High speed rail, Parliament, and the EU Courts
22 January 2014
R (o.t.a HS2AA, Buckingham County Council and others) v. Secretary of State for Transport,  UKSC 3 – read judgments
So the challenge to the way in which the Government wished to push the HS2 project through Parliament has failed before the Supreme Court, though not without clarifying the way in which key EU environmental provisions are meant to work. And we will also see a further flexing of the Court’s muscles against a too straightforward reading of the supremacy of EU law when seen against our constitutional principles.
The objectors said the command paper which preceded the Parliamentary hybrid bill, in which the Government set out its proposals for HS2, fell within the scope of the Strategic Environmental Assessment Directive 2001/42/EC and that an SEA ought therefore to have been carried out. The directive applies to plans or programmes which set a “framework” (Art.3(2)(a)) for future decisions whether to grant development consent for projects, and it was said that the command paper set the framework for the decision whether to grant consent for HS2.
Secondly, the objectors said that the legislative procedure in Parliament does not meet the requirements of the Environmental Impact Assessment Directive 2011/92/EU. The EU Court of Justice has interpreted that directive as imposing a number of requirements, including that the legislature must have available to it the information required by the directive, and a requirement that national courts must be able to verify that the requirements of the directive have been satisfied, taking account of the entire legislative process, including the preparatory documents and the parliamentary debates.The EIA argument raised some tricky issues as to how intensely the courts ought to get involved in assessing parliamentary procedures. This is because in two cases before the EU Court of Justice, the Advocate General interpreted the directive as also requiring that the national court must decide whether the legislative process has allowed sufficient preparation and discussion time for the legislature to be able properly to examine and debate the environmental effects of the project. Do/can MPs do their homework on such a huge project, when often their vote is required by their whip?
Hence, the Supreme Court was being invited to assess the likely adequacy of the Parliamentary procedures and debates concerning HS2, including the extent to which members are likely to consider, understand and apply an independent mind to the environmental issues. Apart from the Parliamentary whip, it was said that the time allowed for debate will be too short to enable members to give adequate consideration to the environmental issues; and that most members are unlikely to attend the debate in any event. In these circumstances, the Parliamentary procedure will fail to comply with the requirements of the directive.
The Supreme Court dismissed the appeals unanimously.
The SEA argument
Lord Carnwath (on behalf of the Court) addressed the SEA point, with concurring judgments from Lady Hale (with a little hesitation) and Lord Sumption. The command paper fell outside the scope of the SEA directive. It did not set a framework for the decision whether to grant consent for the HS2 project, since it did not “constrain” Parliament’s decision in any way: it simply set out a proposal to be brought forward in a bill, leaving entirely up to Parliament the decision that it might take in relation to the bill. There is a distinction between merely”influencing” subsequent consideration of the proposal, and setting limits on the scope of what can be considered. Until Parliament has reached its decision, the merits of all aspects of the HS2 project, on economic, environmental and other grounds, remain open to debate. So no framework was set.
A related Aarhus point arose. Article 7 of the Aarhus Convention requires provision to be made for the public to participate in the preparation of “plans and programmes relating to the environment”. It refers to plans and programmes in general, without the qualifications found in the SEA Directive definition. The objectors said that the SEA Directive must be interpreted in such a way as to ensure conformity with the Aarhus Convention, which in turn requires that any plans or programmes covered by article 7 are also subject to the SEA procedure.
Lord Carnwath disagreed. There was no reason to assume that article 7 and the SEA Directive are intended to cover exactly the same ground. The differences in wording are clear and must be assumed to be deliberate. The SEA Directive must be interpreted and applied in its own terms. If this falls short of full compliance with the Aarhus Convention, it does not invalidate the directive so far as it goes. It simply means that a possible breach of the Convention may have to be considered as a separate and additional issue.
Parliamentary procedure and EIA
Here Lord Reed gave the main judgment (agreed to by all 6 other Justices). He did not accept that the EU EIA directive was intended to subject the operations of Parliamentary democracy to the degree of judicial scrutiny suggested by the A-Gs in cases before the EU Court. The Court of Justice has not endorsed the A-Gs’ interpretation, but has repeatedly said that it is for national courts to determine whether the conditions which it has laid down have been satisfied. It cannot have been unaware of the importance of the separation of powers in European democracies, and of the mutual respect which governs the relationship between the courts and the legislature not only in this country but elsewhere, and this court is not persuaded that it intended to override them. The contrary view would result in a conflict between EU law and the Bill of Rights of 1689 (prohibiting judicial scrutiny of parliamentary business). Lord Reed also referred favourably to a principle, developed by the German Federal Constitutional Court in its judgment of 24 April 2013 on the Counter-Terrorism Database Act, 1 BvR 1215/07, para 91,
that as part of a co-operative relationship, 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 developed in German law.
So, CJEU tanks off our constitutional lawn, please. And simple reference to the supremacy of EU did not solve the problem, as Lord Reed explained:
79. Contrary to the submission made on behalf of the appellants, that question cannot be resolved simply by applying the doctrine developed by the Court of Justice of the supremacy of EU law, since the application of that doctrine in our law itself depends upon the 1972 Act. If there is a conflict between a constitutional principle, such as that embodied in article 9 of the Bill of Rights, and EU law, that conflict has to be resolved by our courts as an issue arising under the constitutional law of the United Kingdom. Nor can the issue be resolved, as was also suggested, by following the decision in….Factortame Ltd (No 2)  1 AC 603, since that case was not concerned with the compatibility with EU law of the process by which legislation is enacted in Parliament. In the event, for reasons which I shall explain, it is possible to determine the appeal without requiring to address these matters.
Lord Reed did not anyway accept that Parliamentary procedure is incompatible with EU law by reason of the influence of political parties and government policy upon voting. The legitimate role of political parties is recognised in EU law, in the Treaty on European Union and in the EU Charter of Fundamental Rights, and it is part of the constitutional tradition of the UK and other member states. The influence of party policy or Government policy does not prevent members of Parliament from giving responsible consideration to the matters that they have to decide; and the court sees no reason to doubt that, when they come to make their decision on the HS2 bill, they will have adequate information available to them to allow them to consider the environmental implications of the proposal.
Lord Neuberger and Lord Mance added a separate judgment considering the judgments of the CJEU on the relevant directives. It is, to say the least, withering about one decision concerning the word “required” in the phrase “required by legislative, regulatory or administrative provisions” in article 2(a) of the SEA Directive. This was the Inter-Environnement Bruxelles case, in which the CJEU, disagreeing with Advocate General Kokott’s “logical and impeccable” opinion, that “required” means, not required, but “regulated.”
On the effect of which decision, Lords Neuberger and Mance said this:
189. In the result, a national court is faced with a clear legislative provision, to which the Fourth Chamber of the European Court of Justice has, in the interests of a more complete regulation of environmental developments, given a meaning which the European legislature clearly did not intend. For this reason, we would, had it been necessary, have wished to have the matter referred back to the European Court of Justice for it to reconsider, hopefully in a fully reasoned judgment of the Grand Chamber, the correctness of its previous decision.
Yes indeed, proper reasons, please; it should not be for the CJEU to divert from clear legislative meaning just because its suits; the purposive principle must have its bounds.
Lots of interesting stuff in these judgments, including a scepticism about the over-interpretation of EU provisions by the CJEU which threaten to stray into the forbidden territory of Parliamentary business.
Doubtless not entirely unconnected with this scepticism is a real reluctance to refer these issues, controversial as they may be, to the CJEU for determination. As ever, there is the difficulty of deciding what is truly a dispute about law (a matter for the CJEU), as opposed to a dispute about the application of law to a specific set of facts and procedures (for national courts to decide).
The Supreme Court is happy to plump for the latter characterisation of the main issues, with the undoubted pragmatic advantage (as I pointed out in my post on the CA’s decision) of seeking to avoid delay to a massive infrastructure project which it is firm Government policy to press on with. Reference to the CJEU would take over a year, and then the Supreme Court would have to make sense of it. Not every CJEU decision is pellucid.
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I am somewhat concerned that a government because the ECHR and its edifices get in the way of what they wish to do, this shows the government’s attitude to the whole thing is a political one, not a democratic principle or process.
One of my major thoughts on this, is that because it was a truly democratic process the original referendum, does the government have the legal facility to remove us from the ECHR without at least a similar process?
We are seeing more and more “dangerous” language and law making, repeated attempts to remove employment rights, an almost savaging attack on a citizens right to a fair trial, family division hearings which were until Mundby almost unwinnable here in the UK in defence of out of control social workers and a legal system that is just not fit for purpose and protects no one except social workers.
One hopes that legal challenges will abound when the time comes to keep us in the ECHR because it is the only brake left that prevents this country going back to a Dickensian era of poverty and misjustice for the masses.
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