Lee v Ashers Baking Company Ltd [2018] UKSC 49 (‘gay cake’ case) has probably not escaped the attention of any public lawyer. As Anurag Deb & Conor McCormick have usefully pointed out in a recent blog post, however, what may have been overlooked is that this case is not only important from a human rights or equality perspective, but from an administrative law perspective too. This is because the case contains a judgment, delivered by Lord Mance, which offers the unanimous court’s view on the meaning of a finality clause contained in the County Courts (Northern Ireland) Order 1980.

This blog has three aims. Firstly, it offers an overview of the Supreme Court’s approach to the finality clause in Lee v Ashers. Secondly, it engages and take issue with Deb & McCormick’s critique of Lord Mance’s judgment. Thirdly, it offers some concluding reflections on the importance of this case for the ongoing Privacy International litigation.

The Finality Clause

The Court of Appeal of Northern Ireland (‘NICA’) handed down judgment in the Lee v Asher litigation on 26^th October 2016. A week passed between this date and the making of the final order. In this interim period, the Attorney General for Northern Ireland (‘AG’) invoked a power contained in Schedule 10, para 33 of the Northern Ireland Act 1998 to ‘require [the NICA] to refer to the Supreme Court any devolution issue which has arisen in proceedings before it.’ This gave rise to an important question for NICA: was it required to comply with the AG’s direction? The NICA concluded that it was not.

The issue which Lord Mance considered in Lee v Asher was the extent to which decisions of this kind are protected by the following finality clause:

Except as provided by section 41 of the Judicature (Northern Ireland) Act 1978 the decision of the Court of Appeal on any case stated under this article shall be final.

Two main readings of this provision were considered in the Supreme Court. The NICA urged a broad reading. Its core suggestion was that Article 61(7) protects all decisions taken by the NICA unless a specific exemption can be found in legislation. Such an exception can be found, for instance, in section 41 of the Judicature (Northern Ireland) Act 1978 which provides for a right of appeal to the Supreme Court against decisions on criminal matters. There is, however, no specific statutory right of appeal for decisions of the NICA concerning compliance with an AG direction which are therefore regarded as ‘final’ under Article 61(7).

The Supreme Court rejected this broad reading in favour of a narrower one. Lord Mance, throughout his judgment, placed emphasis on the importance of reading such clauses in their legal context. Particularly important for his Lordship was subsection (1) of the same Article which provides as follows:

Except where any statutory provision provides that the decision of the county court shall be final, any party dissatisfied with the decision of a county court judge upon any point of law may question that decision by applying to the judge to state a case for the opinion of the [NICA]on the point of law involved.

When (7) is read against the background of (1), Lord Mance explained, it becomes clear that it is only a particular category of the NICA’s decisions which are protected by the finality clause. In particular, where the NICA hears an appeal on a point of law from the county court and renders judgment, its view on that point of law is to be regarded as conclusive (unless statute specifically provides for further appeal to the Supreme Court). Decisions by the NICA as to compliance with AG directions, however, do not fall within that category and, as such, are not protected by Article 61(7).

This is a convincing line of reasoning, especially because (7) states that ‘the decision of the [NICA] on any case stated under this article shall be final.’ Lord Mance’s conclusion could, furthermore, be bolstered by drawing out other aspects of the legal context. It is often said that finality clauses fall to be construed against the background of the rule of law. One important aspect of the rule of law was enunciated by Lady Hale in Cart v Upper Tribunal in the following terms:

There is always the possibility that a judge at any level will get [a decision] wrong. Clearly there should always be the possibility that another judge can look at the case and check for error. ([56])

The broad reading of Article 61(7) advanced by the NICA sits uncomfortably with this principle. It is one thing to say that the Court of Appeal’s decision on an appeal from the county court is (unless there is a specific exception) to be regarded as final. It is quite another to say that the NICA is also free to make certain categories of initial decision – including decisions concerning compliance with an AG direction – which are wholly immune from scrutiny of any kind by a higher court.

One final point is worth drawing out about Lord Mance’s judgment before turning to Deb & McCormick’s critique. In the course of rendering judgment Lord Mance referred to two classic cases: Anisminic and Racal. When these references are read in the broader context of his judgment, it becomes clear that Lord Mance was relying on them in a very limited and particular way. His Lordships’ point in referring to Anisminic was to emphasise that the case concerned the extent to which an ouster clause, when read properly, protected the decisions of a very different kind of body to NICA and the House of Lords’ conclusion in Anisminic therefore could not be straightforwardly applied in Lee v Ashers. Similarly, in referring to Racal Lord Mance sought to draw out Lord Diplock’s point that, when considering the extent to which a finality clause protects the decisions of another court, everything ultimately ‘depends upon the construction of the statute’ which forms the relevant legal background to the case.

Responding to Deb & McCormick

Deb & McCormick’s critique of Lord Mance’s judgment has a number of different strands. This post will focus on only one: the provocative suggestion that Lee v Asher is a ‘recipe for jurisdictional confusion.’ The key criticism of Deb & McCormick’s comment which this post seeks to stress is that the authors have, in analysing Lord Mance’s judgment, sought to fit it into a preconceived legal framework and in doing so failed to take seriously the legal reasoning process which his Lordship actually deployed in deciding the case.

The analysis of Deb & McCormick, at least as I understand it, runs like this: Lord Mance’s starting point in deciding the issue in Lee v Asher was with the dichotomy between types of decision-maker which Lord Diplock famously draw in Racal. According to this dichotomy, there are two distinct kinds of decision-making body. On the one hand, there are administrative decision-makers in relation to which, as Anisminic makes clear, the distinction between jurisdictional and non-jurisdictional errors of law has no applicability. On the other, there are inferior courts which in theory retain the ability to commit legal areas within jurisdiction. Moving from this starting point, Deb & McCormick then read Lord Mance as engaging in a process of categorisation whereby his Lordship sought to place the NICA on one side of this dichotomy. They read his Lordship as having placed the NICA in the second category, a conclusion which they have at least two issues with. Firstly, they express concern, in light of the constitutional significance of the court, about the appropriateness of labelling the NICA as an ‘inferior court.’ Secondly, they regard it as a logical consequence of placing the NICA in Lord Diplock’s second category that the Supreme Court has resurrected in this context the distinction between jurisdictional and non-jurisdictional errors of law. This is a move which Deb & McCormick lament as marking a return to ‘pre-Anisminic principles’ which is apt to inject confusion and uncertainty into the law.

This analysis, however, fundamentally misreads Lord Mance. Although it is true that his Lordship drew on Racal in the course of rendering judgment, when his judgment is read as a whole it is clear that his intention in doing so was to stress that the effect of a finality clause is always to be determined by a process of construction which places that provision in its broader legal context. At no point in his judgment, furthermore, does his Lordship engage in a process of categorisation where he asks in which of Lord Diplock’s categories the NICA is to be placed. The language of ‘jurisdictional’ and ‘non-jurisdictional’ errors is, furthermore, wholly absent from Lord Mance’s judgment.

If anything is apt to provide a ‘recipe for jurisdictional confusion,’ in other words, it is not the Supreme Court’s judgment. Lord Mance’s message and conclusion is quite clear and straightforward: when faced with a finality clause the central question is always what that clause protects when it is read properly and in its broader legal context. When this is done in relation to Article 61(7), furthermore, it is clear that that provision protects only a specific class of the NICA’s decisions. Confusion, rather, breeds when that judgment, or judgments generally, are forced into legal frameworks which are not actually deployed by judges themselves.

Privacy International

It is useful to conclude this post by offering a few words on the importance of this case in the upcoming hearing of Privacy International in the Supreme Court. Lord Mance’s judgment might give us a useful indication of what we might expect. Two major themes in particular run through it. Firstly, the importance of reading finality clauses in their broader legal context. We should expect the Supreme Court, therefore, to be highly attentive to the question of what section 67(8) of the Regulation of Investigatory Powers Act 2000 (‘RIPA’) means when that provision is read against the background of the broader legislative framework in which it arises and to concern itself much less with questions such as how the Investigatory Powers Tribunal is to be classified against a categorisation scheme such as that enunciated by Lord Diplock in Racal. The second theme is the recognition that a singular finality clause can have a different effect depending on what the applicant seeks to challenge. One thing which is deeply interesting about Lee v Ashers, more particularly, was that the Supreme Court clearly recognised that while Article 61(7) has the effect of protecting certain decisions of the NICA from further scrutiny it does not protect all. This is an important point in the context of Privacy International because, as Tom Fairclough has pointed out, the Court of Appeal in deciding this case clearly viewed the central question in binary terms: either s67(8) is to be read as effectively excluding the courts’ review function in its entirety or not at all. Against this background, the significance of Lee v Ashers may be that it is an indication that the Supreme Court will not think of the issue in such way and will be more open to the idea that the effect of s67(8) differs according to the nature of the challenge brought.

Dr Joana Bell is College Lecturer and Fellow at St John’s College and Affiliated Lecturer at the Faculty of Law, University of Cambridge.

(Suggested citation: J. Bell, ‘The Supreme Court’s Approach to the Finality Clause in Lee v Ashers: A Response to Anurag Deb & Conor McCormick & Looking Forward to Privacy International‘, U.K. Const. L. Blog (23rd Oct. 2018) (available at https://ukconstitutionallaw.org/))