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.
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