusion. The legislature could repeal the
primary legislation and no statutory head of expenditure was created
for the necessary funds. This unusual procedure purported to be
an implementation of a constitutional amendment which came into
force in February 1994. Eleven years, and the terms of office
of three Governors came to an end before the delegated legislation
was signed by the fourth, days before his departure. The same
period also saw the departure of two Attorneys General, one in
sudden and dramatic circumstances. There was a successful bid
for power between elections as well, through the formation of
a new political party. Within days, the new executive had repudiated
a fundamental term of the retirement package which I had just
agreed. This memorandum is not the place to go further into the
personal consequences for me and my family as a result of these
constantly moving goalposts and unreasonable delays, but I do
say that there has been a breach of established international
standards which reflects badly on the British as well as the local
administration.
JUDICIAL APPOINTMENTS
PROCEDURES
There is great variety in the procedures even
in the former British colonies in the Caribbean, with yet more
for historical reasons in the Channel Islands and the Isle of
Man. Gibraltar has current problems all her own. I think it unlikely
that the procedures in these territories would prejudice the appointment
of independent and impartial judges. One cannot remove the political
element, and in the end.it will rest with Her Majesty's Government
in relation to those judges who sit beneath the Lion and the Unicorn
rather than the arms of the local government. I have a sentimental
attachment to that concept, having witnessed the removal of the
Royal symbol in Fiji, surrounded by weeping local staff. Nevertheless,
I would like to emphasise the element of transparency which, I
must acknowledge, was singularly absent in relation to my own
appointment as Chief Justice. It is particularly important in
a small jurisdiction where suspicion of an outsider may exist,
and may also serve to assuage feelings of disappointment in any
other member of a small bench who was also a candidate for the
post.
THE OFFICE
OF ATTORNEY
GENERAL
The arrival of a formal political party system
in the Cayman Islands has magnified a problem which has always
existed iin relation to an Attorney General who is a civil servant
and continues in office notwithstanding a change of Government.
He is a member of Cabinet and the Legislative Assembly and the
principal legal adviser to the Government. He is also sometimes
used as adviser to the Governor. Under the new draft Constitution
the power to make appointments to the office of Attorney General
is vested in the Governor, acting after consultation with the
Chief Minister. That same Chief Minister could be the Leader of
the Opposition upon a change of Government. In that event the
new administration would inherit as its principal legal adviser
an individual who:
(a) was appointed after consultation with
its principal opponent;
(b) advised, and was party to, previous Cabinet
decisions; and
(c) may, as a member of the Legislative Assembly,
be called upon to explain his involvement in measures to overthrow
those decisions.
Surely that situation should be professionally
intolerable to any legal adviser as well as to the other parties
involved. Conflicts of interest abound.
An Attorney General should vacate office on
a change of Government. I can see no alternative.
15 October 2007
119 Not printed. Back
|
