A Fresh Start on the UK Supreme Court?

There is little to add to Dr. Mark Elliott's excellent post on today's UKSC decision in Jones v. First Tier Tribunal, [2013] UKSC 19. As Mark notes in his comprehensive and thoughtful entry, Lord Carnwath was refreshingly honest about the role that the distinction between law and fact plays in allowing judges to allocate decision-making between courts and administrative bodies. 

Lord Carnwath quoted (my emphasis added) from some of his extra-judicial writings:

I discussed these developments in an article in 2009 (Tribunal Justice, A New Start [2009] PL 48, pp 63-64). Commenting on Moyna I said:

"The idea that the division between law and fact should come down to a matter of expediency might seem almost revolutionary. However, the passage did not attract any note of dissent or caution from the other members of the House. That it was intended to signal a new approach was confirmed in another recent case relating to a decision of an employment tribunal, Lawson v Serco."

Of Lord Hoffmann's words in Serco itself, I said:

"Two important points emerge from this passage. First, it seems now to be authoritatively established that the division between law and fact in such classification cases is not purely objective, but must take account of factors of 'expediency' or 'policy'. Those factors include the utility of an appeal, having regard to the development of the law in the particular field, and the relative competencies in that field of the tribunal of fact on the one hand, and the appellate court on the other. Secondly, even if such a question is classed as one of law, the view of the tribunal of fact must still be given weight...

I would offer two further observations.

First, if courts are using the formal law/fact distinction -- or, for that matter, other distinctions, such as jurisdictional/non-jurisdictional error, law/policy, or law/discretion -- to achieve substantive ends, they ought to be clear about what those substantive ends are. Clearly, the Supreme Court thinks it is appropriate to defer widely to the First Tier and Upper Tribunals. The Court should be clear about why it considers this to be the appropriate approach. Masking substantive ends with formal references to law and fact is unhelpful.

Secondly, the Supreme Court should recognize that the implications of Lord Carnwath's comments resound far beyond the confines of the First Tier and Upper Tribunals. Legislative choice to vest decision-making authority in these bodies, allied to their expertise, the complexity of the problems with which they deal and the ability of interested parties to participate in their proceedings justifies a deferential approach to judicial review of their decisions. But these reasons apply with equal -- and sometimes greater -- force to other bodies established by Parliament to deal with matters of policy. This is a point that English courts have been reluctant to concede.

Perhaps Lord Carnwath's comments -- supported by a majority of the Supreme Court -- indicate A Fresh Start.