Reasoning a Human Right to Legal Aid

Abstract

Legal aid advocates look to achieving human rights status as a way of entrenching legal aid, thereby guaranteeing its availability. They make their case in a rhetorical manner, asserting that there is something essentially important about legal aid that it should be accepted as a human right. Instead, the exercise needs to start with being clear about what human rights are and, working back from that, asking whether, when and how the enjoyment of human rights require something that is recognizable as legal aid. In this paper I examine the nature of the relationship between human rights and legal aid, informed by a prior consideration of what each is. After defining their nature and scope, I give a brief account of the well-recognized right to legal aid in criminal matters and analyse the jurisprudence that is emerging for a right to legal aid in non-criminal matters. I conclude that legal aid and human rights have a relationship that in some circumstances renders the ‘standard conception’ of legal aid integral to the enjoyment of some human rights. I question whether legal aid can or needs to be established as a substantive right, and suggest instead that a procedural right to legal aid can be found in other rights, and that broader ideas of legal aid could emerge in this way.