The HS2 judgment: European Law not supreme? Some statutes might be immune from it? Who says?

You'll recall section 2(1) European Communities Act 1972?

All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression [“enforceable EU right”] and similar expressions shall be read as referring to one to which this subsection applies.

Which means that EU law trumps the law of England and Wales whenever the two collide.  As the ECJ instructed the House of Lords in Factortame:

20. The court has also held that any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent, even temporarily, Community rules from having full force and effect are incompatible with those requirements, which are the very essence of Community law (see theSimmenthal case Case 106/77 [1978] ECR 629 at 644 at (paras 22–23)).

To which Lord Bridge replied:

If the supremacy within the European Community of Community law over the national law of member states was not always inherent in the EEC Treaty it was certainly well established in the jurisprudence of the Court of Justice long before the United Kingdom joined the Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary. Under the terms of the 1972 Act it has always been clear that it was the duty of a United Kingdom court, when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law. 

But apparently it may not always be the duty of the UK Court to override all such rules of national law in conflict with EU Law:  The Supreme Court was asked in the HS2 appeals to consider whether the hybrid bill procedure (which is in use to bring the high speed line to legislative fruition) is sufficient for the purposes of several EU Directives and other provisions which require minimum public consultation and involvement safeguards before a high speed rail line is driven through the back gardens of middle England.  The Sup Ct, but not the parties, spotted the massive constitutional hazard on the line which prevents the Court considering the efficacy of parliamentary procedure: Article 9 of the Bill of Rights no less:

Lords Neuberger  and Mance P and JSC:

In the case of the United Kingdom, the approach suggested by the two Advocates General would raise a particular issue of a kind which article 1(4) (formerly 1(5)) was no doubt intended to avoid. It is, we recognise, one that may be specific to the United Kingdom. Article 9 of the Bills of Rights, one of the pillars of constitutional settlement which established the rule of law in England in the 17th century, precludes the impeaching or questioning in any court of debates or proceedings in Parliament. Article 9 was described by Lord Browne-Wilkinson in the House of Lords in Pepper v Hart [1993] AC 593, 638, as "a provision of the highest constitutional importance" which "should not be narrowly construed". More recently, in the Supreme Court case of R v Chaytor and others [2011] 1 AC 684, para 110, Lord Rodger of Earlsferry said this:

"[I]n his Commentaries on the Laws of England, 17th ed (1814), vol 1, Bk 1, chap 2, p 175, under reference to Coke's Institutes, Blackstone says that the whole of the law and custom of Parliament has its original from this one maxim: 'that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that house to which it relates, and not elsewhere.'"

Some laws are more important than others, and some laws might not apparently, be subject to the Factorame treatment:

Under the European Communities Act 1972, United Kingdom courts have also acknowledged that European law requires them to treat domestic statutes, whether passed before or after the 1972 Act, as invalid if and to the extent that they cannot be interpreted consistently with European law: R v Secretary of State, Ex p Factortame Ltd (No 2) [1991] 1 AC 603. That was a significant development, recognising the special status of the 1972 Act and of European law and the importance attaching to the United Kingdom and its courts fulfilling the commitment to give loyal effect to European law. But it is difficult to see how an English court could fully comply with the approach suggested by the two Advocates General without addressing its apparent conflict with other principles hitherto also regarded as fundamental and enshrined in the Bill of Rights. Scrutiny of the workings of Parliament and whether they satisfy externally imposed criteria clearly involves questioning and potentially impeaching (i.e. condemning) Parliament's internal proceedings, and would go a considerable step further than any United Kingdom court has ever gone.

The United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Rights Act 1689, the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list. The common law itself also recognises certain principles as fundamental to the rule of law. It is, putting the point at its lowest, certainly arguable (and it is for United Kingdom law and courts to determine) that there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation.

We are not expressing any view on whether or how far article 9 of the Bill of Rights would count among these, but the point is too important to pass without mention. We would wish to hear full argument upon it before expressing any concluded view. It is not a point upon which the parties before us proposed to make any submissions until it was raised by the Court. We were then told that the attention of the Parliamentary authorities (and we deliberately use a vague expression) had been drawn to this appeal, and they elected not to be represented. If and when the point does fall to be considered, the Parliamentary authorities may wish to reconsider whether they should be represented, and, particularly if they still regard that course as inappropriate, it may well be the sort of point on which the Attorney General should appear or be represented. Important insights into potential issues in this area are to be found in their penetrating discussion by Laws LJ in the Divisional Court in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), [2003] QB 151, (The Metric Martyrs case), especially paras 58-70, although the focus there was the possibility of conflict between an earlier "constitutional" and later "ordinary" statute, rather than, as here, between two constitutional instruments, which raises yet further considerations.

Laws LJ in the above named case said this:

Ordinary statutes may be impliedly repealed. Constitutional statutes may not. For the repeal of a constitutional Act or the abrogation of a fundamental right to be effected by statute, the court would apply this test: is it shown that the legislature's actual – not imputed, constructive or presumed – intention was to effect the repeal or abrogation? I think the test could only be met by express words in the later statute, or by words so specific that the inference of an actual determination to effect the result contended for was irresistible. The ordinary rule of implied repeal does not satisfy this test. Accordingly, it has no application to constitutional statutes. I should add that in my judgment general words could not be supplemented, so as to effect a repeal or significant amendment to a constitutional statute, by reference to what was said in Parliament by the minister promoting the Bill pursuant to Pepper v Hart [1993] AC 593. A constitutional statute can only be repealed, or amended in a way which significantly affects its provisions touching fundamental rights or otherwise the relation between citizen and State, by unambiguous words on the face of the later statute.

This development of the common law regarding constitutional rights, and as I would say constitutional statutes, is highly beneficial. It gives us most of the benefits of a written constitution, in which fundamental rights are accorded special respect. But it preserves the sovereignty of the legislature and the flexibility of our uncodified constitution. It accepts the relation between legislative supremacy and fundamental rights is not fixed or brittle: rather the courts (in interpreting statutes, and now, applying the HRA) will pay more or less deference to the legislature, or other public decision-maker, according to the subject in hand. Nothing is plainer than that this benign development involves, as I have said, the recognition of the ECA as a constitutional statute.

Which can only lead me to ask What is a Constitutional Statute/instrument? How is it defined? Who defined it? What democratic legitimacy did they have when they defined it? and What has any of this go to do with the Judges who apply and do not make (save for the odd increment to the common law) the law?

The absence of a written constitution does not mean that we should let the Judges write one for us.  The Supreme Court is wrong and Laws LJ was wrong - unless or until some constitutional revolution takes place and some higher norm is enacted by the common consent of the people, then it remains the constitutional position that all statutes, enacted by Parliament, are equal.  They are all subject to EU Law (so long as the 1972 Act stays on the books), are all are subject to implied or express repeal by a majority in Parliament and none are entrenched.  If the Bill of Rights needs to be overridden by virtue of section 2(1) of the 1972 Act, then the Supreme Court better get on with it according to the judicial oaths they swore to apply the law.  That is what Parliament has told them to do.  It is not for them to refuse.  It is not for them to decide that Parliament did not actually intend them to set aside the Bill of Rights or the like when it enacted the 1972 Act -  how do they derive that from its words or from Hansard?  If Parliament were to amend section 2(1) to protect some category of constitutional statute/instrument from its purview, then that would be a different matter, albeit likely a breach of EU law which would be chastised by the ECJ. 

Stop pretending otherwise in obiter dicta that nobody elected you to declare!  When the Ct says that it cannot go further because it did not hear argument on the point - that is the least of my concerns-   it is has not heard the democratic process on the point either!

I support constitutional reform in this country, i.e. the enactment of a higher norm, probably a written constitution, by common consent, so that these questions can be debated, voted upon and enacted. Some higher norms, rights and duties should be entrenched so as to be protected from the simple political majorities of governments. 

But these questions are not for Judges (nor lawyers), but for people, i.e. the people.  

Meanwhile, the Sup Ct, should leave well alone.