Reflecting on the qualified EU law primacy in the UK constitutional law

Elise Tai
Undergraduate Law Student, University of Hertfordshire, School of Law

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In a recent blog post, Elliot reflects on the HS2 case in regards to a hierarchy of domestic constitutional norms and the qualified primacy of EU law. He addresses one aspect of the decision concerning the construction of the proposed “HS2” high-speed rail network, dicta in regards to the relationship between the UK and EU Law, as well as the nature of the UK’s constitutional order.

The issue, which the Supreme Court needed to address is whether the process to be adopted in relation to the HS2 project is compliant with the EU Directive 2011/92/EU and whether it will facilitate the degree of public participation called for by the Directive.  Elliot comments that the decision concerning HS2 is to be taken by way of the enactment of a “hybrid bill”, not via administrative means. He defines “hybrid bill” as “a public bill which affects a particular interest in a manner different from the private interests of other persons or bodies of the same category or class” and expounds on how the hybrid bill’s character influences parliamentary procedure.

The process of passing this parliamentary procedure requires the Supreme Court to access it, whilst using the Directive as a benchmark. He then brings in dictum by Lord Reed concerning the impingement upon long-established constitutional principles governing the relationship between Parliament and the courts should the legislative process be scrutinised. Lord Reed also concluded that the Directive did not require scrutiny. Even if it did, problems with the constitutional propriety of close judiciary scrutiny of the legislative process would not be capable of being resolved by only applying the doctrine developed by the court of Justice of the supremacy of EU Law, because that application of that doctrine depends on the European Communities Act 1972.

Elliot explains that the dictum serves as a reminder that the effectiveness of EU within the UK legal system is attributed to the European Communities Act 1972. Having said that, Elliot elucidates that the dictum also implies that EU law’s position within the UK system is determined by reference to the terms of ECA 1972 and by reference to other features of the domestic constitutional landscape. This then suggests that the domestic status accorded to EU law is a matter which is too complex to be resolved by reference to the binary distinction drawn by Thoburn v Sunderland City Council[1]  between “constitutional” and “ordinary” legislation. Furthermore, primacy for EU in the absence of specific derogation from it in other primary legislation, is secured. Elliot cites Thoburn who suggests the notion that not all legislation is equal, and the question is whether all constitutional legislation is equal in status.

The dictums of Lords Neuberger and Mance are reiterated by Elliot. They consider the constitutional implications of the claimant’s contention that the Directive requires close judicial assessment of the adequacy of the legislative procedure adopted by Parliament. This brings the requirements of the Directive into tension with the constitutional principles concerning the proper relationship between the courts and the legislature. Article 9 of the Bills of Rights precludes the impeaching or questioning in any court of debates or proceedings in Parliament.  Both Lords doubt that an EU Directive requires domestic courts to set aside such a fundamental principle. They also brought up the Factortame, stating that the House of Lords had taken the ECA 1972 to require courts to treat as “invalid” domestic legislation found to be incompatible with EU Law. It is interesting to note that Elliot disagrees, stating that the House of Lords merely held that domestic legislation could be disapplied to the extent of any inconsistency with EU law.

EU law’s status within the domestic system is attributed to and determined and potentially circumcised by the ECA 1972 as was stated by Lord Bridge in the Factortame. Elliot expounds that the Thoburn case seeks to explain Parliament’s capacity to accord primacy to EU Law –including in relation to legislation enacted after the ECA 1972. The case explains that by characterizing the ECA as a constitutional statute that was immune from implied repeal such that later legislation that was inconsistent (but not explicitly inconsistent) with EU Law would code priority to the ECA and hence to the EU law to which that Act gives effect.

The dictums of Lords Neuberger and Mance in the HS2 Case also discuss that the notion that not all constitutional measures are equal. The analysis suggests that some constitutional measures are more fundamental than others. Additionally, it proposes that in a given constitutional measure, such as the ECA, it should not lightly be taken that Parliament has intended the abrogation of some other more fundamental constitutional measure. On this view, whilst –according to Thoburn ordinary legislation will always yield in the face of constitutional legislation -the relationship between constitutional statutes is a complex one that turns upon the fundamentality of the norms they respectively enshrine. Correspondingly, the constitutional nature of a statute should not be taken to establish that it necessarily prevails over a common-law constitutional principle, the fundamentality of which might outstrip that of the constitutional statute.

Elliot’s analysis has practical implications for the primacy of EU Law. He clarifies that primacy is qualified in the sense that Parliament is free to derogate from EU law provided it makes its intention sufficiently clear. However, he believes that the views advanced by Lords Neuberger and Mance submit that the “constitutional” status of the ECA does not conclusively establish that EU law prevails over everything except an explicitly inconsistent Act of Parliament. Rather, the extent of EU law’s qualified primacy is delimited by other constitutional measures, including other “constitutional” legislation, perhaps common-law constitutional rights and principles, whose claim to constitutional fundamentality may prove more compelling than that of the ECA itself.

Finally, Elliot expresses how the implications of the HS2 analysis extends well beyond our understanding of the status of EU law within the UK legal system. These implications include that of the freedom of Parliament to derogate from EU law provided it makes its intention sufficiently clear. A further implication suggested (as advanced by Lords Neuberger and Mance) is that the extent of EU law’s qualified primacy is delimited by other constitutional methods whose claim to constitutional fundamentally may prove more compelling than that of the ECA itself. Examples of those constitutional methods include the use of other “constitutional” legislation and perhaps some common-law constitutional rights and principles.  He discloses a vision of the British constitution substantially at odds with Diceyan orthodoxy through the judgements of Lords Neuberger and Mance, and to a lesser extent Lord Reed. HS2 case is presented as envisaging a far richer constitutional order in which the differential normative claims of constitutional and other measures fail to be recognized and calibrated in legal terms. The inchoateness of the constitutional vision in HS2 cannot be denied.

[1] [2002] EWHC 195 (Admin)

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