Judicial review: high-speed constitutional reconstruction

The HS2 judgment recently given by the Supreme Court, R (on the application of HS2 Action Alliance Limited) v Secretary of State for Transport [2014] UKSC 3, is one of the most important constitutional cases of the past 30 years.

It started modestly enough with a challenge to the government's command paper High Speed Rail: Investing in Britain's Future - Decisions and Next Steps (2012, Cm 8247) concerning the development of a high speed rail link between London and Birmingham. The claimants argued inter alia that the proposal violated the EU Strategic Environmental Assessment (SEA) and the Environmental Impact Assessment (EIA) directives. The Supreme Court took the opportunity to restate in a most ambitious way the relationship between domestic law and EU law.

Constitutional significance

The key to the constitutional significance of the case was the possibility of an inconsistency between the EIA directive and the hybrid bill procedure chosen by the government to promote the scheme. A hybrid bill is a public bill which affects a particular private interest in a manner 'different from the private interests of other persons or bodies of the same category or class'.

Hybrid bills are therefore debated in parliament with an additional select committee stage after the second reading in each house, at which objectors whose interests are directly and specifically affected by the bill may petition against the bill and be heard.

Was this process acceptable from the point of view of EU law? And what if it was not? The EIA directive provides for an exception for parliamentary processes but the appellant argued that the exception had a narrow scope defined by the general aims of the directive. They urged the court to declare that the procedure as pursued by the government fell outside the exception, because it was open to party loyalty and the system of parliamentary whips.

Parliamentary democracy

In a joint judgment Lords Neuberger and Mance (with whom all the other justices agreed), stated that the tests set out by the EIA directive were in any case met. They dismissed, however, with some flourish the idea that the directive was imposing substantive procedural tests on parliament. They said that the appellant's case 'that the parliamentary process will be tainted by considerations such as whipping or collective ministerial responsibility or simply by party policy, amounts to challenging the whole legitimacy of parliamentary democracy as it presently operates' (para.210).

Having defended parliament in this robust way, they then went on to put it in its proper constitutional place. Referring approvingly to Lord Justice Laws' judgment in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), which for the first time distinguished between ordinary statutes and 'constitutional statutes', they too distinguished between ordinary statutes and 'constitutional instruments'. Such constitutional 'instruments', the justices said, have more weight than ordinary statutes.

They expressly listed the Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Rights Acts 1689, the Act of Settlement 1701 and the Act of Union 1707 and, after a hiatus of almost three hundred years, they added the European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005.

Fundamental principles

But this was not all. In addition, constitutional 'instruments' can be 'fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation'.

For a long time, under Dicey's influence, the unwritten constitution was confused with a pure procedure of law-making. The doctrine of parliamentary sovereignty appeared to be just a formal mechanism. But this view was too simplistic. The common law again and again exposed its limitations, especially in cases of judicial review. In HS2 the Supreme Court drew the inevitable conclusion. The hierarchy between deeper constitutional principles and ordinary laws is now part of the constitution, just as it is in all other constitutional states in Europe and the world.

It is not entirely clear what this welcome constitutional restatement means for practice. At the very least it promises a very interesting renewal of the debates on the principles of public law in the years to come.