Information boss to rule on withheld legal aid report

(CNS): Following the denial of an FOI request made by CNS more than one year ago for a legal aid report, it will be the information commissioner who finally decides if it should be released or not. The document, which was finished in March 2010, has remained under wraps for almost 15 months as officials say it has still not been discussed by Cabinet. The report was written by a special commission that was established to review the legal aid system as a result of concerns raised in the wake of a government motion passed in a late evening sitting of the Legislative Assembly in 2009. The unannounced change not only reduced the legal aid budget but moved it from the independent jurisdiction of the courts into the political realm of the premier’s ministry.

The sudden decision after the annual budget of $1.8 million of financing had already been allocated to the judicial services department included a reduction of $500,000 in the legal aid allocation and an announcement by the premier that he intended to set up an independent legal aid clinic. The office, McKeeva Bush told his legislative colleagues in a Finance Committee hearing at around 9pm on a Friday night, would be established and managed by local attorneys Teresa Pitcairn and Steve McField.

With no input from the legal fraternity or judiciary and in light of an earlier law reform review that had indicated the administration of legal aid by the courts was value for money and a clinic would prove more expensive, the move by the premier caused controversy among the profession and uncertainty for local defence lawyers doing legal aid work.

Following the furore, the then governor Stuart Jack stepped into the fray and asked the premier to reallocate the missing funding to the courts. Although the government was entitled to consider how to manage the costs of legal aid, he said, human rights requirements had to be met and stakeholders consulted. Jack recommended that a committee examine the premier’s proposal.

“The government will, in the meantime, ensure that the current scheme administered by the Judicial Administration is adequately funded so that there is no disruption to the administration of justice through the courts,” he stated at the time.

A committee, chaired by Cheryl Neblett, was established to review the system, which included government backbencher MLA Elio Solomon, Steve McField (the attorney that government said would run the clinic) and two representatives from the courts. Although the committee was asked to conclude their work as quickly as possible, the findings in the report have never seen the light of day. The legal aid budget was never returned to the jurisdiction of the courts, despite the fact that the legal aid clinic was never established.

In January of this year, during the annual Grand Court opening session, the chief justice publicly called on government to return the budget back to the courts. Anthony Smellie said that although both the law and the country’s constitution placed  the responsibility for legal aid and the duty to ensure fair trials on the courts, no budget had been allocated to them to as the money was given to the Ministry of Finance instead.

“While, as a purely administrative exercise, the bills are being paid as submitted by the judicial administration, we could not agree, as proposed by the ministry, that the ministry should be able to override the judiciary’s decisions, made under the law, to grant legal aid,” the chief justice said.

He pointed out that the subject of legal aid had been thoroughly examined and the existing system found to work well. Smellie called for the executive arm of government “to allow matters to return to normalcy”, suggesting that any necessary improvements to the existing system could readily be addressed.

CNS first began asking for the report, which is believed to support the CJ’s position, via a freedom of information request in April 2010 but we have persistently been denied access. As a result of a refusal by the chief officer after an internal review in January, CNS asked the information commissioner to intervene. After mediation with the finance ministry failed to produce a result, the ICO made the decision to move to a formal hearing.

The commissioner will now decide if the ministry’s continued refusal under Section 11(2)(b) of the FOI law, which allows a public authority to defer or refuse a document Law if it was for presentation to a particular body such as Cabinet or the LA, is still valid given the amount of time that has now lapsed.