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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

19 MAR 2014

R (on the application of HS2 Action Alliance Limited) and others v the Secretary of State for Transport and another.

The context

This case was a joined appeal of three applications for judicial review concerning the Government's plans to develop a high speed rail link between London and the north, also known as HS2. The appellants contended that the Government command paper, "High Speed Rail: Investing in Britain's Future - Decisions and Next Steps" should have been accompanied by a strategic environmental assessment under Directive 2001/42/EC (‘the SEA Directive') and that the proposed legislative procedure in that command paper did not comply with the requirements of Directive 2011/92/EU (‘the EIA Directive').

The development of a second high speed rail link in Britain is highly controversial, and strong views have been expressed both for and against its introduction. In their command paper, the Government set out its firm intention to proceed with the proposals, explaining that a hybrid bill procedure would be used, and indicating that issues of principle (such as the business case for HS2, alternatives to the project and alternatives to the first train route) would be excluded from select committee consideration. It has also been proposed that the votes on the Bill at second and third reading will be subject to a Government Whip, which means there will be little scope for members of the Coalition parties to vote against the Bill.

The main concern of the appellants was that the Government had not given sufficient consideration to the possible alternatives to HS2. In particular, two were strongly in favour of what is described in the case as the "optimised alternative" - improving existing tracks and carriages rather than creating a new high speed link. By the time the case reached the Supreme Court, many of the issues between the parties had been agreed. The remaining issues for the court centred on a narrow point of statutory interpretation in relation to each Directive, which can be summarised as follows:

(1)     What is meant by a "plan or programme which sets the framework for development consent" in the SEA Directive?

(2)     What is the effect of the words "since the objectives of the Directive...are achieved through the legislative process" in the part of the EIA Directive which exempts specific acts of national legislation from the scope of its application?

The judgments

The seven Justices of the Supreme Court broadly agreed on how the case should be decided. The whole court agreed with Lord Reed's explanation as to why the hybrid bill did not violate the requirements of the EIA Directive. He noted that the interpretation of this Directive by the Court of Justice of the European Union (‘CJEU') could render the exemption meaningless, as the CJEU has interpreted the word "since" to mean "as long as". A specific act of national legislation will only be exempted from the Directive if it fulfils the objectives of that Directive. However, the case law of the CJEU qualifies this; a specific act of national legislation will be exempted if it is adopted through a substantive legislative process, and the appropriate information regarding environmental impact is available to members of the legislature at the time when decisions are made on whether to adopt the project. Lord Reed held that both of these requirements were satisfied in the case of the proposed hybrid bill procedure.

Lord Carnwath's judgment, which all the judges except Lady Hale agreed with, set out why the command paper was not a plan or programme for the purposes of the SEA Directive. Although the paper set out a project that would clearly have significant effects on the environment, it could not be said to set the framework for development consent, since it did not have any effect on the freedom of Parliament to decide whether to adopt the project or not.

Both Lord Reed and Lord Carnwath held that the case law of the CJEU was clear enough to preclude any question of a reference to that Court on issues of EU law. The judgment of Lord Sumption and a joint judgment of Lord Neuberger and Lord Mance detailed further why the acte clair doctrine applied in this case. Lady Hale was more tentative, indicating that she was at one point attracted to the suggestion that a reference be made to the CJEU on the interpretation of the SEA Directive. However, for practical and legal reasons she was persuaded that such a reference was unnecessary.

Wider issues

The case raises a number of wider issues, three of which will briefly be touched on here.

First, an additional question was raised in court as to the timing of the judicial review. The Government argued that it was constitutionally inappropriate to review whether the hybrid bill procedure fulfilled the requirements of the EIA Directive at this stage, since this would involve making assumptions about the Parliamentary process and what would be discussed in Parliamentary debates.

Lord Reed dismissed these concerns, holding that it was correct to hear the review at this stage for both practical and constitutional reasons. In practical terms, the Parliamentary procedure will be costly and time-consuming, and it would be better for the point of law as to the effect of the EIA Directive decided before further time and expense are incurred on the basis of a mistaken understanding by Government. Holding the review at this stage would also not, as was contended by the Government, encroach on parliamentary sovereignty and undermine the separation of powers, as it only involved a point of legislative construction concerning the EIA Directive. In fact, holding the judicial review at a later stage might be more likely to raise constitutional issues, if it involved an assessment of the adequacy of proceedings in Parliament as they had occurred against the EIA Directive.

Secondly, the court discussed the acte clair doctrine and when a preliminary reference to the CJEU is necessary. As a court of final appeal for the United Kingdom, the Supreme Court is required to a refer point of EU law to the CJEU unless its application is so obvious as to leave no scope for any reasonable doubt as to how the question raised should be resolved. Although the judges disagreed to a certain extent with the CJEU's interpretation of the Directives, with the joint judgment of Lords Mance and Neuberger in particular being highly critical of the purposive approach adopted by the CJEU, they did not think a reference was appropriate. Even on the wider interpretation of the scope of the Directives adopted by the CJEU, it was clear that an environmental assessment was not required on the facts of the case.

The final, related point concerns the relationship between the CJEU and the highest Member State courts. Lords Mance and Neuberger indicated that if it had been necessary in order to resolve the case, they would have been in favour of a making a reference to the CJEU in the hope that it would reconsider its previous interpretation of the Directives, in a fully reasoned judgment. Lord Reed referred favourably to a co-operative relationship between the CJEU and the highest national courts as suggested by the German Federal Constitutional Court: "a decision of the Court of Justice should not be read by a national court in a way that places in question the identity of the national constitutional order". Drawing on the principle of separation of powers, both judgments suggested that the legislation intention behind the EIA Directive, and the CJEU's interpretation of it, cannot have "envisaged the close scrutiny of the operations of Parliamentary democracy". Although not determinative for the case in hand, the justices of the Supreme Court thus challenged the CJEU's interpretation of the Directives, and asserted their role as guardians of national constitutional principles.

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