The Supreme Court’s welcome attack on the Court of Justice

The UK Supreme Court’s judgment in the HS2 case marks the year’s first big constitutional case. The case was brought by campaign groups hostile to (or otherwise critical of) the Government’s plans for a new high-speed rail-link between London, the Midlands, the north of England and (perhaps, one of these days) Scotland. (In a stroke of unintended irony I read the judgment on a Virgin Pendolino yesterday travelling from Euston to Glasgow, a journey which at the moment takes about four and a half hours.) The claim was that the Government’s chosen means of implementing HS2 were incompatible with EU law governing the “environmental impact” of planning decisions. A panel of seven Justices of the Supreme Court was unanimous in holding that there was no breach of the EU directives and that, in the circumstances, there was no need for the matter to be referred to the Court of Justice in Luxembourg for a preliminary ruling.

The case raises questions of UK constitutional law principally for the reason that the Government’s chosen means of implementing HS2 is via legislation. As such, the case could be seen as a legal challenge to the appropriateness of legislative procedure at Westminster. This should immediately cause constitutional eyebrows to be raised: it is provided in the Bill of Rights 1689, article 9, that “debates or proceedings in Parliament ought not to be impeached or questioned in any court …” (see T&T 161-4) and case law on the sovereignty of Parliament (including numerous cases concerned with the building of railways) has several times reinforced the point (see T&T 62-3). Yet, counsel for the claimants appears wholly to have overlooked this. As Lord Reed made plain in his judgment in the case (para 78), the constitutional problem posed by the case was not mentioned in argument until it was raised by the Supreme Court itself. This is astonishing, and it is the second time in recent months that the Court has had to remind the country’s leading public law QCs that our public law has domestic principles and authorities which need to be considered alongside (and sometimes instead of) the European doctrines on which counsel have founded their arguments (cf Osborn v Parole Board [2013] UKSC 61).

In the event, the Court ruled that it was not necessary for it to “impeach” parliamentary proceedings in order for it to reach the conclusion that there was, on the facts, no breach of EU law. It left for another day the question of whether the Court would have the power to do so were it necessary in order to determine whether EU law had been complied with. It was made clear, however, that were the matter to arise in the future, it would be “resolved by our courts as an issue arising under the constitutional law of the United Kingdom” (Lord Reed at para 79). This is another healthy reminder that EU law has effect in the UK only by virtue of an Act of the UK Parliament (see further the European Union Act 2011, section 18). That Act of the UK Parliament — the European Communities Act 1972 — cannot necessarily be taken have authorised the “abrogation” of “fundamental principles” contained in the UK’s “constitutional instruments or recognised at common law” (Lords Neuberger and Mance, para 207). For the UK courts to reach the conclusion that EU law may apply in the UK even at the expense of such a fundamental constitutional principle would require careful and detailed argument.

Thus, the Supreme Court’s ruling in HS2 is an important contribution to the jurisprudence on the relationship between UK constitutional law and the law of the European Union. On this aspect of the case, there is much to be said. But instead of saying it myself I commend the expert analysis published by Dr Mark Elliott, on his blog: here.

What I want to do in the remainder of this post is to focus on an aspect of the case Dr Elliott does not discuss: namely, the Supreme Court’s attack on the Court of Justice.

The attack comes principally in the judgment co-authored by Lord Neuberger, the President of the Court, and Lord Mance. All the other Justices on the panel expressly agree with the Neuberger/Mance judgment. There are supporting statements in the judgment of Lord Reed. Again, all the other Justices on the panel expressly agree with Lord Reed.

But for certain decisions of the Court of Justice (“CJEU”) the issues in the HS2 case would never have arisen. The directives themselves pose no challenge to the lawfulness of the Government’s processes for implementing HS2. That challenge arises only by virtue of the ways in which the directives have been interpreted — that is to say, wilfully misinterpreted — by the CJEU. The so-called “strategic environmental assessment” directive (“SEA directive”) requires that certain “plans and programmes … required by legislative … provisions” are subject to environmental assessment. The Government’s HS2 project is not “required” by legislation, although it is regulated by legislation. In a series of cases the CJEU has interpreted the word “required” in the SEA directive to mean “regulated”, thus extending its scope significantly.

A related directive — the “environmental impact assessment” (“EIA”) directive — excludes from its scope “projects the details of which are adopted by a specific act of national legislation, since the objectives of this directive, including that of supplying information, are achieved through the legislative process”. In a series of cases the CJEU has held that the word “since” in this directive means “provided that”. This alters the meaning of the directive so that in law it means close to the opposite of what it says in fact: it is not that “projects set out in legislation are excluded from the directive’s scope because the legislative process means that the requirements of the directive are in any event satisfied”, but that “projects set out in legislation are included within the directive’s scope unless the legislative process can be shown to satisfy the requirements of the directive”. Again, the result is significantly to extend the directive’s reach.

Lord Reed says of the CJEU’s rulings that they employ “what might diplomatically be described as a purposive interpretation” (para 81). Later in his judgment he talks of the CJEU’s “exegesis” of the text of the directives. An exegesis is a gloss: it’s is not an interpretation of text but a discourse upon a text. It’s not construing the meaning of words set down by the legislative process: it’s changing those words so that they are held to mean something which they do not say. In short, this is not interpretation, it’s re-legislating.

The Court of Justice has been doing this for years and years and years. It famously adopts a “teleological” approach to the development of EU law. It seeks not to keep Member States to the letter of the law but to keep them within the spirit of a legal system which is governed above all by the mantra of “ever closer union”. Whether we look at the law of remedies and the enforcement of EU law (from direct effect to state liability), at the law of citizenship or, increasingly now, at the law relating to national security, we see EU law on the march, with the Court of Justice in the lead. I have long since thought this was hugely problematic and in their HS2 judgment, the UK Supreme Court have been more outspoken in their condemnation of it than I can recall the UK’s top court ever having been before.

Lords Neuberger and Mance remind us of the “constitutional basis” of EU legislation, of the institutions that collectively make it, and of the fact that those institutions represent national governments (the Council of Ministers) and include a democratic element (European Parliament). They state that “it is at the heart of the … Union’s legitimacy that decisions reached by the Council of Ministers, in conjunction with the European Parliament, are given effect” (para 164). Lords Neuberger and Mance amplify their point with reference to the “fundamental principle of European law” — legal certainty. They quote the CJEU’s own words about the importance of this principle: “in particular, that rules should be clear and precise, so that individuals may ascertain unequivocally what their rights and obligations are and may take steps accordingly” (para 165). This is not a uniquely European principle, of course. Lord Bingham was in good company among British jurists to have placed it at the heart of his conception of the rule of law (at T&T 98 we record how Lord Bingham noted that this precludes “excessive innovation and adventurism by the judges”).

Having set out these basics, Lords Neuberger and Mance proceed to analyse step by step the ways in which the CJEU wilfully changed the meanings of the SEA and EIA directives so that, as we saw above, they have come to “mean” in law that which they do not in fact say. The work of Lords Neuberger and Mance is a devastating assault on the way in which the Court of Justice manipulates European law “in the interests of a more complete regulation” at the EU level and in ways which “the European legislature clearly did not intend” (para 189). The clear implication is that this is both illegitimate and contrary to the CJEU’s own stated principle of legal certainty.

There was nothing in the SEA or EIA directives themselves which threatened any norm of the UK constitutional order. But, as extended by the CJEU, those directives came to pose a direct threat to the separation of powers and to parliamentary sovereignty in the sense that it is not for the courts to engage in “close scrutiny of the operations of Parliamentary democracy” (para 202). What underpins the European Union is “the principle of mutual trust” (ibid). Likewise, what EU law relies upon is “the co-operative relationship” between the CJEU and national courts such as the Bundesverfassungsgericht and the UK Supreme Court. The UKSC’s stern words for Luxembourg are designed to remind the Court of Justice of these basic principles.

Not before time, in my view.


The Supreme Court’s welcome attack on the Court of Justice