A brief post to draw attention to Lord Reed’s recent Sir Thomas More Lecture entitled “EU Law and the Supreme Court”. Lord Reed devotes part of the lecture to a discussion of the Supreme Court’s decision in R (HS2 Action Alliance Ltd) v Secretary of State for Transport  UKSC 3,  1 WLR 324. Three points are particularly noteworthy.
First, Lord Reed reiterates the view he expressed in his judgment in HS2 concerning the legal basis upon which EU law operates in the UK:
It was argued [in HS2] that, if the Court of Justice required national courts to scrutinise Parliamentary proceedings, then UK courts must do so, because of the primacy of EU law over national law, as established by the jurisprudence of the Court of Justice. Most national constitutional courts have been unwilling to go that far, and have based the status of EU law in their legal systems on their national constitutions, as for example in France and Germany. That reflects the recognition by those courts of their own ultimate responsibility for the protection of the constitutional rights of those within their jurisdiction. The issue of primacy was not squarely addressed in Factortame, but in Thoburn, the “Metric Martyrs” case, Laws LJ considered that the constitutional relationship between EU law and our domestic law was determined by the common law, and that the European Communities Act 1972 fell within a category of constitutional statutes recognised by the common law as protected from implied repeal. In HS2, the Supreme Court considered that the status of EU law in our legal system was derived from the 1972 Act, consistently with section 18 of the European Union Act 2011, and therefore depended upon the effect of the 1972 Act.
Second, Lord Reed examines the reasoning unpinning the Supreme Court’s conclusion that EU law would not necessary prevail over fundamental aspects of UK constitutional law, noting that this conclusion could apply with equal force to constitutional statutes and common-law constitutional principles:
That argument is, I think, readily understandable. The 1972 Act is of the most general nature: it simply provides a basis for the reception into our law of legislation and case law emanating from another legal regime, and therefore not subject to Parliament’s control. It is possible that, in providing that doorway, as it were, Parliament foresaw the possibility of conflicts arising between the law entering through that doorway and all the constitutional statutes which it had ever enacted, and intended those statutes then to be overridden, whatever their subject-matter and however important they might be, as the concomitant of membership of the European Economic Community, as it then was; but the contrary is also strongly arguable. And the same would of course apply, mutatis mutandis, to common law principles of comparable importance.
Third, Lord Reed briefly considers how we might go about identifying constitutional statutes and fundamental common-law constitutional principles:
The discussion so far leads to the question how one identifies constitutional principles, whether contained in constitutional instruments or in the common law, whether a distinction can be drawn between those that are fundamental and those that are not, and how one resolves conflicts between them. These issues were not discussed in the arguments in the HS2 case, and consequently were not addressed in detail in the judgments. The court mentioned a number of examples of constitutional instruments besides the Bill of Rights and the 1972 Act: Magna Carta, the Petition of Right 1628, the Scottish Claim of Right 1689, the Act of Settlement 1701, the Act of Union 1707, the Human Rights Act 1998 and the Constitutional Reform Act 2005. That was not an exhaustive list: I would, for example, add the devolution statutes, and the statutes governing the franchise. The basis for identifying such instruments was not discussed in HS2, but some valuable ideas were put forward by Laws LJ in the Thoburn case, and have been developed in the academic literature, particularly by Prof David Feldman. The category of common law constitutional principles has been discussed to some extent in recent cases concerned with human rights and in academic commentary on those cases, and lies beyond the scope of this lecture, but it would include such matters as open justice and judicial independence.
I consider the constitutional implications of the HS2 judgment in this post and in more depth in this paper. The work of Professor David Feldman referred to by Lord Reed can be found in Feldman’s article on “The nature and significance of ‘constitutional’ legislation” (2013) 129 Law Quarterly Review 343-358.