Constitutionalizing Constitutional Law: HS2
 Public Law 373
31 Pages Posted: 1 Jul 2014
Date Written: June 30, 2014
The Supreme Court’s decision in the HS2 case is important for UK constitutional law and for the relationship between the UK and EU legal orders. The judgments are wide-ranging, and this is so notwithstanding the fact that the Supreme Court rejected the challenge to the governmental plans for a high-speed rail network.
The discussion begins with the factual and legal issues involved in the case and the legal conclusion reached by the Supreme Court. This is followed by assessment of its implications for the reception and supremacy of EU law in the UK. The analysis then shifts to the Supreme Court’s critical observations concerning the ECJ’s interpretation of directives relevant to this case, which were counterbalanced to some extent by statements concerning judicial cooperation between national courts and the ECJ.
The remainder of the article is concerned with the Supreme Court’s recognition of constitutional instruments and the implications that this has for UK constitutional law. There is examination of the case law preceding HS2 on this issue, followed by the reasoning of the Supreme Court. It will be argued that this development is to be welcomed, and is warranted on normative grounds. The criteria for identifying constitutional instruments are explored, and so too are the more precise legal implications of recognition of such instruments.
Keywords: constitutional statutes, judicial dialogue, supremacy, statutory interpretation
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