Thursday, 30 January 2014

The UK Supreme Court Takes a Dim View of Procedural Review

The UK Supreme Court released a very important decision last week: R. (HS2 Action Alliance) v. Secretary of State for Transport, [2014] UKSC 3. David Hart Q.C. has an excellent overview here, while Mark Elliott and Adam Tomkins have commented incisively. The importance of the decision lies in the intersection of domestic constitutional principles and the edicts of European Union law. I will outline this intersection and then note a tension between courts' reluctance to scrutinize the quality of the legislative process and the increasing importance of evidence to judicial review of official action.

Various interest groups oppose the British government's proposal to create a high-speed rail link between London and the north, a proposal outlined in a "command paper". The rail link is a major development which will cost many billions of pounds.

Several issues of European Union law arose in the HS2 case. They related to the need for environmental impact assessment and consultation. The two most interesting issues were whether the command paper should have been subject to two different types of environmental impact assessment (under the SEA and EIA directives).

They were interesting because of the way the government has gone about the project. Rather than going down a conventional route of seeking planning permission through the usual channels the government has chosen a more efficacious way of reaching its objectives. The command paper will be followed by a "hybrid bill" procedure in Parliament which will give the necessary authority to proceed with the development (see para. 57 for an explanation). European Union law does not map neatly onto this route. It is premised on national legislatures setting general guidelines that are then implemented by regulatory bodies subject to the assessment and consultation requirements. The inherent tension between the European Union law framework and the "hybrid bill" procedure explains why the environmental and impact assessment issues were so interesting.

The first issue turned on whether the command paper "set the framework for future development". Although the command paper set out the government's plans in great detail, the Court concluded that it "did not in any way constrain the decision-making process" of Parliament; it would "set the framework" for future debate and "influence" Parliament's final word, but this was not enough to trigger the requirement of an environmental assessment (at para. 37). One could accuse the Court of being formalistic on this point but it is true that no command paper, no matter how detailed, can ultimately constrain the mighty Westminster Parliament.

The second issue turned on the scope of the exemption from the EIA:
This Directive shall not apply to 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.
But the European courts have suggested that the mere fact that a project is adopted by legislation does not automatically trigger the exemption. A judicious judicial eye must also be cast over the substance of the legislative process to  determine whether the "objectives" of the EIA were achieved.

Opponents of the government argued that the hybrid bill procedure would not satisfy the objectives. On a careful reading of the relevant case-law, however, the Court rejected this suggestion. The hybrid bill process would be substantive and put appropriate information before Members of Parliament, thereby triggering the exemption (at paras. 98-99).

More interestingly, the Court was most uncomfortable at the prospect of having to review the quality of Parliamentary debate in order to ascertain whether the legislative process complied with the EIA:
  1. I observe in the first place that there is nothing either in the text of article 1(4) of the EIA Directive, or in the exegesis of that text by the Court of Justice, to suggest that national courts are required not only to confirm that there has been a substantive legislative process and that the appropriate information was made available to the members of the legislature, but must in addition review the adequacy of the legislature's consideration of that information, for example by assessing the quality of the debate and examining the extent to which members participated in it. These are not matters which are apt for judicial supervision. Nor is there anything to suggest the inevitable corollary: that national courts should strike down legislation if they conclude that the legislature's consideration of the information was inadequate.
  1. There is a further difficulty with the contention that EU law requires the internal proceedings of national legislatures to be subject to judicial oversight of this nature. The separation of powers is a fundamental aspect of most if not all of the constitutions of the member states. The precise form in which the separation of powers finds expression in their constitutions varies; but the appellants' contentions might pose a difficulty in any member state in which it would be considered inappropriate for the courts to supervise the internal proceedings of the national legislature, at least in the absence of the breach of a constitutional guarantee.
The issue is of general interest because of the relevance of a healthy legislature to judicial review. A legislature that fails to deliberate appropriately may well find its enactments struck down. One that does a better job may be entitled to deference.

But as the HS2 Action Alliance case indicates, courts are extremely reluctant to scrutinize the legislative process overtly. This has led Bar-Siman-Tov Ittai to argue that there is an emergent species of "Semiprocedural Judicial Review":
What all these European and American cases have in common is that the courts scrutinized the legislative process and evaluated the quality of that process.In all these cases, moreover, the quality of the legislature's decision-making process seemed to influence the court's decision about the constitutionality of the law. However, the examination of the legislative process was not done in isolation, and the quality of that process was not the sole consideration determining the validity of legislation. Rather, the enactment process was reviewed only in cases in which the content of legislation was allegedly unconstitutional. The quality of the process, moreover, was (only) one of the factors courts considered in determining the permissibility of the constitutional infringement. These features make this model semi procedural, rather than purely procedural.
What has all of this to do with administrative law? Policy-making has become much more rational: impact and environmental assessments abound. And judicial review of administrative action has gradually required decision-makers to provide more and more evidence supporting their decisions. Responding to Bar-Siman-Tov, Alberto Alemanno convincingly argues in "The Emergence of the Evidence-based Judicial Reflex" that semi procedural review is not a distinct phenomenon but rather an offshoot of "the increasing evidence based nature of the policy process":
Indeed, as a matter of fact, what characterizes the emergence of this new trend of judicial review is not its procedural (be it full or semi-) component of the review. Rather, what is central to this new form of scrutiny is the instrumental use of the evidence gathered during the decision-making process in order to verify the adequacy and quality of that process. In other words, the common thread among most of the judgments identified by Bar-Siman-Tov appears to be a ‘hunt for objectivity’ in which the procedural component is instrumental to its final objective: a rationality check of the policy process....As previously demonstrated, the stimulus to this nascent impulse is clearly offered by the increasing evidence based nature of the policy process. There is an interesting implication stemming from that. The reflexive nature of this judicial trend implies that courts will turn to the procedural materials accompanying the adoption of the contested act not only when this is available but also when is missing. In other words, the evidence-based judicial reflex – due to its involuntary nature – may prompt courts, when scrutinizing the legality of a given act, to annul that act because the process leading to its adoption departed from some of the ‘principles of proper law making’.
Regardless of whether courts are uncomfortable with overtly scrutinizing the quality of the legislative (or administrative) process, the evolving nature of the policy-making process means that it has become very difficult for courts to avoid 'supervising' the "internal proceedings" of the other branches of government.

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