The debate on the European Unions’s proposed directive on the right to a lawyer at all stages of criminal proceedings is hotting up. The Gazette covered the recent parliamentary motion tabled by the government where the justice secretary recommended that the UK opt out of the draft directive. The motion was supported by the House of Commons by 303 to 192.

Now the UK has put its name to a note supported by four other countries (Belgium, France, Ireland and the Netherlands) launching a variety of criticisms of the proposal. So the UK not only wants to opt out, it also wants to ensure that UK citizens arrested in other member states do not benefit from improved rights.

Would not opting out have been enough, if all they wanted was to ensure that UK law was not affected? Why would a government wish to ensure that its citizens do not benefit from maximum protection when arrested abroad? Is such protection not one of its core duties? As the shadow spokesman pointed out at the time of the Commons debate, the UK’s current law is in any case broadly in line with the directive’s requirements. It seems churlish both to opt out and to try to block the measure applying elsewhere.

As to the note itself, the five countries - rather like a QC repeating 'with respect’ before every argument insulting counsel on the other side - begin with an account of their total and slavish devotion to fundamental rights in general, and the right to a lawyer in particular. 'For these reasons,' they say, 'it is essential to get this directive right.'

They then give four reasons why they disagree with the current draft. The CCBE is looking into the arguments so as to issue a properly argued rebuttal. However, the first three arguments do not strike me as sufficient justification for the group’s paper, meaning they are exactly the kind of traditional matters to be raised in negotiations (which is not to say I agree with them).

For instance, the paper argues that the right to a lawyer should not necessarily exist at all stages of the proceedings (say, when fingerprints are taken, which is an example used by the government in the House of Commons) or regardless of the gravity of the charge. Again, the five countries argue that the right to a lawyer is not the only factor to be taken into account when measuring access to justice, since issues such as maximum police detention and speed of being brought to trial should also be considered.

Finally, the note requests that the Commission explain exactly where the new rights depart from the case-law of the European Court of Human Rights, and what the impact of such departure would be.

No, the main part of the paper - the wrecking proposal - comes at the end when the following appears: 'The relationship between rules on access to a lawyer and rules on legal aid needs thorough political discussion. Any directive on the right of access to a lawyer should take into account the consequential costs and implications for member states’ legal aid systems.'

Legal aid was deliberately separated from the proposal on the right to a lawyer because of its complexity and politically controversial nature. Anything which is attached to the right to legal aid is likely to have a very difficult time passing, particularly in the current economic climate. The desire to attach legal aid to the right to a lawyer shows a wish to see the proposal sink out of sight.

Of course, there are cost implications for the current draft, but that has been true of all the measures which have been passed so far. (And, as the Commission points out, the draft directive would in any case reduce costs incurred by appeals to the European Court of Human Rights in Strasbourg by an estimated €11m for all member states over 10 years.)

It may be that the UK, far from wishing to opt out, is seeking to amend the draft directive to make it acceptable. Then it would be good to know its minimum terms. But to opt out and seek also to block - when its own citizens can only gain from the directive being passed by the remaining member states - is inexplicable.