The recent decision by the government to take the administration of legal aid from the Chief Justice and hand it to the Leader of Government Business, Hon. McKeeva Bush, appears to have given rise to significant opposition from the legal fraternity in the Cayman Islands.

Concerns were first raised by Opposition member and George Town Member of the Legislative Assembly (MLA), Alden McLaughlin, himself a lawyer, in Finance Committee when the decision was taken by the government, and in the past week the Criminal Defence Bar Association, the Caymanian Bar Association, the Cayman Islands Law Society and most recently, the Cayman Islands Human Rights Committee, have all expressed serious misgivings over the new legal aid policy.

Remarks made by Mr Bush during a recent unscheduled appearance on the Rooster Radio Talk Show, accompanied by the two named administrators of the new system, attorneys Steve McField and Theresa Lewis-Pitcairn, have only served to increase concern about the impact the new legal aid system will have on the fundamental right of persons charged with serious offences before the court to be properly represented, or indeed represented at all.

And the largely self-serving statement made by Mr Bush to the Legislative Assembly this past week did little to dispel the perception that something is very wrong with the new plan.

This fundamental change in legal aid policy by the government has been questionable from the outset. The motion was moved by novice Bodden Town MLA, Dwayne Seymour, at 8:30pm on 12 October at the conclusion of Finance Committee. No notice was given to the Opposition or the legal fraternity and there was no consultation with either the Attorney General or the Chief Justice.

Although, just a few days before, Finance Committee had approved $1.8 million as the legal aid budget to be administered by the courts over the course of the current fiscal year, $1 million was subsequently transferred out of that fund to enable Mr Bush to use it for “nation building”; $300,000 was set aside to pay existing legal aid bills and the remaining $500,000 is to be given as a “grant” to Mr McField and Mrs Lewis-Pitcairn to establish a Legal Aid Office.

Mr Bush has said that dissatisfaction with both the cost of the present legal aid system as well as the service it provides are the reasons why it has to be changed. But quite how Mr McField and Mrs Pitcairn are going to provide legal aid to all defendants entitled to it for less than a third of the present cost, while at the same time enhancing the range of services, remains a mystery.

However, in contradiction of the concerns raised by Mr Bush, the Law Reform Commission, which was charged with examining legal aid provision, said last year that the present system was essentially sound, although it could and should be improved upon.

The Commission’s report concluded that “…the present system of provision of legal aid services by the private bar in general offers good value for money… The current legal aid system, the judicare model, provides a high calibre of service and is far less expensive ultimately than a public defender’s scheme.”

The new legal aid system does not appear destined to save the country money as Mr Bush claims. We predict that well before the end of the present fiscal year the government will be forced return to Finance Committee seeking further grants to Mr McField and Mrs Pitcairn in order for legal aid provision to continue.

We have previously expressed our extreme concern that the country’s political leader should have the ability to decide who receives legal aid and who does not, especially a leader that, according to his recent pronouncements on local talk radio, believes that legal aid should not be awarded to persons who have been charged with having committed “heinous crimes” and that, while everyone deserves a fair trial, our jurisprudence does not require that government pay for it.

Clearly, Mr Bush is either ignorant of or has no regard for the principle enshrined in Article 6 of the European Convention on Human Rights and mirrored in Section 7 of the Bill of Rights in our new Constitution, which requires that legal aid must be available to all those charged with serious offences who cannot afford to pay for legal representation themselves.

According to the Caymanian Bar Association and the Cayman Islands Law Society, “This suggested ‘reform’ will damage the reputation of these Islands,” and it is difficult to disagree with this proposition.

It would, in the meantime, be helpful if the Governor, the Chief Justice and the Attorney General were to break their deafening silence on the issue so far.