Submission from Mr G E Harre, Former Chief Justice of the Cayman Islands, 22nd October 2007

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

(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