Arguments for the defence

The UN agreed guidelines and principles for criminal legal aid at its general assembly just before Christmas, writes Roger Smith. The decision was a tribute to years of work by internationally focused NGOs like Penal Reform International (PRI), now run by former Legal Action Group director Alison Hannah, and the Open Society Justice Initiative. It had its origin in work done by PRI in Malawi and attracted initial support from a number of African states of the kind where it is likely to be most valuable – those with shaky legal aid schemes in their early development.

However, it is a sign of the distressing times in which we live that the principles and guidelines may also provide useful ammunition for the defence of legal aid in the UK.

Politically toxic
This sort of document does not attract much media interest in the UK or all that much concern from the UK government. It is unenforceable in domestic law and, thus, comes in a very different category than the regulation on criminal legal aid currently being worked on by the European Union.

The latter is likely to get the British boot despite the fact that, actually, the jurisdictions of the UK have had a pretty good legal aid record and are among the better places for a suspect to be arrested. However, the very sniff of EU involvement is currently so politically toxic that the Coalition Government even seems to be contemplating our removal from pro-prosecution measures such as the European Arrest Warrant. In any event, all UK governments are fearful at the best of times of submitting to European regulations, particularly when they can now – post-Lisbon – be enforced by the European Court of Justice in Lisbon. In the event, the EU’s proposed regulations can probably be scuppered by the UK whipping up a bit of opposition among countries that might actually be required by them to pay up a bit more money for legal aid.

The UN document, however, has none of the EU’s drawbacks. It has moral authority only.

There was apparently a bit of muttering ‘from two countries’ (bet one was ours) about draft wording that referred to legal aid as a human right.

Otherwise, few had much problem with what, in a UK context at least, can be portrayed as a pious and unenforceable restatement of motherhood and apple pie. So low key was our response that there is no mention of the guidelines on the FCO website. And, though the draft version was mentioned in the Guardian back in April, there was no discernable coverage of the final version in any of the mainstream media.

Under attack
Nevertheless, we should not dismiss the guidelines and principles too easily. We may find that they come in handy to bolster arguments for the defence of a benefit which is now coming under sustained attack.

The sort of thing that might be helpful is paragraph 14:

‘States should consider the provision of legal aid as their duty and responsibility. To that end, they should enact specific legislation and ensure that a comprehensive legal aid system is in place that is accessible, effective, sustainable and credible. States should allocate the necessary human and financial resources to the legal aid system.’

Paragraph 17 might also prove useful:

‘Free legal assistance should also be provided, regardless of the income of the person, if the interest of justice so requires, for example in the case of urgency, complexity or the severity of the potential penalty.’

And those with a litigious frame of mind might find sustenance in paragraph 25:

‘States should establish effective remedies and safeguards that apply if access to legal aid has been delayed or denied or if persons have not been adequately informed of their right to legal assistance.’

For those concerned at the assumption of the Legal Service Commission within the Ministry of Justice, there is paragraph 51:

‘To ensure the effective implementation of their nationwide legal aid schemes, States may consider establishing a legal aid body or authority [legal aid board] to provide, administer, coordinate and monitor legal aid services. Such a body should .. be independent of the Government and should not be subject to the direction or control of any person or authority in the performance of its functions … develop, in consultation with key justice sector stakeholders and civil society organizations, a long-term strategy guiding the evolution and sustainability of legal aid.’

Oh, that it were so.

There is, of course, no little irony in unparalleled interest by international organisations like the UN in legal aid just when our provision is in the course of going so comprehensively down the pan. However, we can make maximum use of the persuasiveness of this kind of provision. It is just such a pity that there is not some form of world court which could give it a bit more strength.










About Roger Smith

Roger is an expert in domestic and international aspects of legal aid, human rights and access to justice. Roger is a visiting professor of law at London South Bank University and an honorary professor at the University of Kent. He is a solicitor and has been director of the Legal Action Group, JUSTICE and West Hampstead Community Law Centre as well as director of policy and legal education at the Law Society, London, and solicitor to the Child Poverty Action Group. Roger was awarded an OBE in 2009 and received a lifetime achievement award from the Law Society in October 2012

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