‘Blasphemy Against Basics’: Doctrine, Conceptual Reasoning and Certain Decisions of the UK Supreme Court

Abstract

Using the conceit of Minerva J, a judge wise beyond all telling who administers justice above the Supreme Court concentrating on judicial review cases this paper argues that the abandonment of orthodox doctrine by the Supreme Court in particular on R (Cart) v Upper Tribunal [2011] UKSC 28, [2012] 1 AC 663 (on whether the Upper Tribunal was subject to judicial review) and Jones v First Tier Tribunal [2013] UKSC 19, [2013] 2 AC 48 (on the distinction between law and fact) is much to be regretted. When doctrine is replaced by judicial discretion the law is rendered unnecessarily uncertain and the legitimacy of the judiciary undermined. Minerva does not approve of judicial blasphemy against basics.

JEL Classification: K4, K40, K41, K49