Double Aspect

Apologies for the very prolonged silence. I hope I can get back to a more normal posting rythm. I will start with comment on a recent decision of the the Administrative Court here in England, which may be of interest to Canadian readers too: R (Smith) v Chief Constable of Northumbria Police [2025] EWHC 1805 (Admin). This was a challenge to the participation of the Chief Constable and a number of uniformed officers of the Northumbria Police in the 2024 Pride events in Newcastle. This took the form, notably, of uniformed officers led by the Chief Constable herself parading in the Pride march, some “carrying flags with Pride colours alongside police insignia”, while other officers were staffing a both that “displayed the Progressive Pride Flag and the blue, pink and white colours of the transgender pride flag as part of a display which incorporated the Northumbria Police badge or insignia”. [46] The claimant, a “gender-critical” campaigner, argued that this participation, by endorsing a political agenda promoted by activists acting or purporting to act on behalf of trans people, was an unreasonable breach of the police’s duty of impartiality. Justice Linden agreed.

With apologies for the length of what follows, I would like to make four observations about the case and Justice Linden’s approach to it. Proceeding, more or less, from the most legally technical to most politically contentious they concern standing, the nature of reasonableness review and its interaction with legality, the limits of law and judicial review in dealing with societal controversy, and more specifically the conflict of culture war tactics with the law.

Standing

One noteworthy feature of this case, as of so many high-profile public law cases in the UK in recent years (none more so that the two Miller cases), is that it is brought by a person with no direct interest in the matter, in the sense of an interest different and greater than that of any number of other citizens. But the claimant was (presumably) granted public interest standing in the order giving her permission to bring this case. There are a couple of things to say about that.

One is that such decisions are typically, as in this case, invisible. The reasoning behind them is not made public. I am not suggesting anything mistaken, let alone sinister, whether in this case or in others. But I wonder whether this invisibility — lack of transparency, if you like, but that carries a negative connotation that I don’t intend — might help support an impression that public interest standing is just a nornal thing that requires no particular comment or explanation.

That, I would suggest, is not ideal. I have discussed the costs of an expansive approach to standing here, and tentatively suggested that “a narrower approach to standing, limiting it to those whose legal rights and obligations are directly affected by the administrative decision they seek to challenge” might be preferable because it “helps us distinguish those cases where the lawfulness of administrative action should be tested from those where doing so would be wasteful”. My views remain tentative, but perhaps having the merits of public interest standing in individual cases regularly hashed out in the open might prompt more enlightened thinking on this whole topic.

Be that as it may, Smith is as good an illustration as any of the benefits and the potential dangers of the permissive approach to standing. On the upside, the issue here — the police force’s compliance with a duty of impartiality — is surely important, yet because it is a duty owed to the public at large, there often will not be an individual or organization whose personal interests would be affected by a breach. So long as the duty is a legal one — I return to this point below —, it is valuable that compliance be able to be tested in the courts, which can, in the process, provide important guidance for other police forces as well. On the downside, though, Smith, like the Miller cases for example, arguably drags the courts into the realm of political disagreement. Again, more on this below, but it is not an unreasonable view that, while courts should not be deterred from protecting the rights and interests of individuals by the political implications of doing so, risking entanglement in political controversy on behalf of a nebulous “public interest” rather than individual rights is something they should avoid.

Unreasonablenss and Illegality

Before getting to the broader questions about law, politics, and culture wars, there is another doctrinal issue, or set of issues, to consider. These concern the nature of unreasonableness review in English administrative law and its relationship with illegality review. Justice Linden’s observations on this are interesting — perhaps especially for Canadian readers, who may find them surprisingly familiar.

Suprisingly, because in principle this is an area where English and Canadian law are quite different, not only so far as the relevant standards of review are concerned but, more broadly, in how they conceive of the whole approach to judicial review. In English law, “illegality” and “unreasonableness” are supposed to be two quite different grounds of review. In Lord Diplock’s canonical formulation in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (aka GCHQ) the former “mean[s] that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it”. The latter “applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”. Illegality review, as Lord Diplock makes clear, is not deferential; unreasonableness review very much is, though subsequent cases qualify the latter point where common law rights or constitutional principles are stake. Canadian law, by contrast, does not distinguish illegality and unreasonableness review: as Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653 explains, subject to a few exceptions, the same principles, and the same reasonableness standard, are supposed to apply to both the decision-maker’s understanding of the relevant legal rules and to other substantive aspects of its reasoning and decision.

I have long thought the English approach much preferable. Vavilov, though it improves Canadian law in comparison to the La-La-Land or “never-ending construction site” it was before, makes no theoretical sense, as I have always argued. And it’s no panacea in practice either, forcing judges into implausible contortionism and faux self-denial. As Lord Diplock says in GCHQ, whether or not a decision-maker has followed the law “is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable”. The US Supreme Court belatedly came to the same view in Loper Bright Enterprises v Raimondo, 603 US 369 (2024).

Smith suggests that there is, perhaps, a sort of middle ground between the Canadian approach and the traditional English one. The claimant framed her case as being concerned with the reasonableness of the Chief Constable’s decision to involve her force in the Pride events. But, Justice Linden observes,

The starting point of any rationality analysis is to consider the statutory context in which the impugned decision was taken. This context informs the decision maker and the court about the scope and/or limitations of the discretion and the considerations which are relevant to its exercise. [102]

Compare this to Vavilov‘s framing of reasonableness review as being concerned with “whether [the impugned decision] is justified in relation to the relevant … legal constraints that bear on” it. [99]

The reason for this framing in Smith is that what the argument is really about is not a discretionary or a policy decision of the sort that would normally be subject to unreasonableness review in English law. Rather, as already noted, it is the legal duty of impartiality to which police forces are subject pursuant to a range of statutory provisions and regulations that Justice Linden describes. And so Justice Linden observes that

It seemed to [him] that there would be a respectable vires argument in this case i.e. that, as a matter of construction, [the Chief Constable’s] general power would not include a power to instruct or authorise an officer to act in a manner which was in fact inconsistent with their duty of impartiality. [103]

But that argument had not, in fact, been made in this way. Yet by framing the scope of the duty of impartiality as the context within which the rationality of the Chief Constable’s decision must be assessed, Justice Linden can effectively proceed as if it had. To Canadian readers, this might be reminescent of the “preliminary analysis” of the applicable law for which the Supreme Court reproved Justice Stratas in Mason v Canada (Citizenship and Immigration), 2023 SCC 21, though there is nothing preliminary about what Justice Linden does. As I argued in my post on Mason, that reproof made no sense, because of course a reviewing court will form a view about the legal framework it is going to apply. I think that Justice Linden’s reasons in Smith suggest that the point needs to be put even more forcefully: it is both inevitable and right that, no matter how the case is framed, discrete interpretive issues must be addressed, without any pretense of deference, before any other issues are considered. As Lord Diplock said, that’s the courts’ and the judges’ job, and they need to do it.

Justice Linden then turns to unreasonableness analysis proper. But this is not the impressionistic “how angry does this make me?” suggested by Lord Diplock in GCHQ and, of course, by Lord Greene MR in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. Drawing on recent cases, Justice Linden looks for “process irrationality” and “outcome irrationality”. The former limb of the test subjects the Chief Constable’s reasoning to fairly close scrutiny, faulting her “overall approach”, which was “to emphasise the objectives of her decision but not to grapple with the requirements of the duty of impartiality”, as well as for “barely address[ing] the Claimant’s arguments”. [116] The latter, as its name suggests, is concerned with the decision itself, asking, in this case, whether “the effect of the activities challenged by the Claimant was sufficiently obvious for the Defendant’s decision to be outside the range of reasonable decisions open to her”. [136] Again, this seems like a fairly searching analysis — there is little deference in evidence.

This approach to reasonableness review seems much closer to Vavilov than to Wednesbury. The Supreme Court of Canada emphasizes not only the importance of the legal context of an administrative decision, as already mentioned, but the need for it to be internally coherent and responsive to the parties’ concerns. In many cases, judges paying explicit attention to such issues will be an improvement over the inarticulate irrationality assessment that would prevail on the orthodox English approach. On the ohter hand, there is a real risk that reviewing courts will be too intrusive, and will interfere with decisions that are not properly theirs to make. I will presently return to this in discussing the role and limitations of judicial review.

Before getting to that, however, it is worth mentioning that at no point does Justice Linden refer to “heightened scrutiny” or anything of the sort. This is the idea that orthodox Wednesbury unreasonableness review is too hands-off when individual rights or important constitutional values are at stake. This was arguably the case in Smith: one could easily see police neutrality as a matter of constitutional significance. It is no accident that the test for neutrality that Justice Linden draws from prior cases emphasizes not only the need for police forces to avoid taking side in political controversies, but also the importance of the public’s perception of whether they do so. This is pretty similar to the test applied to allegations of bias made against judges and administrative tribunals, and goes to the heart of all these officials’ function as representatives of the state and arms of the law. But, be that as it may, Justice Linden does not make this argument. Perhaps there is simply no need and indeed no room for heightened scrutiny on the new approach to reasonableness review that Justice Linden adopts — though it is worth pointing out that Vavilov opens the door to something of that nature with its insistence that “decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood” [133] require especially compelling justification.

The Limits of Judicial Review

Turning to the broader issues now, I want to raise the question to which I alluded above: should this have been a court case at all? In doing so, I should make my substantive views clear: I think the outcome of Smith is a good thing; the Chief Constable made some very unfortunate choices, and it is good that someone told her so and made her reconsider. I explain why I think that below. For now, the question is, should that someone have been a High Court judge? I do not ask this because I think there is anything wrong with Justice Linden’s judgment. The issue, rather, is whether the duty of impartiality should operate as a legal constraint. It is not Justice Linden who decided that it should, of course: as he shows, Parliament and successive governments did. Were they right?

There is an obvious argument for this. As I have already noted, the impartiality of police forces is arguably a constitutional value. It is tied to the need for all sections of society to have confidence in law enforcement, which is at risk if officers, let alone their leaders, take sides in political or social controversies or are reasonably seen to do so. It is bad enough when, say, universities are — often quite reasonably! — seen not to be neutral platforms for the advancement of learning but partisan actors or combatants in the culture war. It is worse when law enforcement puts itself in the same position. Hence, one may well think, there ought to be a law to bar it from doing so.

But, especially but not only in the United Kingdom, something being an important or even a constitutional value isn’t quite enough to carry the argument that it should also be a legal constraint. There are other questions to ask first, for example about the costs of enforcing this value through judicial review. Among these costs are the loss of democratic accountability that can occur when courts instead of elected officials effectively guide executive-branch decision-making and, relatedly, the danger that the courts themselves will, as a result, be perceived as political actors. Smith illustrates both. The Chief Constable is appointed by and accountable to an elected Police and Crime Commissioner. Shouldn’t that Commissioner’s view on how best to give effect to the requierements of impartiality matter more than the courts’? And aren’t the courts — whose own impartiality in matters relating to trans issues is already questioned, in some corners, in light of another recent judgment, For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 — in danger of appearing to take sides? Justice Linden’s caution that while he “tried to use neutral terminology … this may be impossible to achieve in the present context” [7] hints at the difficulties in this regard. In short, isn’t it better for democratically accountable actors to sort this out, under the voters’ ultimate supervision?

This blog’s readers will not be surprised to read that I am not all that fussed about this. In particular, I question whether the democratic credentials of a Commissioner, elected on a turnout of 33%, should matter much. But those more inclined towards political constitutionalism would surely say it does. And I will note at least a degree of similarity between the argument against a legal duty of impartiality and the concerns, to which I am much more sympathetic, about the excessive number of legal rules to which, for example, not only anyone who wants to build anything — in the United Kingdom and in other English-speaking countries — but also any public authority that would like to authorize the building of anything is subject. Fewer rules, and letting people get on with things, are often better, on balance, than trying to provide constraints — and, accordingly, opportunities for litigation — against each and every bad decision or even act of maladministration. Surely, police forces are different from planning authorities. They have guns and all that. But it is worth thinking about whether that difference, important as it often is, matters in any given case.

The Limits of Culture War Tactics

That said, perhaps the reason why the legal character of the police impartiality duty, and the possibility of judicial intervention to enforce it, are a good thing after all has to do with the nature of arguments and reasoning that the legal process requires and the difference between these and what passes for argument and reasoning in the context of politics and culture war. David French has frequently made this point on Advisory Opinions, notably (but not only) in relation to the repeated failures of Donald Trump and his acolytes in challenging the 2020 election. The bluster and lies that work to convince large numbers of citizens, and sow doubt in the minds of many others, fall apart when subjected to adversarial questioning and impartial scrutiny.

Bluster and lies aren’t the only rhetorical devices the courtroom exposes and makes crumble into dust. So is the motte-and-bailey: a term popularized by Scott Alexander to describe the culture warriors’ tendency to switch between expansive-but-scary and banal-but-unobjectionable versions of their claims as suits the circumstances. It is, as I have observed here, a favourite tactic of common good constitutionalists, but of course they have no exclusive claim to it. The “woke”, for lack of a better term, are just as proficient at deploying it. And Smith shows that, while it is frightfully effective in the political and cultural world, the law can resist its appeal.

The motte — the unobjectionable position that does not prove much but is used to suggest the resistance to an activist group’s position is both unreasonable and vile — is illustrated by the Chief Constable’s explanations for taking part in the Pride activities. In particular, as summarized by Justice Linden, she referred to the vulnerability of “the LGBT+ community in general and the trans community in particular” (that wording is the Chief Constable’s) to crime and discrimination, and the need “for the police to demonstrate to potential recruits and serving officers that it will be an inclusive environment in which to serve”. [36] The Pride events are a way to acknowledge and combat this vulnerability and carry out this demonstration; their “central purpose … is not socially or politically controversial”. [54] Hence it is quite appropriate — even necessary, the Chief Constable argued — for the police to take part.

The bailey — the set of reach goals that would be difficult to argue for directly, but which the activists hope to achieve under the cover of the motte position — comes in two flavours. First, there is the ideological posture of the Pride events’ organizers, which includes “increased access to medical intervention for transgender people, including for children and adolescents”, as well as

access by right, for natal males who identify as female, to nominally woman-only spaces such as changing rooms, dormitories, hostels, refuges, prisons, bathrooms, and sports teams and competitions; and the equivalent rights for natal females who identify as male. [11]

Second, there are the slogans shouted or displayed at the event itself — the now usual litany of winks and nods at genocide (“from the river to the sea”), blood libel, and demands for “socialism”. [43] (People might want to find out what Hamas do, or for that matter Soviet and other socialists did, to members of “the LGBT+ community in general”. But that’s perhaps too much hope for.) Relatively few people actually support such demands if they are made transparently and directly. But when they are presented as just aspects of respect for a long-marginalized minority, some at least are likely to be accepted without much debate.

Now, I am not saying that the Chief Constable herself believes all of this stuff. She may believe some of it, of course, or none at all. Nor am I saying that she is actively, knowingly a party to the activists’ motte-and-bailey trickery. What strikes me as far more likely is that she, like so many others in authority over the last five and even 10 years, fell for the tricks, or indeed chose to act as if she had in order to avoid accusations of assorted -isms and -phobias. But, however that may be, she made herself complicit in the motte-and-bailey — and instructed her lawyers to defend it in court.

That did not fly. As Justice Linden points out

A key reason for taking part in the [Pride] March was publicly to support the beliefs and aims which the March represented and sought to promote, and this was as true of the police officers who did so as it was of any other marchers. Moreover, the fact that they wore their uniforms, marched as a contingent, and carried the Police Pride and other flags demonstrated their support for the cause as police officers. [131]

These beliefs and aims were not an ecumenical message of respect and willingness to work with and for all, regradless of background and identity. They are a set of political demands, with which is possible to disagree, and which it was there inappropriate for the Chief Constable and her force to endorse and promote. All this is entirely correct, and, as I have already said, a timely illustration of the difference in which legal scrutiny exposes the flaws in the rhetoric of politicians and culture warriors.

I have argued that it would be quite reasonable to question whether cases such as Smith should be able to come to court, because are brought by people whose own rights and obligations are not directly affected. It is, indeed, reasonable to question whether a police duty of impartiality, valuable though it is as a rule of public morality, should be given the status of a legal rule enforceable by the courts. But Smith shows just how valuable the judicial enforcement of such a rule, no matter at whose behest, can be. The motte-and-bailey rhetoric that can easily sway the perception of bureaucrats and politicians loses its power in open court, especially when subjected to a searching form of review such as that which Justice Linden applied here. That does not prove concerns about the expansion of judicial review, which Smith also illustrates, are unwarranted: the end does not justify the means. But, if there is any excuse for my having spent so long on a single case, and a first-instance one too, it is precisely that illuminates the complexity of these issues from such different angles.