BritCits - written submission to Public Bill Committee on Criminal Justice and Courts Bill Date of submission: 28 March 2014

Submitted by: Sonel Mehta ABOUT US 1. BritCits is a human rights charity and campaign group, focused on the rights of British citizens, residents and non-EEA family members. We are especially concerned about UKs family immigration rules and hurdles being put in the way to prevent family unity or those which force citizens into exile. Often judicial review is the only means to keeping the family together so any curbs on this route presents a further barrier for our members and others in similar positions. SUMMARY 2. There are various elements in the CJC Bill which are of concern, because they a) are unnecessary as the current process is working efficiently b) will lead to a system where justice is a privilege only for the rich, leading to a systematic devaluing of parliamentary and judicial processes c) prevent NGOs from collating resources to seek justice where an individual may otherwise not be able to or where such an approach would be in the public interest d) will lead to government departments not being held accountable for not upholding the law e) persecute the most vulnerable f) when combined with the legal aid provision for Judicial Review through the legal residence test, which did not require primary legislation, completely avoids full parliamentary scrutiny not in my view therefore representative of a democracy. COMMENTS ON THE CRIMINAL JUSTICE AND COURTS BILL BY[CLAUSE]: 3. [50 (2A)] The HC/UT would be required to refuse an application for permission to undertake a JR if it is 'highly likely' the outcome for the applicant would not have been substantially different if the reason for wanting the JR had not occurred anyway. Concerns: a) At first reading this seemed sensible to me - what is the point in going through the motions if the end result for the applicant would not have been different anyway? And perhaps this is sensible but the issues here are around the potential for abuse by the side with deeper pockets (particularly where taxpayer funded e.g. government departments) and the timing of the test, which could lead to someone having to fight just for the right to fight for justice, and worse, being forced to give up this right because of the numerous hurdles put in their way - even where both sides agree the law has been broken. This cannot be in the public interest. b) This means a government department could break the law, even knowingly, but not be held accountable for it unless i) the applicant can prove had the government not broken the law, the result would have been different, and/or ii) the government department cannot prove the result would not have been different if they had not broken the law. It's not clear who the onus is on to make this argument, but that this is a discussion that is likely to reach a level of complexity is of concern, but more so is that this discussion is being had before the applicant is even granted permission to have the court hear the impact the breaking of law has had on them. I fear it's likely to let government departments be more lax in not upholding the law simply because the burden of proof is on the other party.

c) Having to prove your case at an earlier stage at the application for permission for the undertaking of JR - is especially onerous. This means more work for your lawyers and therefore more legal fees, before you even know whether or not you are allowed to take your case to court. Made worse by the granting of a PCO after the permission stage (see below). d) "highly likely": how is this defined? Greater than 50%? Greater than 90%? Subjective and very much left to the judge in a 'let's imagine' scenario before they truly have all the facts to hand. Given judges already have the discretion to refuse a JR or stop it at any time they believe it's going nowhere what this is trying to achieve is not clear, but that bullying tactics are being put in place by the government, is. e) What recourse does the applicant have where an application for judicial review is refused? 4. [51 (1)] Applicants are required to provide the HC and UT with info about how they are paying for the court proceedings, as specified in the 'rules of court'. Concerns: a) Do the courts currently have a problem getting people to pay up? Else why this measure? 5. [51 (2) (3A)] In HC and UT, individuals and organisations are required to specify the source, nature and extent available or likely to be available to meet the legal costs. Organisations must demonstrate they are 'likely' to have such financial resources, or provide information about its members and the members' ability to pay up. Concerns: a) This is hugely intrusive. If I have a friend who needs help in paying legal fees and I agree to give them, say, 3000 towards a cause I think is very worthy, it seems my personal details (not clear what this entails) must be declared by my friend. As a private person, this may mean I choose not to help out where I would otherwise - even where the cause is in the public interest. b) As an organisation, BritCits - if we were to take a case to court, this also suggests we have to demonstrate that we are 'likely' to have the financial resources, or, we must provide to the court information about our members and their ability to provide financial support. What does 'likely' mean, and how does one go about demonstrating it? I would also be concerned about sharing membership data - not clear what level of detail, nor who will see this data, nor the limitations, if any, of its usage, nor whether or not it must be with member consent. This requirement alone would prevent us from taking any action against the government, however strong our case. That we could further be asked to declare member financials is yet another barrier. Most organisations such as BritCits will not hold financial information about members. Even where members may donate money, it does not mean they then go on to provide the recipient with their income and assets info. This severely limits ability of organisations such as BritCits to take the government to court - however unlawfully it may be behaving! What this may mean in terms of violation of DPA is also of concern. 6. [52 (1), (2)] The HC, UT and CoA then decide on who pays the costs of the JR, and how much they pay. [52 (3)] The friend/family of a person, or a member of an organisation, whose info is provided to court as someone who has financially helped or could help, may become liable for further costs. Concerns: a) So where in the above example I helped my friend out with 3,000, the Bill allows the court to demand that I then pay even more. The government is not even trying to hide the fact that if someone has the audacity to help someone take (or try to take) them to court for breaking the law,

they will be punished! No matter how good a friend you may have - even where they do not mind the sharing of their personal info with the court and government, it's unlikely they will leave themselves open to being called upon to pay a further unspecified amount of money. This is bullying from a government which seems to forget that it is in place to serve the public, not the other way around. 7. [53 (4) ] This relates to where an intervener is involved in a case. a) An intervener is a third party speaking in support of one side in a hearing; they have evidence they can present to strengthen the case - indeed, the more evidence a court has, surely the fairer the ruling? The intervener pays their own legal in presenting their evidence, so it's not a drain on any of the main two parties. Concerns: b) Imagine a scenario where BritCits is an intervener in a case involving the income threshold imposed on British citizens with non-EEA spouses. BritCits instructs a lawyer, and pays their fees itself - neither of the main two sides pays us or our lawyer. We present solid evidence to show the devastating impact on the lives of our members because of the income threshold. The government has to spend time in finding excuses to refute it. So according to this clause, the government can demand that BritCits pay them for the work they have to carry out because of evidence that BritCits presented. BritCits has no way of controlling or knowing in advance what the governments costs will be; we are just a charity trying to do good. This clause creates a fear factor so that even organisations which use their own money to provide the court with more evidence, to enable a better decision to be made, may not do so lest they be liable for a further unknown amount of money to then cover the government's costs! c) This leads to the prevention of justice by stifling those brave enough to otherwise speak out. 8. [54 (3)] This clause relates to capping of costs i.e. courts can say to you, ok if you lose this case against the government, the maximum you will need to pay in terms of their legal fees is X. This is also known as a Protective Costs Order (PCO). According to the Bill, an application for this PCO would only be possible AFTER permission for JR has been granted. Bear in mind, the application for a PCO alone could cost 5k-10k. Concerns: a) Already established the significant costs likely to be incurred in application for permission for JR, where things which under the existing regime would be discussed in the actual JR are brought forward. Estimates suggest this application stage alone could cost around 30k. So it's imperative that a PCO be awarded BEFORE this stage, else it could prevent someone from assessing whether or not they can afford to take a case against the government e.g. BritCits wants to take the government to court on its family immigration rules. We have limited funds, and so only want to do so if there is a clear cap on the fees we would need to pay in the event we lose the case. b) Under the current regime: We apply for a PCO. If granted at a level we are happy with, we take the case further and apply for permission for JR. If we don't get the PCO, we could stop there, and only lose the money spent on applying for a PCO, which was a reasonably known amount at the outset. c) Under the proposed regime: We first apply for permission for JR, which in itself could cost heaps of money - even 30k. If successful, we then apply for PCO. It could be at a level we're happy with, but if it isn't and we discontinue, it means we have paid possibly 30k for

nothing. Not the best use of charity funds, and hence means we are less likely to ever, under the proposals, be able to take the government to court. 9. [54 (7)] The court to only grant a PCO if the proceedings are of 'general public importance'. Concern: a) How is this defined? Perhaps not really an issue as likely something the courts must currently consider anyway. In which case why is it here as an amendment? 10. [55 (1) (a)] This suggests that before granting a PCO the court must consider the finances of the parties and the finances of those who provide or may provide financial support to the parties Concerns: a) So are courts required to look at all parties involved, even the government, with access to taxpayers funds, in deciding whether the other side should be granted a PCO? b) If you have been able to show that you have the financial means to undertake a JR, either because you have money yourself, or have financial support from friends/family/members, then this is held against you when applying for a PCO, even though being unable to show the evidence of financial means may mean being denied permission for the JR in the first place. 11. [55 (1) (d)] The court must also consider whether the legal representatives are working for free before granting a PCO. Concern: a) So if legal representatives are working for free, is PCO grant more likely, because more are doing it for free, or less likely, as you're not having to pay your lawyers fees? 12. [55 (2)] This clause says that if a PCO is granted i.e. the courts agree that if BritCits lose their JR then they have to pay a capped amount for the government's legal fees, then if BritCits wins, the government's costs in terms of what they pay for legal fees to BritCits is also capped. Concerns: a) This does not seem fair. In the example above, BritCits will have gone to considerable expense to be granted a PCO. Yet the government gets the benefit for free, despite not being lumbered with the same requirements to show a need for a PCO. b) Not clear whether the reciprocal PCO is on identical terms to that originally awarded.