R (on the application of HS2 Action Alliance Ltd) v The Secretary of State for Transport & Anor [2014] UKSC 3

Campaigners and local authorities challenged the Government's HS2 high-speed rail proposals, arguing the command paper required strategic environmental assessment and that the hybrid bill procedure breached EU environmental directives. The Supreme Court unanimously dismissed the appeals, addressing important constitutional questions about Parliament and EU law.

Facts

The Government announced its high-speed rail strategy (HS2) in a January 2012 command paper, ‘High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps’ (the DNS), proposing a Y-shaped network linking London to Birmingham, Manchester, the East Midlands, Sheffield and Leeds. The Government intends to seek authorisation through hybrid bills in Parliament, with the Phase 1 bill receiving its first reading on 25 November 2013. Three sets of appellants challenged the proposals: HS2 Action Alliance, the 51M group of local authorities led by Hillingdon LBC, and Heathrow Hub Ltd. Ouseley J dismissed the relevant grounds, and the Court of Appeal upheld that decision (Sullivan LJ dissenting on the SEA issue).

Issues

The Supreme Court considered: (i) whether the DNS was a ‘plan or programme’ which ‘set the framework for future development consent’ and was ‘required by administrative provisions’ under Articles 2-3 of Directive 2001/42/EC (the SEA Directive); (ii) whether Article 3(2)(a) of the SEA Directive was inconsistent with Article 7 of the Aarhus Convention; (iii) whether the hybrid bill procedure complied with Directive 2011/92/EU (the EIA Directive), given that issues of principle would be excluded from the Select Committee stage and debates would be subject to the Government whip; (iv) whether the court should intervene before the parliamentary process completed; and (v) whether any question should be referred to the CJEU.

Arguments

Appellants

The appellants submitted that the DNS set the framework for future development consent because it would influence Parliament’s decision and had specific legal consequences (safeguarding directions, blight provisions, paving Bill). They argued the hybrid bill procedure could not satisfy Article 1(4) of the EIA Directive because the Government whip and collective ministerial responsibility would prevent effective public participation; that MPs could not properly consider voluminous environmental information; and that the Select Committee’s inability to consider matters of principle prevented examination of alternatives such as the ‘optimised alternative’.

Respondents

The Secretary of State argued that the DNS was merely a government proposal which did not constrain Parliament’s decision-making and therefore did not set the framework. On the EIA Directive, the respondents contended that the hybrid bill procedure, supported by Standing Orders 27A and 224A, was capable of meeting the conditions identified by the CJEU, and that any assessment of the quality of parliamentary scrutiny could only occur after enactment.

Judgment

SEA Directive (Lord Carnwath)

The Court held that the DNS did not ‘set the framework’ for future development consent. Drawing on Terre wallonne, Inter-Environnement Bruxelles and Nomarchiaki, Lord Carnwath concluded that the concept requires more than mere influence: the plan or programme must operate to constrain subsequent decision-making by setting criteria the deciding authority must apply, or by excluding consideration of certain environmental effects. The DNS was an elaborate description of the project and the Government’s reasons for rejecting alternatives, but did not constrain Parliament, which remained constitutionally autonomous. Mr Mould’s qualification – that ‘influence’ must constrain subsequent consideration – was accepted. The safeguarding direction and paving Bill did not impose any further constraint on Parliament’s overall consideration.

Aarhus Convention

The Court rejected the argument that the SEA Directive must be interpreted to ensure conformity with Article 7 of the Aarhus Convention. The differences in wording were deliberate, and any shortfall in compliance with the Convention would not invalidate the Directive.

EIA Directive and Hybrid Bill Procedure (Lord Reed)

Lord Reed held that the hybrid bill procedure was capable of satisfying the two conditions identified by the CJEU in Boxus and Nomarchiaki for the Article 1(4) exemption: a substantive legislative process, and the availability of appropriate information. The CJEU left it to national courts to determine satisfaction in their own constitutional context. The appellants’ premise – that parliamentary procedure must itself comply with the requirements of the Directive – overlooked that Article 1(4) exempts qualifying legislation from those requirements. The influence of party politics, whipping and collective ministerial responsibility did not prevent MPs from giving careful and responsible consideration to environmental information. The court need not assess the quality of parliamentary debate, which would raise fundamental constitutional difficulties under Article 9 of the Bill of Rights 1689.

Constitutional Observations (Lords Neuberger and Mance)

Lords Neuberger and Mance, with the agreement of the other Justices, expressed concern about the CJEU’s interpretation of ‘required’ as ‘regulated’ in the SEA Directive and ‘since’ as ‘provided that’ in the EIA Directive, observing that these departed from clear legislative language. They noted that the United Kingdom has constitutional instruments and common law principles – including Article 9 of the Bill of Rights – which Parliament may not have authorised to be abrogated by the European Communities Act 1972. They considered the CJEU did not endorse the wide scrutiny of parliamentary process suggested by Advocates General Sharpston and Kokott.

Reference to CJEU

The Court unanimously declined to refer any question to the CJEU, considering the relevant principles sufficiently clear from existing case law for national courts to apply.

Implications

The decision clarifies that, for the purposes of the SEA Directive, ‘setting the framework’ requires more than mere influence: the plan or programme must operate to constrain the discretion of the body responsible for development consent. A government command paper that is merely a proposal, however influential, does not set the framework where the ultimate decision rests with a sovereign Parliament. The judgment also confirms that the hybrid bill procedure is in principle capable of satisfying Article 1(4) of the EIA Directive, provided appropriate environmental information is made available and the legislative process is substantive rather than merely formal. Significantly, the judgments contain important constitutional observations about the relationship between EU law and fundamental domestic constitutional principles, including Article 9 of the Bill of Rights. Lords Neuberger and Mance left open whether the European Communities Act 1972 authorised the abrogation of such constitutional principles, signalling that this question would require careful argument if it arose squarely. The case is significant for understanding the limits of judicial scrutiny of parliamentary proceedings, the boundaries between the SEA and EIA regimes, and the developing dialogue between United Kingdom courts and the CJEU on matters touching national constitutional identity.

Verdict: The Supreme Court unanimously dismissed all three appeals, holding that the DNS was not a ‘plan or programme’ setting the framework for future development consent under the SEA Directive, that the hybrid bill procedure was capable of complying with the EIA Directive, and that no reference to the CJEU was required.

Source: R (on the application of HS2 Action Alliance Ltd) v The Secretary of State for Transport & Anor [2014] UKSC 3