Viviane Reding is a tough cookie. Now EU commissioner for justice, freedom and security, she previously saw off the mobile phone companies and reduced their charges. France is smarting under the lash of her comparison of its Roma policy with that of Hitler’s Germany. And now she threatens to get her teeth stuck into legal aid.

Her European Commission justice directorate is making a bid to be the enforcer of fair trial rights in EU member states. As Ken Clarke wriggles to deliver his cuts package, Reding may yet emerge to play a role. She has a proven taste for a deadly combination of publicity and results.

Reding presents Clarke with a multi-layered problem. He needs to quickly slash and burn a quarter of his legal aid budget. He does not need the European Commission enforcing decisions of the European Court of Human Rights that protect criminal legal aid. It adds irony that, personally, Clarke is pro-European enough to have dismissed David Cameron’s attacks on the European Convention on Human Rights as ‘xenophobic nonsense’. It is Reding’s championship of a programme of measures designed to protect suspects’ rights that brings the EU into the debate. The EU’s programme was championed during the Swedish presidency of the EU and, after EU practice, is for ever afterward referred to as the ‘Swedish roadmap’.

The Swedish roadmap seeks to protect five key elements of suspects’ rights. The EU is involved because, after 9/11, it signed up to a programme of mutual recognition of judicial decisions within the EU. This began with the European Arrest Warrant, a form of expedited extradition which the UK implemented in the Extradition Act 2003. Balancing measures to protect the rights of suspects were to follow.

The UK generally has rather good protection for rights, and its legal aid is much better than in most other countries. UK politicians are also profoundly aware of the poor publicity that arises from cases where UK citizens are sent to countries where they might not get a fair trial. Anything that brings up standards overall would, therefore, be desirable for them. However, the UK is traditionally paranoid about incursions into its sovereignty – certainly when these might impinge on its ability to cut expenditure rather than expand its power. So, it is suspicious of the EU coming to the aid of the Council of Europe to enforce suspects’ rights. It would prefer the looser and less systemic supervision provided by the European Court of Human Rights through individual cases that only manage with difficulty to clear the hurdles of delay, cost and complexity on their laborious way to a hearing in Strasbourg.

Thus, the fate of Reding’s programme of pro-defendant measures at the hands of the UK is always uncertain. They are subject to intense speculation until the last moment as a result of the option for the UK to opt out secured in the Lisbon Treaty. The first instrument in the Swedish roadmap (known as measure A) was on interpretation and translation. It slipped through in the early days of the coalition as Clarke signed it off when no one was geared up to object. Both the Law Society and Justice have been sufficiently concerned about the fate of measure B on notification of rights to have mobilised last minute lobbying. Its fate will be announced imminently. UK citizens arrested abroad should get notice of their rights in the same way as at home.

Measure C covers legal assistance and legal aid. This is at a preliminary stage and an experts’ meeting discussed it last week in Brussels. The Brits traditionally have a good presence at this sort of event. Indeed, the Law Society is the only national professional organisation effectively to be represented three times – by its own excellent Brussels office, the CCBE (the Council of Bars and Law Societies of Europe) and the ECBA (the European Criminal Bar Association). As a disinterested observer, I can report that your professional body more than pulls its weight. On the table was a discussion of how the commission might enforce the guarantee of legal assistance and legal aid in article 6 of the European Convention. This has become particularly edgy for member states now that the European Court of Human Rights is clear that the right to legal representation bites at the point of police interview. Scotland, Belgium, France and the Netherlands are all in intense internal discussion about how to become compliant. At this point, Clarke’s Europhilia might get strained. He is known to have eyed the police station duty solicitor scheme for savings. Cut criminal legal aid too much and it may raise questions as to whether the UK continues to meet convention standards.

At the expert’s meeting, Reding’s officials made a pre-arranged play. What, they said, if we split the right to have a lawyer from the right to require the state to pay a lawyer? We could deal with each separately? ‘Nice try,’ replied the member states. Negotiations continue. A number of countries have an interest in spiking any requirement to fully meet convention fair trial standards. Do not get arrested, for example, in Belgium or Hungary. However, recalcitrant countries may yet encounter the sharp tongue of Reding. She is likely to be particularly concerned at backsliding by the state that has hitherto been a beacon of good practice. She isn’t scared of Nicolas Sarkozy so it is unlikely that the prospect of upsetting David Cameron keeps her awake at night. We may yet need her intervention to help save decent criminal legal aid provision.

Roger Smith is director of the law reform and human rights organisation Justice