The right to legal aid has evolved in tandem with human rights legislation, says Roger Smith

As the first Legal Aid Bill passed through Parliament in 1949, the government explained its purpose: 'To provide legal advice for those of slender means and resources, so that no one will be financially unable to prosecute a just and reasonable claim or defend a legal right and to allow solicitors and counsel to be remunerated.'

For the legal profession, this has provided a happy conjunction of principle and pragmatism that now justifies state income little short of 2 billion a year.

As expenditure at this level becomes more politically contentious, it may be a good time to examine the human rights justifications for legal aid from the point of view of clients.

The European Charter of Fundamental Rights, much maligned by domestic common law lawyers and populist politicians, provides the clearest right to legal aid of any human rights document, though its application is limited to matters within the competence of the European Union.

Article 47 gives four key rights.

They are: 'an effective remedy before a tribunal', 'a fair and public hearing within a reasonable time' and 'the possibility of being advised, defended and represented', and, crucially: 'legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice'.

Keith Vaz MP, one-time Minister for Europe, once famously remarked that the charter had as much force as the Beano.

But now the charter forms part of the proposed new EU constitution.

It will bind the union and national governments when implementing EU policy.

Thus, it is likely to impact on a limited area of possible disputes.

There are already hints that this may lead to a wider and more persuasive influence.

For example, Mr Justice Maurice Kay has quoted its provisions in one judgment, though acknowledging that the charter was not 'a source of law in the strictest sense'.

The current bedrock human rights justification for legal aid comes through the European Convention.

In its turn, this harks back to the Universal Declaration of Human Rights, proclaimed by the United Nations in 1948.

This stated the core principles that were developed by the European and, later, other regional conventions.

Article 10 of the Universal Declaration gives everyone the right 'to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charge against him'.

Article 11.1 gives a defendant in a criminal case 'all the guarantees necessary for his defence'.

Article 6 of the European Convention expands on these provisions.

It gives the general right to 'a fair and public hearing within a reasonable time by an independent and impartial tribunal' in relation to the determination of a criminal charge or 'civil rights and obligations'.

The European Court of Human Rights has been prepared to infer a right to representation in appropriate civil cases.

However, article 6.3 is of most assistance in detailing a set of specific rights to those facing a criminal charge to:

- 'Have adequate time and facilities for the preparation of his defence';

- 'Defend himself in person through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require', and;

- 'Examine and have examined witnesses against him'.

In some respects, it must be admitted that domestic law is ahead of the convention.

For example, the 'Widgery criteria' on the 'interests of justice', now embedded in the Access to Justice Act 1999, are actually wider than the grounds accepted by the European court.

For example, they specifically allow consideration of whether legal aid for the defendant would be in any other person's interest.

In future, the crunch issue for legal aid may well be the notion of choice of lawyer.

Suppose the government seeks to move beyond the current rather mystifying small experiment with eight somewhat marginal public defender offices to a substantial public defender scheme, more resembling those that are to be found in the US, or to limit contracts to one per area? What degree of restriction in client choice would be acceptable?

For purposes of research, a short period of compulsory use of public defenders was, somewhat controversially, required in Scotland.

The crucial line in the sand may have been correctly stated by the authors of one of the leading texts: 'It is permissible for states to restrict the number of lawyers the accused may appoint, as long as the presentation of the defence is not disadvantageous in relation to the prosecution.'

So, what shield does human rights jurisprudence provide for legal aid? Emergent - and, indeed, rather inspiring - in the case of rights relating to matters within the competence of the EU.

Solid in terms of the European Convention in relation to the right to legal aid in criminal and, to a lesser extent, appropriate civil cases.

Weak, but real, on choice of providers.

Roger Smith is the director of the human rights campaigning group Justice