Legal brief: Supreme Court gets HS2 back on track

7th March 2014

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Emma Roy

Stephen Tromans applauds the UK's highest law court for delivering a 'careful, thorough and far-ranging judgment'

In my column last October, I looked at the Court of Appeal (CA) decision ([2013] EWCA Civ 920) on HS2 and strategic environmental assessment (SEA), and the striking divergence of judicial opinion on the scope of the SEA Directive (2001/42/EC). I predicted that the case would go further and, indeed it has.

The Supreme Court gave its judgment on 22 January – R (HS2 Action Alliance Limited) v Secretary of state for transport [2014] UKSC 3. The fact a bench of seven Supreme Court judges rather than the usual five considered the case is an indication of its significance.

At the heart of the case was a document entitled High-speed rail: investing in Britain’s future – decisions and next steps (“DNS”), which was published in January 2012. The question was whether the DNS was “required by administrative decisions” and whether it “set the framework for future development consent” – so as to be within the scope of the SEA Directive.

Lord Carnwath gave the first judgment and five of his colleagues concurred. Lord Carnwath was prepared to accept as a working assumption that the DNS was “required” by a previous government document on high-speed rail, published in March 2010.

He then considered the more controversial question of whether it “set the framework” for the future development consent for the project. On the basis of previous case law, it appeared to Lord Carnwath that the question was how far the plan influenced later decisions. It did not have to be prescriptive in the sense of determining a location, for example, but it did have to be influential to the extent of excluding some environmental effects or categories of effects, from later consideration.

The majority in the CA had viewed this as being a spectrum of influence. Lord Carnwath went back to basics by reminding himself that the SEA Directive had been intended to fill a gap in the regime for environmental impact assessments whereby, at the time of assessing a project, a major effect on the environment may already have been established by a previous plan or programme. He also recalled that the word “strategic” does not appear in the SEA Directive, and that there is no presumption that because a project is strategic in nature that it is subject to the Directive.

Lord Carnwath qualified the test of “sufficiently potent influence”, which had been used both by the majority and dissenting minority judges in the CA. Influence over the later decision, however great, is itself not enough. As the counsel for the secretary of state put it: “The influence ... must be such as to constrain subsequent consideration, and to prevent appropriate account from being taken of all the environmental effects which might otherwise be relevant.”

Applying that test, Lord Carnwath agreed with the majority in the CA that the DNS did not set the framework for development consent decisions made by a sovereign parliament.

It was also relevant to focus on the practical consequences of finding that the SEA Directive did not apply, and here Lord Carnwath found it important to note the conclusions of Mr Justice Ouseley in the earlier High Court hearing ([2013] EWHC 481) that, even if the SEA Directive had applied, it would not have required a more detailed consideration of alternative strategies based on improvements to the existing network.

In his judgment, Lord Reed – with whom six justices agreed – focused more on the detail of the hybrid bill procedure by which the HS2 project would be authorised. This included a detailed and academic consideration of the role and influence of the government’s whips and the constitutional principles in the 1689 Bill of Rights governing the relationship between parliament and the courts.

Lord Sumption, meanwhile, took a robust stand that the DNS was a proposal and nothing more. It did not operate as a constraint on the discretion of parliament. Four justices agreed with Lord Sumption.

None agreed with Lady Hale’s judgment, however. She confessed to not finding the case easy, and expressed sympathy with Lord Justice Sullivan, the minority judge in the CA. While Lady Hale was initially attracted by the idea of referring the case to the Court of Justice of the European Union (CJEU), she eventually agreed with the other justices in deciding that this course of action would not be appropriate.

Lords Neuberger and Mance – with whom the other five agreed – gave a deadly critique of the CJEU’s approach in the Inter-Environnement Bruxelles case in 2012. In this case, the CJEU had, contrary to the analysis of the advocate general, given the word “required” in the Directive a meaning that the European legislature did not intend.

Taken together, the Supreme Court judgments are an extremely impressive tour de force; a series of learned essays where there is something for all lawyers, whether specialising in the environment, the constitution or the EU. The challenge, therefore, has failed.

Whether one agrees with the practical outcome, jurisprudence has been massively enriched by the decision of the UK’s highest court. Critics of the English legal system should read it. I doubt there is any other country in the EU whose highest courts could have produced such a careful, thorough and far-ranging set of judgments of such intellectual integrity.

SEA Directive

The SEA Directive (2001/42/EC) came into force in 2001 and makes assessment mandatory for a wide range of public plans and programmes – for example, on land use, transport, energy, waste and agriculture. It was transposed into domestic legislation by the Environmental Assessment Plans and Programmes Regulations 2004.


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