IN light of the controversy that surrounds High Speed 2 (“HS2”), it was predictable that a Supreme Court decision considering the proposal's legality would draw wider interest, however dry and technical the legal questions at issue. Less predictable, perhaps, was that when the decision did appear, as it has done in the form of R. (on the application of HS2 Action Alliance Ltd.) v Secretary of State for Transport and another [2014] UKSC 3, it would feature dicta that could potentially have much broader constitutional implications.
The appellants challenged the Government's decision to promote HS2 on two principal grounds. The first was that the decision should have been preceded by a strategic environmental assessment which detailed “the likely significant effects on the environment of implementing” the HS2 project, as well as “reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme” by virtue of EU Directive 2001/42/EC (OJ 2001 L 197 p. 30) (“SEA Directive”), Articles 4 and 5. The second was that the hybrid bill procedure proposed for the enactment of the proposals, which will include an additional select committee stage in both Houses of Parliament so as to give relevant objectors the chance to be heard, did not comply with the procedural requirements of Directive 2011/92/EU (OJ 2012 L 26 p. 1) (“EIA Directive”), Article 6(4), which demands a certain level of effective public participation in the decision-making process of any plan or programme likely to have a significant effect on the environment. Underlying both of these claims was an ancillary question as to whether either issue should be referred to the Court of Justice of the European Union (“CJEU”) through the preliminary reference procedure.
The Supreme Court unanimously rejected both the appeal, and the opportunity to refer either issue to the CJEU. The suggestion that a strategic environmental assessment should have been carried out was rejected on the basis that at least one of the preconditions required for such an assessment to be compulsory, namely that the document announcing the decision to promote HS2 “set the framework for future development consent” in accordance with Article 3(2)(a) of the SEA Directive, was absent. As much as the document might be highly influential over any subsequent legislative debate about HS2, their Lordships understood Article 3(2)(a) to require that it not just be influential, but that it actually operate as a constraint on Parliament's decision-making process when it comes to deciding how to proceed (Lord Carnwath at [38]; Lady Hale at [155]). The appellants had argued that such a reading would create inconsistency between the SEA Directive and Article 7 of the Aarhus Convention, but this was rejected by Lord Carnwath (at [50]–[52]).
The supposed incompatibility of the hybrid bill's procedure with the EIA Directive ultimately came down to whether the Directive's objective – that prior to giving its consent, a national legislature give due consideration to a scheme's environmental impact – would still be attained under the modified legislative approach. If so, the Government would qualify for an exemption from the Directive's requirements by virtue of EIA Directive, Article 1(4). The Court found that the proposed procedure would fulfil the Directive's objectives on the basis that the two conditions laid down by the CJEU – that the legislature's role in the adoption of the scheme must be substantive rather than just formal, and that appropriate information is available to legislative members at the time the proposals are brought forward – were both satisfied. Not only will any draft bill brought forward to gain legislative approval of the HS2 scheme be actively debated by Parliament before consent is given, but standing orders in both the House of Commons and the House of Lords will also serve to ensure that appropriate information pertaining to the proposals is made available to members (Lord Reed at [98]–[99]). An alternative interpretation of the Directive's requirements based on opinions of Advocates General Sharpston and Kokott, which the applicants had suggested required the Court to conduct a qualitative assessment of the process, was rejected, as was a suggestion that the timing of the application was premature.
In other circumstances their Lordships might have left it there. However, motivated by concerns over the CJEU's interpretative approach to the two Directives, Lords Neuberger and Mance offered some observations on what might have happened had the case before them been a little different. Of most interest for present purposes is what they said about the approach the Supreme Court might have adopted had they been required to scrutinise the legislative process in a similar way to that suggested by the appellants. This might have created a problem in the context of the United Kingdom, as it might have conflicted with an important, if not fundamental, aspect of the UK constitution – Article 9 of the Bill of Rights 1689 – which is conventionally understood to impose severe limitations on judicial scrutiny of Parliament's internal workings. Perhaps Article 9 can be understood to permit judicial inquiry into the information placed before Parliament to an extent necessary to comply with a more expansive interpretation of the EIA Directive's requirements, by, for instance, adopting a similar approach to that taken in Bank Mellat v Her Majesty's Treasury (No 2) [2013] UKSC 39, [2013] 3 W.L.R. 179 (noted [2013] C.L.J. 491). If not, does European Union law reign supreme when it comes into conflict with what is generally perceived as a fundamental aspect of the UK constitution?
Though no definitive answer was given, what is clear from the Supreme Court's decision is that it is a matter of domestic as opposed to European Union law, to be determined by the domestic courts. Moreover, for two reasons the answer is not found by merely applying R. v Secretary of State for Transport, ex p. Factortame Ltd. (No 2) [1991] 1 A.C. 603. First, because, as Lord Reed concluded, Factortame concerned a conflict between substantive provisions of directly effective European Union law and domestic law, whereas in the present case the conflict would be between procedural requirements of European Union law and domestic law (at [79]). Second, because, according to Lords Neuberger and Mance, Factortame concerned a potential conflict between directly effective European Union law and an ordinary statute, whereas in the present case the conflict would be between directly effective European Union law and a constitutional statute, constitutional instrument, or constitutional principle (at [207]–[208]).
For a long time, the absence of a formally enacted constitution in the United Kingdom ensured that the notion of domestic constitutional limits constraining either Parliament or the European Union was largely downplayed. More recently, of course, it has become increasingly common to suggest that varying types of limits now exist following the rise of ideas such as common law constitutional rights, and judicial statements such as those contained in R. (on the application of Jackson) v Attorney General [2005] UKHL 56, [2006] 1 A.C. 262 and AXA General Insurance Ltd. v Lord Advocate [2011] UKSC 46, [2012] 1 A.C. 868. The judgment of Lords Neuberger and Mance might be understood to further this claim by adding support to the idea that domestic law recognises certain law as being “constitutional” in nature, whether it be grounded in common law or statute, and that this law is harder to displace than ordinary law. It will be remembered that a similar claim was made in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] Q.B. 151, when Laws L.J. proposed a category of constitutional statutes which are immune from implied repeal. But before rushing into any extravagant claims about whether the existence of this special category of law or enactment has now been confirmed, it might be prudent to note that pigeonholing certain aspects of our law as “constitutional” may well only serve to create a layer of formalism where none is needed. Rather than distract themselves with questions as to the fundamental nature of the law potentially conflicting with EU law, and what qualifies as a “constitutional” law, which could in turn easily lead to awkward interpretative backpedalling at a later date, the judiciary would surely be better to focus their efforts on evaluating the different principles engaged in a particular dispute so as to come to a conclusion as to their relative merits in whatever particular contextual situation they are engaged. The result of any case would no doubt remain the same, but unnecessary and potentially awkward questions about what qualifies as a constitutional law of the type that can limit European Union law would be put to one side.
Perhaps this case will turn out to be little more than a shot across the bows of the CJEU. Certainly, given that this is the first time the issue has arisen since the enactment of European Communities Act 1972, it would be surprising if the issue arose before a domestic court again in the immediate future. In the meantime, the idea that European Union law will not always override national law, and that the UK now formally separates between constitutional law and other law, will no doubt continue to spread. Whatever the latter's intuitive appeal, we should be careful not to weigh ourselves down with deceptively rigid rules when the same result could be achieved through much simpler means.
