Why are Brits so unsure of their right to challenge government in the courts?

We don’t know our public law in the same way Americans seem to

Due process is a legal term that is often thrown around in American television and media, but few know that it is a right originating in English law that we can still rely upon today.

Essentially meaning that individuals have a right by law to be treated fairly by the state, due process can be traced in English law back to the Magna Carta. The concept was given further clarification by King Edward in a statute enacted in 1354, which stated that no man should be punished in the manners previously mentioned, unless this was determined “by due process of law”. The Bill of Rights 1615 developed due process further.

However, come 1791 the principle of due process in the United States clearly diverged from its roots in English law.

The Fifth Amendment to the Constitution of the United States is as follows:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This incorporated the definition established in English law into the US Constitution and also expanded it. The definition of due process includes a separate procedure for those serving in the military, the prevention of “double jeopardy” meaning a person cannot be prosecuted twice for the same offence, and the right for an individual to refrain from incriminating himself was also introduced. The 14th Amendment also contains a due process clause, ensuring that all persons have the protection of the law no matter their race.

From this point in history onwards, there is a clear divide between the definition and application of due process in England and in the US.

The US Supreme Court has held that there are two categories of due process.

The first is procedural process. This ensures that individuals have their rights protected by a fair and impartial procedure. The second is substantive due process. This is the doctrine that gives the court the ability to strike down any legislation that is determined to be unconstitutional.

This is one of the fundamental differences in the organisation of the state of the US and the UK. The courts in the US are not restrained by legislation that does not comply with principles of the constitution, whereas in the UK the courts are bound to follow the statutes of parliament. If the UK courts set aside primary legislation, this would breach the fundamental constitutional principle of parliamentary sovereignty.

However, this does not mean UK individuals cannot challenge the state.

Procedural fairness is a right that has been established by the courts as being protected by the common law. To maintain procedural fairness, the judicial review procedure allows the courts to examine the decisions of public bodies and ensure that the correct procedure was followed in the decision-making process. This means that individuals can apply to the courts for a determination on whether a public body has acted lawfully, allowing individuals to challenge the decisions of public bodies. This was the procedure used by Gina Miller, who challenged the government’s assertion that Article 50 can be triggered by prerogative power.

There is also a right to a fair procedure given by the European Convention on Human Rights. Article 6(1) states:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…

However, it’s worth noting article 6(1) cannot be relied upon in areas of pure public law, only in situations where the decisions of public bodies interfere with the civil rights of an individual.

There are very few British people who know about these rights, their rights, in the way that Americans seem to. In fact, many of the population seem almost entirely unaware of their rights (which may explain some of the reaction to the recent Brexit Supreme Court judgment).

But even those who claim to know their rights likely could not specifically name them when asked, or would name rights accorded in the US that they have learned from the media. Perhaps this could partially be explained by the Americanisation of our culture.

One other explanation for this discrepancy is the differing levels of education on due process in the two countries. In the US, due process has become a constitutional right that citizens were informed about and could rely upon. The US constitution accords rights to its citizens very clearly. In many states, the constitution is taught in schools, so people are given a greater understanding of their rights at an early age.

Perhaps if constitutional principles were taught in British schools, Brits would have better general knowledge about the rights individuals could rely upon. However, this would be a difficult thing to achieve as the education system is overstretched, and our unwritten constitution is complex and would be more difficult to explain than the more explicit US constitution.

It could also be suggested that there is an underlying difference in social attitudes towards constitutional rights in the UK and across the pond. When I asked an American friend why everyone in the US seemed to know about their rights, she did not attribute it to education, but to the fact that historically those civil rights were fought for, as was their independence. She suggested that Americans know their rights because they are proud of them, and believe that they should be fought for and protected.

There does seem to be a rising attitude in the UK that we should be able to rely upon our rights more. However, until those who cry “I know my rights” fully understand which rights they can rely upon, they will not be able to exercise their rights effectively.

Isabella Evans is a final year law student at Edge Hill University.