As with any of my articles, I write purely in my own capacity as a human being rather than as a representative of anyone, and this is particularly true in this case. I don’t speak for anyone other than myself.
I have become aware recently of the move in Courts (not all of them, but a worrying number) to restrict the public’s access to Public Counters.
What happens at these Public Counters? (or what used to?)
People would come in, people who had been served with court papers and were frightened or confused and didn’t know what to do and they would be given help and advice (not legal advice, but they would be pointed to where to get that advice from), people would come in and hand in the court paperwork they had filled in – and double-check that they hadn’t made a mistake with it that might otherwise delay things by weeks, people would come in to get leaflets and guidance, people would come in to explain to the Court that the hearing date that they’d just received in the post wasn’t possible for one reason or another, people would come in to issue their applications, to pay their fees, to hand in the raft of documentary evidence that would prove that they didn’t need a fee.
Those people can sometimes be hesitant, tentative, confused, dumbfounded, bolshy, argumentative, difficult, time-consuming, obnoxious or terrified. Sometimes all at once. Sometimes they come to the Public Counter in dribs and drabs, sometimes as battalions.
Since LASPO was introduced, a lot of these people who would have had lawyers to help them resolve these concerns and fears and worries and to answer their questions and to give them the right forms, are now doing it entirely on their own. They have walked into a domain that they don’t understand, with no guide, and the only thing they can really do is ask the locals how people do things around here.
Which is why, of course, access to the Public Counters, becomes even more important – it is the only way that a person who is not legally trained and not able to spend an age on google trying to find things when they have no clue what they are looking for, can find out how to make a start on dealing with the Courts.
That in turn, placed a higher demand on Court staff – and I’m sure at the same time as this due to austerity measures Court staff and budgets were cut leaving them all having to do more with less.
And that is probably why so many Public Counters moved from being open from 10.00 am to 4.00pm to being open for half a day, to being open for only prior appointments and urgent cases, to this current situation where you can walk into certain Courts in this country and see a door that says “Public Counter” on it, but the door is locked.
I don’t, personally, feel very happy about that. I don’t, personally, think that this is a very good thing at all. I think, personally, that this is a poor way to treat litigants in person who now have nobody to help them penetrate the thickets of complexity and jargon and bureaucracy that faces anyone trying to conduct Court proceedings for themselves. I can understand the thinking behind it – to let the hard-pressed Court staff get on, uninterrupted, with the huge volume of work they have to do and deter members of the public from coming in and asking questions and creating additional work. I understand it, but I don’t like it.
That made me turn to the recent High Court decision on the Lord Chancellor’s introduction of a “Residency” test to get legal aid. This was a statutory instrument, created under LASPO powers (or rather, it purported to be, but wasn’t), that would take the cases where legal aid WAS still available, and make them available only to people who could show that they had lived in the UK for twelve months.
The Queen on the Application of the Public Law Project v the Secretary of State for Justice 2014
It is a great judgment, because it upholds the rule of law, upholds rights and gives some very real concrete examples of people and cases who wouldn’t get legal aid if the “Residency” test came into being. It completely rejects the statutory instrument as being lawful and makes it plain that there was no power for the Lord Chancellor to introduce these measures, which were purely discriminatory.
It is also worth reading for this bit, which might well be the rudest that any Court has ever been to a sitting Lord Chancellor, and rightly so.
It is and was beyond question that the introduction of such a test is discriminatory. The test is more likely to be satisfied by a United Kingdom national than a national of another member state (a reference to the habitual residence test in Patmalneice v SSWP  1 WLR 783 at paragraph 35). The Government has accepted that it will be “easier for UK citizens to satisfy than other nationals” and that it “falls within the ground of national origin as specified in Article 14”. Indeed, that is its declared purpose. “We have made it absolutely clear”, said the Parliamentary Under-Secretary of State, “that for the residence test it is important that they are our people – that they have some link to this country” (18 March 2014). That is the justification for the test that is proffered, that it is designed to restrict legal assistance to those with a closer connection to the United Kingdom than foreigners. The Lord Chancellor has said as much to the Joint Committee on Human Rights: “I am treating people differently because they are from this country and established in this country or they are not” (26 November 2013).
Unrestrained by any courtesy to his opponents, or even by that customary caution to be expected while the court considers its judgment, and unmindful of the independent advocate’s appreciation that it is usually more persuasive to attempt to kick the ball than your opponent’s shins, the Lord Chancellor has reiterated the rationale behind the introduction of the residence test, in the apparent belief that the Parliamentary Under-Secretary had not been as clear as he thought he had been :
“Most right-minded people think it’s wrong that overseas nationals should ever have been able to use our legal aid fund anyway, and when it comes to challenging the action of our troops feelings are particularly strong…We are pushing ahead with proposals which would stop this kind of action and limit legal aid to those who are resident in the UK, and have been for at least a year. We have made some exceptions for certain cases involving particularly vulnerable people, such as refugees who arrive in the UK fleeing persecution elsewhere. But why should you pay the legal bill of people who have never even been to Britain?
And yes, you’ve guessed it. Another group of Left-wing lawyers has taken us to court to try to stop the proposals” (Daily Telegraph 20 April 2014, sixteen days after the argument had been concluded).
But the bit that I was particularly interested in, given the locked door that I have to walk past every time I go to Court was this paragraph
56.The constitutional right of access to the courts was further considered by the Court of Appeal in R (Children’s Rights Alliance for England) v Secretary of State for Justice  1 WLR 3667. Again, the case is not concerned with discrimination. It decided that the obligation to provide a right of access to the courts did not include an obligation to find and provide information as to legal rights to those with potential claims. The constitutional duty was described by the Court as a duty not to “place obstacles in the way of access to justice” (at paragraph 39). That description of the nature of the duty, that it is a duty not to impede access to the court, is binding on this court
The State has a duty not to place obstacles in the way of access to justice. Last time I checked, a locked door was an obstacle.
Those Courts that have locked the door to the Public Counter have a sort of triage system, whereby a member of the public can get in by prior appointment, or by convincing a member of the Security staff who man the doors (and search people for knives, alcohol or drugs) that they should be let in. If that person doesn’t happen to WANT to discuss their personal and private business with a security guard, or in an open waiting room where there might be people coming in at any time or queuing to undergo their searches, aren’t going to get in.
Might THAT be Her Majesty’s Court Service placing an obstacle in the way of access to justice?
Bearing in mind that one of the reasons to go to the Court Public Counter is to get your application form to start your case, so that you can get justice, or to deliver your form to court staff and make sure that there is nothing in the form that you have filled out wrong because you didn’t understand it.
If Barclays Bank (other banks are available), decided that during office hours they were going to keep their Public Counter behind a locked door, I’d think that was pretty awful customer service. But at least Barclays customers could vote with their feet and go elsewhere. The people wanting to use the Courts Public Counters don’t have that luxury.
I am aware that there are those in the Ministry of Justice floating the ideas of Courts becoming ‘information hubs’ where the public can go to find out in one place everything they need to know to resolve their disputes, probably by resolving them without ever going before a Judge. I wonder if those information hubs will have locked doors too?