Submission from Mr G E Harre, Former Chief
Justice, Cayman Islands
1.1 In the submissions which I sent I used
headings which I shall repeat now where appropriate. First, however,
I refer briefly to my submission dated 9 October in which I suggested
that the responsibility for the affairs of Her Majesty's Judges
in the Overseas Territories should fall under the Ministry of
Justice rather than the Foreign and Commonwealth Office.[254]
That was not to suggest that I did not recognise the importance
of the interdepartmental consultation which takes place on such
matters and others relating to the Overseas Territories
1.2 GOVERNANCE
On 12 September 2007, the Lord Chief Justice
of England & Wales delivered the opening speech at the Commonwealth
Law Conference in Nairobi. His theme was judicial independence,
and he adopted the so-called Latimer House Guidelines endorsed
by Commonwealth Heads of Government in 2003 as the framework for
his speech. I shall make reference to his speech later in these
my further submissions by way of more detailed treatment of issues
which I suggest fall within the ambit of good Governance and to
which the Foreign & Commonwealth Office and its appointees
in the Cayman Islands did not deal with appropriately.
The full text of Lord Phillips' speech may be
found, if desired, in the record of the Commonwealth Law Conference
1.3 JUDICIAL
APPOINTMENTS PROCEDURE
The current review of the Constitution of the
Cayman Islands includes a recommendation concerning the functions
and membership of a Judicial and Legal Services Commission. The
absence of such a body caused difficulty in the Cayman Islands
during my tenure there. I have some reservations about the proposed
membership of the Commission, in particular the inclusion of a
nominee by the leaders of Government and Opposition respectively.
I think that this introduces the Government input at quite the
wrong point where it may introduce unnecessary controversy and
even political grandstanding but that I can best pursue this as
part of the general debate on the Constitutional Review.
1.4 THE OFFICE
OF ATTORNEY
GENERAL
The Constitutional Review has recommended, as
I did in my submission to your Committee, that the Attorney General
should no longer be a member of The Legislative Assembly or of
Cabinet. How he deals with any remaining conflicts of interest
arising from his position as legal adviser to successive Governments
will be matter for his professional conscience and possibly the
professional conduct provisions of the proposed Legal Practitioners'
Law. Reform of this is long overdue and finalisation of the draft
Bill is being strongly urged by the Cayman Islands Law Society.
2.1 The Latimer House Guidelines call, among
other things, for an independent, honest and impartial judiciary
as being integral to upholding the rule of law. In that context
Lord Phillips observes that judicial independence requires that
judges should be true to their oath to administer justice without
fear or favour, affection or ill will. He continues his consideration
of the subject with a reference to the Latimer House Guideline
which requires an appropriate independent process that will guarantee
the quality and independence of mind of those appointed. After
explaining the position in England and Wales, he says this—
"My understanding is that, so far as judicial
appointments are concerned, we are catching up with the rest of
the Commonwealth in that most members have transparent appointment
systems that are protected from political influence, although
there are some notable exceptions
Although in general I see no role for the executive
in selecting judges there is a case for a limited power of veto
in relation to the most senior appointments. The senior judiciary
today have, to some extent, to work in partnership with Government".
It is inappropriate that the Cayman Islands
should still be a place which does not have an independent Commission
charged with responsibility for Judicial appointments as a result
of the lack of urgency given to this fundamental matter. I first
raised it with the Governor of the day as long ago as 1996.
2.2 The next topic dealt with by Lord Phillips
was judicial terms of service. On that the Latimer House Guidelines
say that, as a matter of principle, judicial salaries and benefits
should be set by an independent body and their value should be
maintained. Judges should never feel that if they do not please
the government their salaries may be at risk. I never felt that
during my time as Chief Justice, although I was told in blunt
terms by a Governor that one of my decisions had embarrassed the
British (sic) Government. I have felt, however, that my retirement
package has been adversely affected by my lack of rapport with
the Governor who approved it. Moreover, if in ten years of judicial
service in a small jurisdiction a judge never makes a decision
which displeases anyone in a local position of power he will not
have been doing his job. For that reason it is particularly important
that judicial terms of service and, consequently, independence
should be well protected there.
2.3 It was inappropriate that salaries and
benefits of judges should have been set, not independently, but
on the recommendation of a single member of the executive appointed
as a consultant by the Governor. It was at least equally inappropriate
that the Governor and his successors should fail to implement
the power given to them by the Legislative Assembly to make delegated
legislation on the matter for nearly eight years after the enabling
Law was passed and that this should finally appear, showing every
appearance of hasty drafting, on almost the last day of the tenure
of the Governor who signed it.
3.1 The financial consequences of the events
which I have already described have been disastrous for me and
my family. Between my retirement as Chief Justice of the Cayman
Islands in June 1998 and December 2001 I received no retirement
benefits from there at all and had to draw on my modest capital
to live. In December 2001 I agreed to accept CI$177,843 in settlement
of past entitlements. This included a capital sum consequent upon
my exercise of the option to commute part of my pension. It was
not a fair figure, but I preferred not to argue and get on with
my life. However, on 31 December 2001 I was informed that the
Governor in Council had met to address the funding of my benefits
and had removed the commutation option. I would accordingly receive
only CI$88,621. This flew in the face of the Judges Emoluments
and Allowances Law 1997 which had been presented to and passed
by the Legislative Assembly on the basis that it provided that
the annual salary, any pensions and other allowances of the Grand
Court judges had (and I now quote Hansard) "nothing
to do with the Executive Council of the Cayman Islands or indeed
the Government. It is entirely a matter for the Governor himself,
acting in his discretion". If no provision had been made
for access by the Governor to funds under his general responsibility
for good governance, this was meaningless. Obviously it had not,
and the Legislative Assembly was misled by the presentation by
the Attorney General, speaking on behalf of the Governor.
3.2 The financial loss which I have suffered
is far greater than the difference between CI$177,843 and CI$88,621
by reason of the collapse of the dollar between 2001 and today
against the Pound and the Euro, the currencies on which I live.
3.3 Although a monthly sum has been paid
to me since 2002 there was no formal legal basis for this for
several years. Having already experienced what I have just described,
I could not be confident from month to month that payment would
continue. Even after the appearance of the contemplated delegated
legislation in 2005 there remain questions of interpretation which
may yet lead to litigation. I now wish that I had sued years ago,
as I was advised to do. One reason why I did not was that each
Grand Court judge has a financial interest in the present pension
arrangements (which are vastly more munificent than those which
are likely to be enjoyed by their successors for reasons which
deserve a saga of their own). An acting judge of manifest impartiality
would have to be found.
3.4 All in all, I think that this affair
merits a Commission of Enquiry, though it is hardly likely that
an incumbent Governor will order one without pressure from London.
31 January 2008
254 Ev 183. Back
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