Legal aid now underpinned by international principles
There was a welcome development on legal aid this week, from of all places the United Nations. Legal aid is of course something usually dealt with at national level, and there are wide divergences in national treatment and national expenditure. The European Union has tried to introduce European standards for criminal legal aid, but they are feared to be so controversial that they have not so far been tabled: they were separated from the ‘right to a lawyer’ proposal now being discussed, and they are being pushed into 2013 because they do not chime with the current ‘Justice for growth’ initiative.
So the United Nations has stepped into the breach, with new ‘UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems’. Before describing the content of the principles, it is worth explaining the importance of documents like this. Of course they do not produce a single penny of money for legal aid. And they are obviously more useful in countries with no or very poor legal aid systems. But they are vital nevertheless in everyday lobbying. For instance, there are already UN ‘Basic Principles on the Role of Lawyers’.
We use them constantly when we write to foreign governments when they are abusing their own lawyers. So article 16 of the basic principles says that ‘governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference’ and article 23 says that ‘Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly.’ We can even use provisions against EU governments if they interfere too much in the running of a bar or law society - for instance, article 24: ‘The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.’
Regarding the legal aid declaration, I shall just comment on those aspects which struck me out of a very long and detailed document. First, the provision of legal aid is not foreseen as being provided only by lawyers: ‘The first providers of legal aid are lawyers, but the principles and guidelines also suggest that states involve a wide range of stakeholders as legal aid service providers in the forms of non-governmental organisations, community-based organisations, religious and non-religious charitable organisations, professional bodies and associations and academia.’ That might be contrary to the policies and practices in a number of EU member states (even if I can see that it might be useful in countries where the legal system is struggling through lack of resources).
Second, the document is divided into principles and guidelines. Under guideline 3 (‘Other rights of persons suspected, arrested, detained, accused, charged with a criminal offence’), there is an excellent encouragement to states to introduce measures covering the broad front of minimum procedural safeguards, rather like the EU’s own version: right to information on the right to remain silent; right to be assisted by a lawyer, including during interview; right to contact with consular authorities; right to notify family; right to interpretation and translation; and so on.
Third, the extent of the document is rather wide: for instance, ‘the term "legal aid" includes legal advice, assistance and representation for persons suspected, arrested, accused or charged with a criminal offence, detained and imprisoned and for victims and witnesses in the criminal justice process.’ It is interesting that it covers victims and witnesses, too.
The document was adopted at the end of April by the UN Commission on Crime Prevention and Criminal Justice. It is due to go the General Assembly in November. (My organisation, the Council of Bars and Law Societies of Europe, will now study it.) The infamous John Bolton once said that if the UN secretariat building in New York lost 10 storeys, it wouldn't make a bit of difference. Well, it would if the part housing legal aid policy went. We would have lost an invaluable document.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs