R (Buckinghamshire County Council) v Transport Secretary (HighSpeed 2) [2014] UKSC 3; [2014] 1 WLR 324

Key Points

  • In obiter, if the Bill of Rights 1688 is a more fundamental statute than the ECA 1972, and was outside the contemplation of the Parliament when it enacted the ECA, it can take precedence over EU laws (This is partly moot now, as the UK has withdrawn from the EU)
  • This case builds upon the decision in Thoburn [2002] EWHC 195 which established the hierarchical distinction between “constitutional” and “ordinary” statutes (see Laws LJ judgment at [62] in Thoburn) within the UK constitution

 Facts

  • The UK Government wanted to build a high speed railway (HS2) network linking London to Manchester and Leeds via Birmingham
  • The Government issued two command papers (one in March 2010 and the second in January 2012) laying out the Government’s proposed strategy and plans in regards to building HS2. The second of these command papers was known as “the DNS” (Decisions and Next Steps) (name is relevant during case).
  • The claimants brought claims for judicial review on two grounds:
    1.  The hybrid bill procedure which the Government wanted to use to deliver phase 1 of HS2 in Parliament was incompatible with the Environmental Impact Assessment Directive 2011/92/EU: article 6(2) of this Directive requires that the public be given “early and effective” opportunity to “express their opinion” about proposed development plans, however, the hybrid bill procedure passes an Act in much the same way as regular legislation, save an additional stage which allows objectors to petition against the bill. For this reason, it was considered by the claimants to provide insufficient public participation.
    2. That because the DNS set a “framework” for whether future project development consent was granted, it fell under the Strategic Environmental Assessment Directive 2001/42/EC (SEA), meaning that there should have been a strategic environmental assessment conducted (which there was not)

Held (Supreme Court)

  • Appeal dismissed
  • The hybrid bill procedure was held not to be incompatible with EU law, and in this, the argument by the claimants that party politics would excessively dilute the informed consideration given by politicians to the Bill was rejected. The participative aspects of the Bill were sufficient.
  • It was held that the command paper (the DNS) fell outside the scope of the SEA, because it was not a “framework” in the sense that it constrained the decision which Parliament could ultimately take on the development. In the words of Lord Sumption, the development plan could only be described “as influential rather than determinative”: [123]

Judgment

  • The respondents argued that the court should not even consider the compatibility of the hybrid-bill procedure with the EU directives, claiming that it was contrary to Article 9 of the Bill of Rights, which provides that proceedings in Parliament cannot be questioned in a court of law
  • The court skirted this dilemma by framing the case as one where they were required to interpret EU legislation and its requirements, rather than examining parliamentary process
  • Regardless of the court’s decision that Article 9 of the Bill of Rights was not engaged by the case, Lord Neuberger and Lord Mance considered the possibility of what would happen if such a fundamental statute were engaged. The crux of this discussion was that it was “certainly arguable” (at [207]) that fundamental statutes exist within the UK constitution which the Parliament responsible for the ECA 1972 did not authorise the abrogation of
  • This discussion leads to the tacit conclusion that there is a hierarchy of constitutional statutes within the UK constitution. Lord Neuberger and Lord Mance’s analysis infers that the Bill of Rights is more fundamental than the ECA 1972

Commentary

  • Whilst the creation of a hierarchy of constitutional statutes might clarify the way that EU law ought to be treated after Factortame (No 2) ([1990] 1 AC 603), it creates more problems than it solves
  • How, for example, should we resolve the situation if two fundamental UK statutes conflict? After all, it is not always possible to see the risk of incompatibility between two fundamental statutes until both Acts have passed and been in existence for several years
  • Furthermore, there is no metric by which we can measure fundamentality to resolve which statute should take precedence