HS2 Action Alliance v Secretary of State for Transport

Facts

The Government proposed a new high speed railway from London to the Midlands and the north, and set out its decision to proceed in a Command Paper. The project was to be authorised by a hybrid Bill in Parliament. Local authorities and the HS2 Action Alliance argued that the process breached the Strategic Environmental Assessment Directive and the Environmental Impact Assessment Directive, because a full assessment had not been carried out before the decision to proceed and because the hybrid Bill procedure did not meet the Directive.

History

The claims for judicial review were dismissed in the High Court and by the Court of Appeal. The claimants appealed to the Supreme Court.

Issue

Whether the Command Paper decision was a plan or programme required to be assessed under the Strategic Environmental Assessment Directive, whether the hybrid Bill process satisfied the Environmental Impact Assessment Directive, and what part Article 9 of the Bill of Rights 1689 played in a challenge to the compatibility of the parliamentary process with EU law.

Held

Appeals dismissed. The Command Paper decision was not a plan or programme required by law, and the hybrid Bill procedure was a legislative process capable of satisfying the Environmental Impact Assessment Directive, so there was no breach of EU law.

Ratio

• The Strategic Environmental Assessment Directive applies only to plans and programmes required by legislative, regulatory or administrative provisions, and a Government decision in the form of a Command Paper on the proposed route is not such a plan or programme.
• A project authorised by a specific Act of Parliament may fall outside the Environmental Impact Assessment Directive if the objectives of the Directive are met through the legislative process, and the hybrid Bill procedure provided sufficient scrutiny for that purpose.

The judgments

Key reasoning

• The decision of the Government in the Command Paper was not itself required by any legislative or administrative provision, so it was outside the scope of the Directive on plans and programmes.
• The hybrid Bill procedure allowed for public participation, debate and scrutiny of environmental information, and the final decision lay with Parliament, so the legislative exception in the Directive could apply.

Obiter

• Lord Neuberger and Lord Mance observed that the United Kingdom has no written constitution but has a number of constitutional instruments, including Magna Carta, the Bill of Rights 1689 and the European Communities Act 1972, and that there might be fundamental principles that Parliament could not be taken to have overridden without clear words. They left open how a conflict between EU law and a fundamental principle of the common law constitution would be resolved.

Where it fits in the module

In the module on the principle of legality and constitutional statutes the case is important for the dicta on constitutional instruments, which draw on the idea of constitutional statutes in Thoburn, and on the possibility of constitutional limits on parliamentary power. The debate is whether these dicta show the courts developing a hierarchy of laws, and how they sit with parliamentary sovereignty. The later decisions of the Supreme Court in the Miller cases on the limits of executive power are relevant developments.

Criticisms

• The dicta suggesting that there may be constitutional principles beyond the reach of Parliament are obiter and uncertain, and they risk undermining parliamentary sovereignty without a clear basis.
• The reliance on a list of constitutional instruments is vague, because the court did not say what makes an instrument constitutional or what the consequences are, so the idea of a hierarchy remains underdeveloped.
• The treatment of Article 9 of the Bill of Rights and of challenges to the parliamentary process raises questions about the separation of powers, and the line between examining a process and questioning proceedings in Parliament is hard to draw.