united-kingdom
Challenging Legal Basis of Law
<p>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.</p>

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

<p>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.</p>

<p>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. </p>

<p>How could such a situation be used to challenge said law in court.</p>

<p>Thanks </p>

<p>Parliament in the UK is <a href="http://www.parliament.uk/about/how/sovereignty/" rel="nofollow">sovereign</a>:</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>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passed a law saying that it was a crime for "a black American woman sat at the front of the bus" and provided that it repealed all existing laws that would invalidate that law (e.g. the European Charter of Human Rights); then there is no defence to that crime if the prosecution proves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.</p>

<p>In the UK there is no <em>higher law</em> 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 <em>political</em>, not <em>legal</em>.</p>

<p>The Data Retention and Investigatory Powers Act 2014 was ruled unlawful by the <a href="https://www.judiciary.gov.uk/wp-content/uploads/2015/07/davis_judgment.pdf" rel="nofollow">UK High Court</a>. 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.</p>

<p>It's always possible to argue that a certain law is not valid. Though this does not mean that much notice will be taken of it.</p>
<p>However, if it's a well constructed argument then it will be passed up from lower courts until it reaches the Supreme Court where they can rule on it.</p>
