UK Constitutional Law Association: Anurag Deb and Conor McCormick: Lee v Ashers: A Recipe for Jurisdictional Confusion?
On 10 October 2018, the UK Supreme Court handed down its judgment in Lee v Ashers Baking Company Ltd  UKSC 49, sparking much debate and commentary. The judgment is legally important for how it conceptualises freedom of expression, and for the surprising evidence of judicial overreaching it contains. Given that others have already considered the former issue in some depth (see Chandrachud andRowbottom on this blog alone), we focus on the latter in this post.
The relevant part of the Ashers judgment is located in a unanimous opinion authored by Lord Mance JSC ( UKSC 49, –) and concerned a procedural dispute between the appellant bakery, the Attorney General for Northern Ireland (“AGNI”) and the Northern Ireland Court of Appeal (“NICA”).
Cases heard by the County Court in Northern Ireland are appealable on a point of law to the NICA, requiring the County Court Judge to state a case thereto. The relevant legislation (art. 61(7) of the County Courts (Northern Ireland) Order 1980 (“CCNI”)) provides that any decision by the NICA in cases stated to it “shall be final”, except for appeals in criminal matters and matters in which the validity of devolved Northern Ireland legislation is called into question (ss. 41 and 42 of the Judicature (Northern Ireland) Act 1978). Ashers concerned the validity of devolved legislation pertaining to a political opinion discrimination claim, so the preservation of this appeal exception in that claim was uncontroversial.
The source of controversy was on two fronts: the first was whether a sexual orientation discrimination claim could be appealed to the Supreme Court in light of the finality provision in the CCNI (given that it did not involve law made by or under an Act of the old Northern Ireland Parliament or a Measure of the old Northern Ireland Assembly, but rather law made under the semi-protective cloak of legislation passed by the UK Parliament).
The second involved a bit of tortuous procedure. The NICA handed down its judgment in the main appeal on 24 October 2016 but the judgment was not sealed and filed in the form of a final order until 31 October 2016. In the meantime, the AGNI had served the NICA with a notice requiring the Court to make a reference under paragraph 33, Schedule 10 of the Northern Ireland Act 1998 (“NIA”) which authorises the AGNI to require any court or tribunal to make references to the Supreme Court of any devolution issues (such as the validity of non-devolved legislation) which have arisen in ongoing proceedings. The NICA rejected the AGNI’s ability to require a paragraph 33 reference as judgment had been handed down ( NICA 55). In response, the AGNI made two references under paragraph 34, Schedule 10 of the NIA, which authorises references to the Supreme Court of any devolution issues which are not the subject of ongoing proceedings. While the first of these references was similar to the rejected paragraph 33 reference, the second reference concerned the validity of the NICA objection to the paragraph 33 reference.
The Supreme Court unanimously upheld both the appealability of the sexual orientation claim and the validity of the two references. The NICA objection to the paragraph 33 reference was ruled unlawful on what might be described as a purposive construction of the paragraph 33 procedure, given the legal desirability of correcting any erroneous approach by courts below in ongoing proceedings ( UKSC 49, ). The extent to which this interpretation rubs shoulders with the purpose of the paragraph 34 procedure calls for careful consideration. By delineating the dividing line as it has, the Supreme Court has created previously unforeseen potential for judicial ignominy by way of paragraph 33 references in post-judgment/pre-order challenges to settled decisions – as opposed to tentative opinions – of the NICA. Determining whether a paragraph 33 referral of this type should be used instead of a paragraph 34 referral will require a complex assessment of public interest factors including not only the desirability of ensuring the law is decided correctly in a given set of proceedings, but also the maintenance of respect for the institutional independence of the NICA and cognisance of the additional costs that will accrue to private parties involved in unexpectedly extended civil proceedings. The Supreme Court rightly acknowledged, therefore, that the constitutional sustainability of this dividing line assumes a high level of trust in the AGNI ( UKSC 49, ).
If we turn to the appealability of the sexual orientation claim however, we find ourselves in a legal and constitutional quagmire. The Supreme Court held that where the NICA refuses to notify a paragraph 33 reference on account of an error of its own jurisdiction to notify such a reference, the remedy must lie in appealing the substantive case which would be the subject of such a reference, without which the party wronged as a result of the court’s error would have no remedy for the said error (a paragraph 34 reference does not bind courts as to any proceedings, nor influence their result in any way) ( UKSC 49, ).
The NICA fell into an error of jurisdiction which was only rectifiable after the determination of a procedurally convoluted and legally uncertain combination of appeal and reference. In considering how to deal with this error of jurisdiction, the Supreme Court began by holding that the landmark decision in Anisminic Ltd. v FCC  2 AC 147, which abolished the old distinction between jurisdictional and substantive legal errors, was inapplicable to courts, particularly a superior court such as the NICA ( UKSC 49, –). The authority on which this presumption was based was Re Racal Communications Ltd.  AC 374. Having thus held, the Supreme Court was free to hold that, the finality provision in the CCNI notwithstanding, procedural or jurisdictional errors were appealable and, moreover, that the exclusion of such appealability would only be countenanced by “unusual and surprising” words on the face of the corresponding statute ( UKSC 49, ).
The Supreme Court’s ratio is confusing and concerning, particularly given its reliance onRacal, in which Lord Diplock robustly equated the words “final and conclusive” (language similar to the CCNI) and “not appealable” and held that both precluded any appeals being entertained against such final orders, whether of the procedural or substantive species ( AC 374, , ).
More than that, the House examined a previous case where the EWCA had split questions of procedural and substantive law in a manner similar to Lord Mance when faced with a finality provision: Pearlman v Keepers and Governors of Harrow School  QB 56. The majority had upheld the EWCA’s ability to correct by certiorari any jurisdictional errors in the County Court, over the express warning by Geoffrey Lane LJ: “It seems to me that, if this judge is acting outside his jurisdiction, so then is every judge who comes to a wrong decision on a point of law.” In Racal, Geoffrey Lane LJ’s dissent won the House andPearlman was declared to have been wrongly decided ( AC 374, ).
Finally, though Lord Diplock suggested that the distinction between jurisdictional and substantive errors of law may be preserved when looking at adjudication by courts instead of administrative tribunals, his Lordship spoke in the context of inferior courts, of which the NICA is definitely not one.
While it is true that the NICA is a creature of statute, it is far removed from other courts created by statute. The NICA is the direct successor to the original Court of Appeal in Ireland created by the Supreme Court of Judicature Act (Ireland) 1877, section 24 of which authorised the exercise of the entirety of the High Court’s original jurisdiction in any appeal. This provision has never been eroded from the present NICA and is unique in that no other statutory court in Northern Ireland is authorised to exercise such a vast jurisdiction.
Ultimately, the most startling aspect of the Supreme Court’s unanimous ruling on the appealability of jurisdictional errors is its sheer sweep. Lord Mance JSC, without addressing any of the constitutional nuances evident in Racal and in the establishment, powers and jurisdiction of the NICA, focussed on (1) the statutory construction of the CCNI and (2) the position in which Ashers found itself when the NICA rejected the paragraph 33 reference notification. Thus, it remains unanswered whether errors of jurisdiction only have now become a new class of appeal generally in addition to existing avenues of appeal.
While the Supreme Court’s anxiety over ensuring that errors of jurisdiction do not taint ongoing proceedings and lead to injustice is understandable, we suggest that Ashers was the exception and not the norm. Even if it were the norm, Lord Diplock’s words in Racalwould be no less applicable: “if, as in the instant case, the statute provides that the judge’s decision shall not be appealable, [mistakes of law] cannot be corrected at all” ( AC 374, ). It may be discomforting to shrug shoulders when a statutory finality provision results in a perceived injustice but, in our view, legal certainty and clarity are overall preferable to a rushed expansion of the Supreme Court’s appellate jurisdiction when faced with a perfect storm.
What we respectfully suggest instead, as a viable alternative that would preserve statutory finality provisions and thus legal certainty, is confirmation that the paragraph 33 refusal is itself appealable. It is enigmatical that the NICA asks itself questions of both substantive law (whether a request to notify is a proper devolution issue and whether such an issue has arisen in ongoing proceedings) and procedural law (whether, aside from considerations of substantive law, the NICA has jurisdiction to make such a notification). Any refusal to notify by the NICA could thus be tainted by either substantive or procedural errors, or both, which could only be corrected by appeal (as the Supreme Court has no original jurisdiction in which to entertain correction by certiorari). Such an appeal would also maintain the reform to UK public law ushered in by Anisminic, ignoring the somewhat unconvincing attempt by the Supreme Court to invoke pre-Anisminic public law principles against a superior court of record by radically re-reading an authority (Racal) which promised nothing of the sort.
On the obvious concern that the NIA is entirely silent on the appealability of a paragraph 33 refusal, we say that such appealability can be necessarily implied by virtue of the nature of the reference itself. That such a reference is not merely a rubber-stamp exercise on the part of the NICA is amply illustrated by its careful consideration given in the Asherscase. Thus, there must exist a way of determining with certainty that such a reference is correctly made, particularly given that it is the NICA and not the AGNI which is the notifying body for the purposes of such a reference. Finally, the NICA rejection of the paragraph 33 request was made in the form of a judgment duly handed down, and presumably sealed and filed in the normal way as a final order. Ceteris paribus, such an order is in all likelihood appealable to the Supreme Court in the normal way.
Anurag Deb, paralegal at KRW LAW LLP (Belfast) and BPTC student (University of Law)
Conor McCormick, Lecturer in Law, Queen’s University Belfast
(Suggested citation: A. Deb and C. McCormick, ‘Lee v Ashers: A Recipe for Jurisdictional Confusion?’, U.K. Const. L. Blog (18th Oct. 2018) (available at https://ukconstitutionallaw.org/))