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In broad general terms, under UK law, how would you begin constructing a defence that questions the validity of the law you are being charged under.

For instance say I was a black American woman sat at the front of the bus, and I was charged as such.

I don't wish to plead guilty of the non crime of being a black American at the front of the bus, neither do I want to deny that I did nothing wrong by sitting at the front of the bus.

I'm asking generally as a lay person concerned about recent developments in the UK, under the assumption that a legal system must contain some checks and balances to allow the electorate to challenge laws passed by the state if they feel the state has overstepped it's boundary and passed a dangerous law. Breaking said law and being arrested as such as an act of civil disobedience will obviously result in a criminal hearing.

How could such a situation be used to challenge said law in court.

Thanks

  • Often in these cases, the law will infringe on a constitutional or human right. I'm not going to give an answer since I don't know uk law, but in Canada, if a law were to infringe on the Charter of Rights and Freedoms (such as s.2 - fundamental freedoms), the court will strike down the law and bring it out of force for being unconstitutional. – Zizouz212 May 16 '16 at 20:23
  • @Zizouz212 The UK doesn't have a written constitution, though. It has a much stronger tradition of parliamentary sovereignty, and the general rule is that Parliament can't bind future Parliaments. – cpast May 16 '16 at 22:10
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The Data Retention and Investigatory Powers Act 2014 was ruled unlawful by the UK High Court. The decisions holds, while acknowledging that "At common law, Acts of the United Kingdom Parliament are not open to challenge in the courts", that "Decisions of the CJEU [Court of Justice of the European Union] as to what EU law is are binding on the legislatures and courts of all Member States". There is a treaty obligation to obey e.g. the European Convention on Human Rights to which the UK is a signatory, or Articles 7 and 8 of EU Charter. The court held that DRIPA was contrary to EU law, as clarified by the CJEU in the case "Digital Rights Ireland" (appended to the court's decision). As I understand it, and in contrast to court rulings about laws in the US, this ruling is basically a suggestion, and is not enforceable.

  • It couldn't be enforced without denying the right of trial by jury anyway. – Joshua Sep 19 '17 at 15:23
  • @Joshua But the right of trial by jury -- while unquestionably supreme philsophically (in the English-speaking world) -- isn't protected by any kind of higher statute. If Parliament passes a law that restricts or denies trial by jury, that may be a gross violation of tradition and politically unpopular, but it's still the law, and still enforceable. – owjburnham Sep 20 '17 at 9:05
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Parliament in the UK is sovereign:

Parliament [is] the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change.

If parliament passed a law saying that it was a crime for "a black American woman sat at the front of the bus" and provided that it repealed all existing laws that would invalidate that law (e.g. the European Charter of Human Rights); then there is no defence to that crime if the prosecution proves the elements beyond reasonable doubt i.e. that you are a) black, b) American, c) a woman and d) sat at the front of the bus.

In the UK there is no higher law that can be appealed to like a constitution. Over the years, UK parliaments have passed laws limiting their sovereignty, however, any current or future parliament could (in theory) repeal those limits. Just like the USA could (also in theory) repeal the Bill of Rights amendments to their constitution (or even replace the Constitution as a whole); albeit the process is different and less likely to succeed. The limitations on this are political, not legal.

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    There's an important difference to the US: The Bill of Rights cannot be repealed through ordinary legislation, and the federal government can't do it by themselves (the states could do it by themselves, but never have). Likewise with Canada: notwithstanding clause aside, the amendment process is complicated and many amendments require some number of provinces (in some cases, all provinces) to agree. UK legislation can be repealed through ordinary acts of Parliament. – cpast May 17 '16 at 2:47
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    Of course the UK has a constitution: it is frequently discussed at the Supreme Court level. It is unwritten, but so what? One obvious element is that a law abolishing limits on Parliament would never get Royal Assent. – Tim Lymington Jan 9 '17 at 22:24

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