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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 Ltd) (Appellant) v The Secretary of State for Transport and another (Respondents); [2014] UKSC 3

A Government command paper setting out the proposals for a high speed rail link between Britain and the north was not a "plan or programme" requiring a strategic environmental assessment. The Hybrid Bill procedure proposed for this project was exempted from the requirement for an environmental impact assessment.

22 January 2014

Supreme Court

Lord Neuberger (President of the Supreme Court), Lady Hale (Deputy President of the Supreme Court), Lord Mance, Lord Kerr, Lord Sumption, Lord Reed and Lord Carnwath.

(1)       This appeal concerned a judicial review application relating to the Government decision to promote the high speed rail link from London to the north known as HS2.

(2)       The two main issues on appeal were: (1) whether a Government command paper, "High Speed Rail: Investing in Britain's Future - Decisions and Next Steps" (‘the DNS') should have been preceded by an strategic environmental assessment under Directive 2001/42/EC (‘the SEA Directive'); and (2) whether the Hybrid Bill procedure proposed in the DNS meets the requirements of Directive 2011/92/EU (‘the EIA Directive').

(3)       Lord Carnwath (with whom all members of the Court except Lady Hale agreed) held: (1) The DNS was not a ‘plan or programme' for the purposes of the SEA Directive. It is not to be assumed that because a project is ‘strategic' in nature that there must be an environmental assessment under the directive. In order to be caught by the Directive a plan or programme must not simply define the project, but must also set the criteria by which the project is to be determined by the authority responsible for approving it. (2) The DNS could be considered analogous to a planning application - it is an elaborate description, but no more, of the HS2 project. Although it might "set the framework" for subsequent debate and be intended to influence the result of that debate, it does not in any way constrain the decision-making process of the authority responsible for making that decision - Parliament. (3) Holding otherwise would in any event have limited practical consequences for this appeal, as all parties accepted that it would not result in any further consideration of the alternative option which the appellants support. (4) The acte clair doctrine applied in this case and there was thus no need for a reference to the Court of Justice of the European Union (CJEU). A clear test has been developed in the case law in relation to what counts as a ‘plan or programme' for the purposes of the SEA Directive, which national courts and tribunals can resort to in resolving new questions of European Union law.

(4)       Lord Reed (with whom all members of the Court agreed) held: (1) The appellants' contentions in relation to the compatibility of the Hybrid Bill procedure with the EIA Directive should be considered at the present stage, rather than after the Bill has been passed. There were practical reasons for this: the Parliamentary procedure will be costly and time consuming, and it would be convenient to decide the point of law as to the effect of the EIA Directive before further time and expense are incurred. Furthermore, the issue could be resolved through legislative construction of the Directive, and so there was no issue of encroaching on the principle of parliamentary sovereignty through assessing the adequacy of the parliamentary procedure. The possibility of a future challenge was not foreclosed by considering the issue at this stage. (2) The proposed Hybrid Bill procedure falls within the exemption in article 1(4) of the EIA Directive, which states that the Directive does not apply to projects adopted through a specific act of national legislation. As interpreted by the CJEU, a second requirement must also be satisfied for the exemption to apply: that the objectives of the directive, including that of supplying information, are achieved through the legislative process. (3) The Hybrid Bill clearly fulfils the first condition, that the project should be adopted by a specific legislative act. It also fulfils the second: there is no reason to doubt that the appropriate information will be available to the members of the legislature at the time when decisions are taken as to whether the project should be adopted. Procedures laid down in the standing orders of both Houses require Bills of the nature of the nature of that proposed to be accompanied by an environmental statement available to the public. Any comments made on the statement must be submitted to an independent assessor, who must prepare a report on the issues raised by the comments to be put before the House at least 14 days prior to the second reading of the Bill. (3) Any suggestion that members of the legislature must act independently and impartially when voting on whether to approve a project falling within the scope of article 1(4) of the EIA Directive is based on a misunderstanding of the constitutional role of the legislature. The procedure chosen will not prevent adequate examination of the environmental issues from taking place. (4) There is no need for a reference: the CJEU has given a clear account of the relevant principles.

Lord Sumption, Lady Hale and Lords Neuberger and Mance gave separate judgments.

Appeal dismissed

Key paragraphs

Judgment of Lord Carnwath:

[1] - Introduction

[2] - The appellants

[3] - [13] Factual background

[14] - [15] Judicial review

[16] - [49] SEA directive

[50] - [52] Aarhus

[53] - [54] CJEU Reference

[55] Conclusion

Judgment of Lord Reed:

[56] - [66] Introduction

[67] - [77] The parties' arguments

[78] - [117] Discussion

[118] - Conclusion

[119] - [129] - Judgment of Lord Sumption

[130] - [156] - Judgment of Lady Hale

Judgment of Lord Neuberger and Lord Mance

[157] - Introduction

[158] - [162] - The issues arising under the directives

[163] - [174] - The constitutional basis of European Union legislation

[175] - [189] - The SEA Directive

[190] - [211] - The EIA Directive

[212] - Conclusion

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