Constitutional Legislation, European Union Law and the Nature of the United Kingdom's Contemporary Constitution

Abstract

This paper is centrally concerned with the judgment of the UK Supreme Court in R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, [2014] 1 WLR 324. The paper argues that three aspects of the HS2 case form part of a constitutional tableau that exhibits characteristics which are either novel in themselves or which presuppose readings of the constitution that are in some respect novel. First, the case acknowledges that the UK constitution now differentiates between ‘constitutional legislation’ and ‘ordinary legislation’ — a legal distinction that was, until very recently, entirely alien in the British context. Second, HS2 indicates that the former category may itself be hierarchically nuanced, some constitutional legislation (and principles) being more fundamental than others — an insight that impacts upon the way in, and the extent to, which European Union law is considered to enjoy primacy in the UK. Third, and most broadly, the HS2 judgment forms part of a wider narrative arc being advanced by the UK’s senior judiciary, according to which the central notion of parliamentary sovereignty falls to be understood within a constitutional framework that is increasingly rich in nature.

Keywords: constitutional law, European union law, EU law, British constitution, UK constitution, constitutional legislation, common law rights

JEL Classification: K00, K10, K19, K20, K29, K30, K39