Fabricated quotations, selective authority, and the creep of modernism: A procedural, jurisprudential, and cultural analysis of Peggie v NHS Fife
Introduction
The Employment Tribunal decision in Peggie v NHS Fife and Dr Beth Upton has attracted exceptional scrutiny, not primarily because of its outcome, but because of the manner in which that outcome was reasoned. Subsequent examination by lawyers, academics, and journalists has identified multiple instances in which the judgment appears to attribute quotations or legal propositions to higher courts that do not, in fact, appear in the cited authorities. In other instances, binding Supreme Court reasoning is cited selectively in a way that materially alters its meaning.
This analysis does not engage in polemic about the underlying social or political issues raised by the case. Its concern is narrower and more fundamental: whether the decision, as reasoned, conforms to the basic requirements of judicial method within the UK’s common law system. The issue is not whether the tribunal could have reached the conclusions it did, but whether it did so through lawful reasoning grounded in accurate citation of authority. It further argues that the defects identified are not merely technical, but symptomatic of a broader cultural shift—namely, the intrusion of modernism and emotionalism into professional reasoning, including within the judiciary itself.
Judicial Reasoning and the Authority of Precedent
The common law depends upon a disciplined hierarchy of courts and a corresponding discipline of citation. Lower courts are bound not by their impression of what higher courts must have intended, but by what those courts actually said, read in context and according to established principles of interpretation. Authority in this system is textual, constrained, and externally given.⁵
Judicial reasoning therefore requires submission to precedent, not management of it. When a tribunal attributes a proposition to an appellate court—especially a general proposition of law—it assumes a heavy burden of accuracy. Where such a proposition cannot be found in the cited authority, the problem is not cosmetic. It indicates that the tribunal may have substituted its own synthesis or preference for binding law, while presenting that synthesis as authoritative.
The Forstater (EAT) Misattribution and the Creation of a Non-Existent Principle
The tribunal judgment relies on Forstater v CGD Europe (Employment Appeal Tribunal) for the proposition that the Equality Act 2010 “does not create a hierarchy of protected characteristics.” This proposition is presented as something emphasised by the EAT and is used to support the broader conclusion that sex-based rights cannot, as a matter of law, be treated as decisive where they conflict with other protected characteristics.
A review of the Forstater EAT judgment confirms that this proposition does not appear in the text. The word “hierarchy” does not occur, nor does any materially equivalent formulation. The EAT’s reasoning is concerned with whether gender-critical belief satisfies the criteria articulated in Grainger plc v Nicholson and with the compatibility of belief protection with Convention rights.¹⁶
This matters because the Equality Act itself plainly contemplates contextual prioritisation. It contains schedules, exceptions, and proportionality mechanisms precisely because conflicts between protected characteristics are anticipated and must be resolved by structured legal reasoning.⁷ By attributing a “no hierarchy” principle to Forstater, the tribunal effectively introduces a rule of law that the appellate court did not state, thereby altering the statutory landscape without authority.
The Lee v Ashers (UKSC) Misquotation and the Misuse of Convention Jurisprudence
A similar defect arises in the tribunal’s reliance on Lee v Ashers Baking Company Ltd. The judgment attributes to the Supreme Court the statement that “there is no hierarchy of rights; all are to be treated with equal respect,” presenting this as a proposition “noted” by the Court in the context of balancing competing Convention rights.
The Ashers judgment does engage with Articles 9 and 10 of the European Convention on Human Rights and affirms the necessity of proportionality when rights conflict.⁸ However, the Supreme Court does not articulate a general principle of non-hierarchy of rights in the terms attributed to it. The word “hierarchy” does not appear in the judgment at all.²
This is not a trivial misquotation. Convention jurisprudence has consistently rejected abstract equalisation of rights in favour of context-specific proportionality analysis.⁹ To transform that method into a blanket rule of non-hierarchy is to misstate the law. To attribute that misstatement to the Supreme Court compounds the error and lends unwarranted authority to the tribunal’s own synthesis.
Selective Quotation from For Women Scotland (UKSC) and the Distortion of Ratio
The tribunal’s use of For Women Scotland Ltd v Scottish Ministers presents a more complex but equally serious problem. Unlike Forstater and Ashers, the wording relied upon does appear in the Supreme Court’s judgment—but only as part of a longer paragraph whose continuation significantly qualifies the initial observation.
The Supreme Court noted that some trans-identified males may, in practice, use female-only facilities without compromising the privacy and dignity of other women. However, the Court immediately added that the Scottish Ministers did not contend that such individuals are legally entitled to do so, and went on to explain the serious practical and legal difficulties that would arise if certificated sex were treated as determinative in the provision of single-sex services.³¹⁰
By extracting only the opening clause and omitting the qualifying analysis, the tribunal presents the Supreme Court as supporting a conclusion which the Court itself treated as problematic. This is not merely a question of emphasis. It risks converting a descriptive observation into a normative entitlement, contrary to the ratio of the case.¹¹
Modernism, Emotionalism, and the Erosion of Professional Method
Taken together, these defects point to something more than isolated error. They reflect a broader phenomenon increasingly visible across professional and institutional life: the displacement of disciplined method by a form of applied emotionalism, often operating under the language of sensitivity, inclusion, or pragmatic fairness.
In legal reasoning, this manifests as outcome-driven analysis. Conclusions are reached first—shaped by perceived equities or contemporary moral assumptions—and authority is then curated, paraphrased, or reconstructed to support those conclusions. Where the source text resists, it is truncated; where it is silent, a synthetic principle is supplied.
This pattern accords with longstanding critiques of modernism in law, particularly the replacement of objective legal meaning with subjective or instrumental interpretation.¹² Authority ceases to be something to which the judge submits, and becomes something to be managed. The tribunal’s language—“we consider,” “it suggests to us,” “can be taken to agree”—moves from interpretation into augmentation, extending authority beyond its textual limits.¹³
Emotional Salience and the Collapse of Evidential Discipline
A further feature of this shift is the growing role of emotional salience in shaping professional judgment. Certain outcomes come to be treated as morally obvious, while contrary arguments are framed as technical, marginal, or suspect. Once this asymmetry is established, evidential discipline weakens.
In such an environment, citation no longer constrains reasoning but legitimises it. Precision yields to plausibility. What a court “must have meant” replaces what it actually said. This phenomenon has been observed across multiple professional disciplines, including law, medicine, and education.¹⁴
The danger is not ideological bias alone, but epistemic unreliability. The legal method depends upon maintaining clear distinctions between authority, inference, and preference. When those distinctions blur, professional reasoning loses its anchor.
The Professionalisation of Modernism
What is particularly striking in Peggie v NHS Fife is that these tendencies appear not merely in advocacy or commentary, but within a formal judicial decision. This suggests that modernist and emotionalist reasoning is no longer merely exerting pressure on institutions from without, but is being internalised by professional actors themselves.
When professionals cease to perceive a sharp distinction between rigorous method and morally desirable outcome, procedural safeguards are experienced as obstacles rather than disciplines. The law becomes flexible not because Parliament has made it so, but because method has softened.¹⁵ In the judicial context, this marks a quiet but consequential shift from adjudication as fidelity to enacted law and binding precedent, toward adjudication as moral arbitration informed by contemporary sensibilities.
The Slip Rule and Its Constitutional Limits
The debate over correction under the slip rule must be understood in this context. The slip rule permits the correction of clerical or accidental errors. It does not permit the reconstruction of substantive reasoning.⁴¹⁷
Where entire paragraphs depend upon propositions that do not exist in the cited authorities, the defect is structural, not accidental. To correct such defects would require re-reasoning, not amendment. That task belongs to appellate courts. To use the slip rule to preserve outcomes while repairing reasoning would collapse the distinction between correction and appeal and undermine constitutional safeguards.¹⁸
Implications for the Tribunal System and Public Confidence
Employment Tribunals adjudicate matters of livelihood, dignity, and statutory rights, often in cases of intense public sensitivity. Their authority rests not on prestige but on procedural rigour and transparent reasoning.
When a tribunal judgment appears to rely on invented or selectively edited authority, the damage extends beyond the individual case. It risks eroding confidence in the tribunal system as a whole. Public trust in adjudication depends upon the perception that judges are constrained by law rather than liberated by moral intuition.¹⁹
Conclusion
The difficulties exposed by Peggie v NHS Fife are not reducible to politics or culture-war disagreement. On a strictly legal analysis, at least two appellate propositions attributed by the tribunal cannot be located in the cited authorities, while a third is presented in a materially incomplete form. These are not clerical errors. They go to the integrity of the reasoning process itself.
More broadly, the case illustrates how modernism and emotionalism—once confined to commentary and advocacy—are now shaping professional judgment within institutions charged with upholding the rule of law. In a system governed by precedent, accuracy is not an aesthetic preference; it is the condition of legitimacy. Where authority is misquoted, reconstructed, or selectively presented to support a preferred narrative, the resulting decision cannot command confidence without appellate scrutiny.
¹ Forstater v CGD Europe [2021] ICR 1 (EAT).
² Lee v Ashers Baking Company Ltd [2018] UKSC 49.
³ For Women Scotland Ltd v Scottish Ministers [2022] UKSC 16, para 213.
⁴ CPR r 40.12.
⁵ Young v Bristol Aeroplane Co Ltd [1944] KB 718.
⁶ Grainger plc v Nicholson [2010] ICR 360 (EAT).
⁷ Equality Act 2010, ss 13–19; Sch 3.
⁸ Ashers, paras 54–56.
⁹ Kokkinakis v Greece (1993) 17 EHRR 397; Eweida v United Kingdom (2013) 57 EHRR 8.
¹⁰ For Women Scotland, paras 213–215.
¹¹ R (Miller) v Prime Minister [2019] UKSC 41, on ratio and context.
¹² A.V. Dicey, Introduction to the Study of the Law of the Constitution (10th ed.).
¹³ R (Quila) v Secretary of State for the Home Department [2011] UKSC 45.
¹⁴ Jonathan Haidt, The Righteous Mind (2012).
¹⁵ Lon L. Fuller, The Morality of Law (rev ed., 1969).
¹⁶ Forstater, paras 55–61.
¹⁷ Re Barrell Enterprises [1973] 1 WLR 19.
¹⁸ In re Spectrum Plus Ltd [2005] UKHL 41.
¹⁹ Porter v Magill [2002] 2 AC 357.
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