HIGH SPEED RAIL, EUROPE AND THE CONSTITUTION

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HIGH SPEED RAIL, EUROPE AND THECONSTITUTION

Stephen J. Dimelow and Alison L. Young

The Cambridge Law Journal / Volume 73 / Issue 02 / July 2014, pp 234 - 237DOI: 10.1017/S0008197314000622, Published online: 17 July 2014

Link to this article: http://journals.cambridge.org/abstract_S0008197314000622

How to cite this article:Stephen J. Dimelow and Alison L. Young (2014). HIGH SPEED RAIL, EUROPE ANDTHE CONSTITUTION. The Cambridge Law Journal, 73, pp 234-237 doi:10.1017/S0008197314000622

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undertaking, as the Order highlighted the risk that the seized materialscould fall into the wrong hands if they were used for national securitypurposes. The Order suggests that if Australia were permitted to use theseized materials for national security purposes, then this would create anintolerable risk that the materials would be shared or made available tocounsel for Australia involved in dispute settlement proceedings withTimor-Leste, whether accidentally or intentionally.

As stressed by Judge Donoghue in her separate opinion, the Court’s as-sessment of this risk may not have taken into consideration the fact thatthe probability of such an accidental or intentional disclosure of the seizedmaterial was remote. While the disclosure of the materials could indeedcause irreparable prejudice to Timor-Leste, the Order omits any examin-ation of the likelihood of such harm occurring. As highlighted by JudgeGreenwood, the Order also refrains from engaging in any sort of balancingof Timor-Leste’s right to the protection of its communications with counsel,and Australia’s right to enforce its national security laws. The Court’sapparent distrust of Australia could stem in part from the fact Australia pro-vided the Court with a relatively minimal amount of information about thedocuments in its possession, possibly due to national security concerns. Asacknowledged by Judge Greenwood and Judge ad hoc Callinan, the Courtlacked a precise understanding of the documents that Australia has in itspossession. This case thus raises questions about how (or whether)the International Court of Justice will grapple with the stress that nationalsecurity concerns place on the fair administration of justice, as the factualrecord before the Court will likely remain under-developed during proceed-ings on the merits.

CECILY ROSE

HIGH SPEED RAIL, EUROPE AND THE CONSTITUTION

IN light of the controversy that surrounds High Speed 2 (“HS2”), it waspredictable that a Supreme Court decision considering the proposal’s legal-ity would draw wider interest, however dry and technical the legal ques-tions at issue. Less predictable, perhaps, was that when the decision didappear, as it has done in the form of R. (on the application of HS2Action Alliance Ltd.) v Secretary of State for Transport and another[2014] UKSC 3, it would feature dicta that could potentially have muchbroader constitutional implications.

The appellants challenged the Government’s decision to promote HS2 ontwo principal grounds. The first was that the decision should have been pre-ceded by a strategic environmental assessment which detailed “the likelysignificant effects on the environment of implementing” the HS2 project,

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as well as “reasonable alternatives taking into account the objectivesand the geographical scope of the plan or programme” by virtue ofEU Directive 2001/42/EC (OJ 2001 L 197 p. 30) (“SEA Directive”),Articles 4 and 5. The second was that the hybrid bill procedure proposedfor the enactment of the proposals, which will include an additionalselect committee stage in both Houses of Parliament so as to give relevantobjectors the chance to be heard, did not comply with the proceduralrequirements of Directive 2011/92/EU (OJ 2012 L 26 p. 1) (“EIADirective”), Article 6(4), which demands a certain level of effective publicparticipation in the decision-making process of any plan or programmelikely to have a significant effect on the environment. Underlying both ofthese claims was an ancillary question as to whether either issue shouldbe referred to the Court of Justice of the European Union (“CJEU”) throughthe preliminary reference procedure.The Supreme Court unanimously rejected both the appeal, and the op-

portunity to refer either issue to the CJEU. The suggestion that a strategicenvironmental assessment should have been carried out was rejected on thebasis that at least one of the preconditions required for such an assessmentto be compulsory, namely that the document announcing the decisionto promote HS2 “set the framework for future development consent” in ac-cordance with Article 3(2)(a) of the SEA Directive, was absent. As much asthe document might be highly influential over any subsequent legislativedebate about HS2, their Lordships understood Article 3(2)(a) to requirethat it not just be influential, but that it actually operate as a constrainton Parliament’s decision-making process when it comes to decidinghow to proceed (Lord Carnwath at [38]; Lady Hale at [155]). The appel-lants had argued that such a reading would create inconsistency betweenthe SEA Directive and Article 7 of the Aarhus Convention, but this wasrejected by Lord Carnwath (at [50]–[52]).The supposed incompatibility of the hybrid bill’s procedure with the EIA

Directive ultimately came down to whether the Directive’s objective – thatprior to giving its consent, a national legislature give due consideration to ascheme’s environmental impact –would still be attained under the modifiedlegislative approach. If so, the Government would qualify for an exemptionfrom the Directive’s requirements by virtue of EIA Directive, Article 1(4).The Court found that the proposed procedure would fulfil the Directive’sobjectives on the basis that the two conditions laid down by the CJEU –that the legislature’s role in the adoption of the scheme must be substantiverather than just formal, and that appropriate information is available tolegislative members at the time the proposals are brought forward –wereboth satisfied. Not only will any draft bill brought forward to gain legislat-ive approval of the HS2 scheme be actively debated by Parliament beforeconsent is given, but standing orders in both the House of Commons andthe House of Lords will also serve to ensure that appropriate information

C.L.J. 235The Cambridge Law Journal



pertaining to the proposals is made available to members (Lord Reed at[98]–[99]). An alternative interpretation of the Directive’s requirementsbased on opinions of Advocates General Sharpston and Kokott, whichthe applicants had suggested required the Court to conduct a qualitative as-sessment of the process, was rejected, as was a suggestion that the timing ofthe application was premature.

In other circumstances their Lordships might have left it there. However,motivated by concerns over the CJEU’s interpretative approach to the twoDirectives, Lords Neuberger and Mance offered some observations on whatmight have happened had the case before them been a little different. Ofmost interest for present purposes is what they said about the approachthe Supreme Court might have adopted had they been required to scrutinisethe legislative process in a similar way to that suggested by the appellants.This might have created a problem in the context of the United Kingdom,as it might have conflicted with an important, if not fundamental, aspectof the UK constitution –Article 9 of the Bill of Rights 1689 –which is con-ventionally understood to impose severe limitations on judicial scrutinyof Parliament’s internal workings. Perhaps Article 9 can be understoodto permit judicial inquiry into the information placed before Parliamentto an extent necessary to comply with a more expansive interpretation ofthe EIA Directive’s requirements, by, for instance, adopting a similarapproach to that taken in Bank Mellat v Her Majesty’s Treasury (No 2)[2013] UKSC 39, [2013] 3 W.L.R. 179 (noted [2013] C.L.J. 491). If not,does European Union law reign supreme when it comes into conflictwith what is generally perceived as a fundamental aspect of the UKconstitution?

Though no definitive answer was given, what is clear from the SupremeCourt’s decision is that it is a matter of domestic as opposed to EuropeanUnion law, to be determined by the domestic courts. Moreover, for tworeasons the answer is not found by merely applying R. v Secretary ofState for Transport, ex p. Factortame Ltd. (No 2) [1991] 1 A.C. 603.First, because, as Lord Reed concluded, Factortame concerned a conflictbetween substantive provisions of directly effective European Union lawand domestic law, whereas in the present case the conflict would bebetween procedural requirements of European Union law and domesticlaw (at [79]). Second, because, according to Lords Neuberger andMance, Factortame concerned a potential conflict between directly effectiveEuropean Union law and an ordinary statute, whereas in the present casethe conflict would be between directly effective European Union law anda constitutional statute, constitutional instrument, or constitutional principle(at [207]–[208]).

For a long time, the absence of a formally enacted constitution inthe United Kingdom ensured that the notion of domestic constitutionallimits constraining either Parliament or the European Union was

236 [2014]Case and Comment



largely downplayed. More recently, of course, it has become increasinglycommon to suggest that varying types of limits now exist followingthe rise of ideas such as common law constitutional rights, and judicialstatements such as those contained in R. (on the application of Jackson)v Attorney General [2005] UKHL 56, [2006] 1 A.C. 262 and AXAGeneral Insurance Ltd. v Lord Advocate [2011] UKSC 46, [2012] 1A.C. 868. The judgment of Lords Neuberger and Mance might beunderstood to further this claim by adding support to the idea that domesticlaw recognises certain law as being “constitutional” in nature, whether it begrounded in common law or statute, and that this law is harder todisplace than ordinary law. It will be remembered that a similar claimwas made in Thoburn v Sunderland City Council [2002] EWHC 195(Admin), [2003] Q.B. 151, when Laws L.J. proposed a category of consti-tutional statutes which are immune from implied repeal. But beforerushing into any extravagant claims about whether the existence of thisspecial category of law or enactment has now been confirmed, it mightbe prudent to note that pigeonholing certain aspects of our law as “consti-tutional” may well only serve to create a layer of formalism wherenone is needed. Rather than distract themselves with questions as to thefundamental nature of the law potentially conflicting with EU law, andwhat qualifies as a “constitutional” law, which could in turn easily leadto awkward interpretative backpedalling at a later date, the judiciarywould surely be better to focus their efforts on evaluating the different prin-ciples engaged in a particular dispute so as to come to a conclusion as totheir relative merits in whatever particular contextual situation they areengaged. The result of any case would no doubt remain the same, but un-necessary and potentially awkward questions about what qualifies as a con-stitutional law of the type that can limit European Union law would be putto one side.Perhaps this case will turn out to be little more than a shot across the

bows of the CJEU. Certainly, given that this is the first time the issuehas arisen since the enactment of European Communities Act 1972, itwould be surprising if the issue arose before a domestic court again inthe immediate future. In the meantime, the idea that European Union lawwill not always override national law, and that the UK now formallyseparates between constitutional law and other law, will no doubt continueto spread. Whatever the latter’s intuitive appeal, we should be careful not toweigh ourselves down with deceptively rigid rules when the same resultcould be achieved through much simpler means.

STEPHEN J. DIMELOW AND ALISON L. YOUNG

C.L.J. 237The Cambridge Law Journal


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HIGH SPEED RAIL, EUROPE AND THE CONSTITUTION