Human Rights and Access to Justice

This paper explores a linked set of contradictions – some of which verge on paradox – about legal aid (defined for this purpose as ‘legal assistance funded by the state for indigent suspects and defendants’). These are: • The right to legal aid is a ‘hybrid’ right in the sense that it imposes a positive obligation of funding on the state, akin to an economic right, although it is an integral part of the civil and political right to a fair trial. • Legal aid, now enshrined in the major comprehensive human rights treaties, actually originated as the result of a variety of causes, by no means all of which reflected any notion of human rights. • For one particular group of countries (those post-socialist states which have achieved independence in the aftermath of the break up of the Soviet Union), human rights have been a conscious driver of change. However, for almost all of these countries, the immediate driver for reform was the prospect of future accession to joining the European Union rather than the mechanisms of the Council of Europe that oversee the structure of the European Convention on Human Rights (ECHR). • The European Union provides an example for an organisation into which a major attempt has been made to integrate human rights into its constitution and this has both made it a powerful enforcer of rights in relation to countries on its eastern border but is now attracting the resistance a group of countries led by Ireland and the United Kingdom on its western border – both of which have actually have relatively well established legal aid schemes.