Legal Aid – European Perspectives

On 25-26 April the European Criminal Bar Association held its spring conference in Warsaw, hosted by the Warsaw Bar Association. The theme of the conference was ‘Legal Aid – Privilege for Criminals or Essential for Fair Proceedings’.

The ECBA was founded in 1997 by Professor Franz Salditt, of the German Bar Association, and Rock Tansey QC from the UK, to enable criminal lawyers across Europe to meet, share experiences, and discuss matters of common interest. It has produced a large number of policy documents, which have been used to assist and inform decision-makers in national jurisdictions, and in the European Commission.

The occasion of the Warsaw conference was discussion of the Proposed Directive of the European Parliament on Provisional Legal Aid for Suspects or Accused persons deprived of liberty and Legal Aid in European Arrest Warrant Proceedings  Com (2013) 824, and the European Commission’s Recommendation on the right to legal aid C(2013) 8179/2.

 The 80 or so delegates came from 18 countries:

Austria

Belgium

Estonia

Czech Republic

France

Germany

Ireland

Latvia

Lithuania

The Netherlands

Norway

Poland

Portugal

Russia

Serbia

Slovakia

Sweden

UK

They included practising lawyers, judges, academics, and policy makers: of these, Tomasz Darkowski, a senior official in the Polish Ministry of Justice, described the budgetary implications for Poland of decisions to widen the scope of legal aid, and Michele Coninsx, the President of the EU body, Eurojust, that oversees the European Arrest Warrant (EAW responded to criticisms that the EAW is used disproportionately for minor offences and lacks procedural safeguards and proper provision for legal aid.

What was striking during the formal presentations and discussions, and informal conversations around them, was how colleagues across Europe not only face the same problems as we do in the UK, but that we have the same common underlying values.

We all perceived the decent provision of legal aid to criminal suspects and defendants as something fundamental to the rule of law, without which there can be no meaningful access to justice; without access to justice, the rule of law suffers; without highly competent and fairly rewarded defence lawyers, the state will abuse its powers; the rule of law may not be an end in itself, because we may be ruled by harsh and oppressive laws, but it is surely a necessary condition for liberty to flourish, if not a sufficient one. For the delegates whose countries have recently emerged from dictatorship and satellite status, these values must have been more potent and immediate than for those of us accustomed to a high degree of freedom.

They in particular will have been aware of how fragile liberty can be – when one of its strands is weakened, the whole thing begins to totter.

My small contribution to the work of the eminent scholars and jurists at the conference (I’m not a jurist, or a scholar, or eminent) was a paper reporting in summary form on the rise and fall of legal aid in the UK, from 1949 to 2014, and the political forces which shaped it and are now destroying it.

The UK was once looked to as a beacon of justice by providing legal aid for those who could not pay for advice and representation. I fear that it will soon be seen as a model for how to do the opposite. We must not forget that the destruction of legal aid is a political act, driven by two forces: first, the need, as Kenneth Clarke saw it when he was Minister of Justice, not to ‘leave untouched a system that has grown astonishingly, making the poor extremely litigious’; second, to claw back power to the executive, by measures such as the restrictions on judicial review and the use of secret evidence in civil cases, which put administrative acts out of the reach of proper legal scrutiny. The financial crisis was a useful but mendacious alibi to justify a massive attack on access to justice across the board, which is what cutting legal aid means.

European colleagues gasped when they heard the Clarke quote, and gasped again when told that our present Minister of Justice has no legal experience or training whatever. Poland, the venue of limitless cruelty and horrors in the 20th century, values its hard-won freedoms and knows how precious and precarious they are. Do we?

 

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About Francis FitzGibbon QC

I am a QC and member of Doughty Street Chambers, London (www.doughtystreet.co.uk) & an associate member of Trinity Chambers, Newcastle (www.trinitychambers.co.uk). Chair of the Criminal Bar Association of England & Wales. I practise criminal law. Please do not look for legal advice in this blog as you won't find any. The views expressed here are entirely personal.
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