Current Legal Fictions in Public Law

Introduction

Legal fiction is a grand topic, which has attracted the attention of many a great thinker and scholar from different jurisdictions and disciplines.^[1] It has also received impressive treatment in various recent studies.^[2] This is an article on the use and the fortunes of legal fictions in public law. It provides two case studies on what has been done, or what has happened, to deal with or to cope with them, in orthodox constitutional legal doctrine and administrative law liability. Of an article on a topic that has attracted such attention, one might reasonably ask, why risk researching and writing on it, and why in public law? The second question is easier than the first and can be answered briefly. My personal familiarity with private law is only with the ancient Roman variety. The term ‘public law’ in the British context also conveniently covers both the constitutional doctrines central to this article—parliamentary sovereignty and the rule of law—as well as administrative law liability. No hard public/private divide is intended because of the private law dimension of that liability’s development. In answer to the first question—why research and write on such a topic—further explanation is required.

A first reason for focussing on legal fiction is that they seem rather difficult to avoid, as are the questions of the degree to which they are problematic and are therefore to be avoided, changed, or dealt with in some other way. The frequency with which legal fictions are still being used, and the questions accompanying them, seem, if anything, to be on the increase. There has been a recent reference to their ubiquity.^[3] The use of legal fiction does not seem to have been on much of a decline as the rule from the graves of the forms of action,^[4] which many a grand old fiction once helped serve, has become considerably lighter, or less hegemonic. If not quite ubiquitous, legal fictions have certainly remained current in present relevance. Apart from the fiction in the Safety of Rwanda (Asylum and Immigration) Act 2024,^[5] which this article is not about, numerous other public law examples come to mind, varying greatly in kind, purpose, and gravity. There has been, on the one hand, much to remind us (including emphatic assertion on television that dogs are not cats) of the old joke about deeming them to be cats for the purpose of being kept as pets in college rooms (or allowed elsewhere), and then of the accompanying problem of what’s to be done about Lord Byron’s pet bear. Much more seriously, on the other hand, legal fiction was put to prominent use in the coronavirus disease 2019 (COVID-19) pandemic, at least at my university. The new 24-h window examinations for taking online under lockdown (which students were able both to start and to end at any time in the 24 h) were to be treated as if they were the traditional 3-h in-person invigilated exams, an example to which this article will return. In the examination context, fiction was also recently used to deal with the effect of industrial action by the University and College Union. If teaching that normally took place in our Law Faculty took place elsewhere (for example in a college), it was to be regarded as not having been delivered for the purpose of our industrial action policy 2022–3 and for the adoption and implementation, in particular, of examination mitigation measures.

Apart from the patent use of fiction in crisis management, legal fiction seems often to be quietly at work in mundane administrative practices. One example is the usual counting of attendees at a meeting’s start to comply with its quorum requirement and the possibly less usual practice of not recording or not noticing later departures, by implication, deeming an initially quorate meeting to have remained quorate throughout. My inclination, or rather one-time condition, of seeing fictions everywhere on returning to this research in Autumn 2023, worsened when the clocks went back. In the Summer Time Act 1972, the statutory enactment for the clocks to go forward is generalized by providing that ‘whenever any reference to a point of time occurs’, such as in any enactment, rule, or order, ‘the time referred to shall, during the period of summer time, be taken to be the time as fixed for general purposes by this Act’^[6]—a comprehensive resetting of time itself—in its legal form though not strictly by legal fiction, depending on one’s definition. It is a comprehensive resetting of time at the varying expense of particular statutory and other intentions in setting a time, unrelated to daylight saving, for example, so as to correlate GMT (Greenwich Mean Time) with the time in other time zones.

A second reason for focussing on legal fictions is the huge variation in the responses they have elicited, itself a source of unease, making their reception difficult to predict. Between the severity of Jeremy Bentham’s criticism of the common law’s multitude of fictions and William Blackstone’s approval of their beneficial and judicious use^[7] are many responses varying in degrees of annoyance, approval, amusement, or bemusement.

A third reason is that legal fictions are typically said to vary greatly in kind, purpose, and utility,^[8] and therefore they also vary in potential detriment, when first used or when used in changed circumstances. Consider again the example in the pandemic of the new 24-h window online lockdown examinations to be approached as if they were the 3-h in-person and invigilated examinations that preceded them. They were certainly useful. Students under lockdown at home but abroad in greatly varying time zones could take the same 3-h examination at a time suiting their own time zone. Further, students with conditions entitling them to extra time could simply take the extra time. The official fiction of treating the 24-h window online examination as the old 3-h examination was at face value clear and simple, arguably a rare source of apparent continuity, and a degree of reassurance, amidst the waves and turmoil of the pandemic. The source of detriment, however, was uncertainty about adherence to the fiction, about its scope of application, and whether it would be maintained. If legal fiction involves some sort of knowingly false statement, how far to take the known pretence, or when to dispense with it, would seem a common problem. In the case of a 3-h examination in a 24-h window, how were one’s own students to be advised: repeat and adhere to the official fiction—‘only write for three hours (or thereabouts)’ when, in a comparative and competitive marking environment, many would not; or say nothing more, suspecting that students would anyway decide for themselves and do different things, including take varying advantage of extra hours, occasionally at serious risk to their own well-being? Though useful, legal fictions would also seem deeply problematic.

A fourth and final reason for my returning to legal fictions is a shift in the focus of my research. It is a shift away both from earlier work on systemic interconnections between an autonomous English public law and the features of its legal and political context^[9] and from later work on the normativity of historical constitutional legal understanding.^[10] It is now to try to understand the constitution’s darker side, its less overtly systemic, or normative legal dimensions, more or less extraordinary, perhaps rather pathological but nonetheless commonly taken for granted—its constitutional legal culture for want of a better word.

In focussing on the constitution’s darker, less clear, side, statements by Albert Venn Dicey and Lon Fuller, two leading figures of long-standing importance to my research, are central to this article. Dicey, on his first visit to the USA, well before he took up his Oxford Chair, contrasted the English ‘general system of letting everything be something while it calls itself something else’ with America where ‘on the whole, things are what they seem’.^[11] This article will return to Dicey’s view of the forms and fictions of English law. Then Lon Fuller, in his famous book on legal fictions, expressed interest in fiction as ‘represen[ting] the pathology of law’: ‘When all goes well and established legal rules encompass neatly the social life they are intended to regulate, there is little occasion for fictions…Only when legal reasoning falters and reaches out clumsily for help do we realize what a complex undertaking the law is.’^[12] Taken together, these statements raise the overarching research concerns to which this article is directed. One is about the extent to which extraordinary forms and fictions in British or English public law have been pervasive and whether they have perhaps been made more ordinary and acceptable. A second concern is whether they have been ordinary features of legal thought, analysis, or reasoning, or special in their relation, degree, and manner of dependence on British or English constitutional legal culture in particular.

An expected response is that, in the quoted passage, Lon Fuller was not referring to legal fiction in the strict sense of the word, and that various examples mentioned above are also not really legal fictions. So, the first part of this article addresses the problem of defining legal fiction and adopts a working definition. The second part, because of Dicey’s foundational doctrinal exposition and profound influence, particularly on orthodox thinking about the constitution, considers his own attitude to the constitution’s forms and fictions. In the third and fourth parts, to serve as case studies, two basic examples are considered in terms of legal fiction. The one is in English constitutional law, the other in administrative law; the one is central to legality, the other to liability. The third part deals with Parliament’s absolute legislative sovereignty, and the fourth part, with changes of language in determining the liability of public authorities for omissions (as traditionally understood). The fifth part suggests, in conclusion, what might mainly be learnt from these two case studies.

What is mainly to be learnt from the two case studies, this article will argue, is that propensity for fiction, accompanying unease, and therefor domestication, have been evident in the British or English constitutional and administrative legal context. It is that the fortunes of legal fiction in this context have not simply been of all-or-nothing rejection^[13] or retention but of domestication, by which the extraordinary legal forms have been made more ordinary or at least so to appear, leaving fiction less visible but still intertwined in orthodox constitutional legal doctrine and administrative law liability.

Defining Legal Fiction

In his famous work, Fuller attempted ‘a definition of the fiction that will at least approximate current usage’: ‘A fiction is either (1) a statement propounded with a complete or partial consciousness of its falsity, or (2) a false statement recognized as having utility’.^[14] Amidst multiple other definitions and criticism of Fuller’s, this article adopts his definition as widely known because, inter alia, it attempted to approximate common usage. That is usage dating back to 1930 when the first of the three articles which became the first chapter of his book was published in the Illinois Law Review,^[15] disseminated further by the book’s publication in 1967 and through its considerable influence for decades thereafter. Fuller’s definition is used according to the understanding and appeal of three of its features.

First, Fuller’s definition is not intended to be analytically precise and is questionably criticized for analytical imprecision.^[16] It was put forward so that when we talk about legal fiction we have something roughly similar in mind. Although his (1) and (2) formulations above are introduced as alternatives with ‘either’ and ‘or’, they are not analytically mutually exclusive. They are alternative formulations of one definition. For Fuller, ‘This definition seems on the face of things to embrace two entirely discordant elements’ as a matter of ‘linguistic development’.^[17] He then shows their working in tandem: ‘A fiction taken seriously, i.e., “believed,” becomes dangerous and loses its utility. It ceases to be a fiction under either alternative of the definition given above.’^[18] By this article’s reading of Fuller, ‘legal fiction’ in common discussion can be used to refer either to consciousness of a statement’s falsity or to the utility of the false statement, if not quite as two sides of the same coin, but as two elements, dimensions, or aspects of one definition.

Secondly, Fuller’s definition is not one that is limited to false statements of fact.^[19] Not limiting it to fact avoids having to draw the variable, versatile, and context-specific distinctions between fact and law.^[20] Its versatility is illustrated in how a US 7th Circuit Court judge, helping out with student moots at the University of Chicago Law School, once used the distinction by the way to explain how he made use of his law clerks: ‘The facts are for me; the law is for the law clerk – that’s as it should be, the clerk has just learnt all about the law at law school!’.^[21] Not limiting legal fiction to factual false statements also avoids any superficial treatment of fact. For Fuller, there was ‘no such thing as a plain, brute “fact”…All of our facts, at least all communicable facts…are conceptual facts’^[22] and in the legal context, usually legal conceptual facts.

Thirdly, Fuller’s definition makes purpose, in the form of recognition of utility, central to his definition—one of two elements or aspects. It is also central to his elaboration on the motives behind legal fictions.^[23] Fuller was preoccupied with the purposive nature of legal forms and with the interaction of ends and means, opposing their being treated as severable and suggesting instead their movement in ‘circles of interaction’.^[24] For Fuller, described by his academic biographer as ‘one of the greatest “means-end” theorists in the history of legal theory’,^[25] fiction was defined in terms of purpose, and the definition itself would be purposeful.

Different purposes are conducive to different definitions of legal fiction. For example, if one’s purpose is to evaluate legal fiction as a device in itself, excluding utility from the definition might help guard against the temptation of judging the fiction simply by the usefulness of its outcome.^[26] Or, if one’s purpose, in the words of Sir John Baker, is to illustrate ‘the problem which faces the legal historian by reason of the coexistence of two bodies of law, one formal and the other informal’, the law in its sources and the law in operation, legal fiction is sensibly defined narrowly to exclude legal rules in the form of fictions (Fuller’s ‘abbreviatory fictions’), which are then, on the one hand, in the formal sources of law.^[27] ‘[T]he classic factual fiction’, on the other hand, ‘works off the record’ and ‘does not necessarily leave visible traces at all’.^[28] In contrast, Fuller’s broad common-usage definition of legal fiction, not confined to factual false statements or preclusive of legal rules expressed as fictions, suits this article’s purpose of trying to understand and explain within public law the use and the fortunes of legal fictions as the constitution’s more or less extraordinary legal dimensions, perhaps pathological but still taken for granted. Evidence from what we take for granted is elusive. The question is what can nonetheless be found by considering in terms of fiction the constitution’s basic legal doctrines, at least according to Dicey and the orthodoxy^[29] with which he has long been identified.

Dicey on the Forms and Fictions of the Constitution

Dicey was preoccupied with false forms and fictions in constitutional law and beyond it. At the start of Lectures Introductory to the Study of the Law of the Constitution, Dicey outlined the subject itself, ‘The true nature of constitutional law’, by distinguishing the lawyer’s view of the constitution from the historian’s view and the view of political theorists.^[30] He accused that lawyer’s view of ‘unreality’ for which he blamed ‘Blackstone’s habit—common to all the lawyers of his time—of applying old and inapplicable terms to new institutions, and especially of ascribing in words to a modern and constitutional King, the whole and perhaps more than the whole of the powers actually possessed and exercised by William the Conqueror’.^[31]

In Law and Public Opinion in England, Dicey was highly critical of the historical, mainly procedural, legal fictions surviving into the early-nineteenth century in the period preceding that of the early Benthamite reforms. To him, they were absurd and labyrinthine: ‘Every branch of the law teemed with fictions and survivals; they constituted the oddities of our legal system, and, whether simply useless or actually noxious, were specially typical of an age which acquiesced in things as they were’.^[32]

To Dicey, however, forms and fictions were not merely unwanted or unnecessary survivals from the past but they were intrinsic to the constitution’s character and to its continuity. In his comparative constitutional lectures, he contrasted the different spirits of different constitutions (such as the civil administrative spirit of the French and the military spirit of the Prussian at the time), and he spoke of the English constitution’s legal ‘spirit’—a love for legal forms and ‘acquiescence in fictions’.^[33] His prime example was the seventeenth-century fiction that King Charles II immediately succeeded King Charles I, by which the interregnum from 1649 to 1660 was ‘blotted out from popular tradition’ and the ‘unbroken continuity’ of the English historical constitution maintained in form.^[34] For Dicey, the English constitution was viewed from the perspective of a people with ‘a legal turn of mind and a love for forms and precedents’, who ‘imbued with legalism…import into their political arrangements that love of precedent and acquiescence in fictions which is proper to the law courts’.^[35]

Dicey’s clear sense of the importance of forms and fictions to the constitution’s character was matched by his distrust of their unreality. That distrust, inter alia, made the referendum attractive to Dicey, seemingly ‘its first English advocate’.^[36] That it did so is clearly evident in the political advocacy of his early writings on democracy and on the referendum, recently compiled and edited by Gregory Conti.^[37] Whether in addressing objections to the referendum, such as that of those who saw it as a threat to parliamentary sovereignty, or directly espousing its virtues, Dicey repeatedly presented the referendum as a furthering of reality and as correcting false forms, appearances, or fictions. For Dicey in ‘Democracy in Switzerland’, Parliament itself might be fooled by form, in his words, ‘easily mistake the vociferation of a faction for the voice of the country’: ‘An appeal to the people may, in short, be the death blow to factitious agitation carried on in the name, but without the sanction, of the democracy’.^[38] Or elsewhere, in ‘The Defence of the Union’, to the argument that ‘we must assume the majority of the House of Commons to represent the people’, Dicey was dismissive and blunt: ‘You cannot meet facts by reliance on constitutional fictions’.^[39]

Such is the frequency of Dicey’s critical references to the unreality of the constitution’s forms and fictions and of their working in political practice that it would seem to make Dicey a candidate not only as Austinian positivist^[40] and normative interpretivist^[41] but also as some sort of common-sense realist. We are, however, perhaps spared the perplexity of that retrospective scholarly conclusion on the complexity of Dicey’s split persona by a degree of pragmatic ambivalence in Dicey’s attitude to fictions of the constitution as productive of unreality but also as ‘often harmless’, ‘sometimes useful’,^[42] and, on one occasion, that is Lord Chief Justice Coke’s wholly ‘artificial’ and ‘unhistorical’ reasoning in Prohibitions del Roy, ‘essential to the very existence of the constitution’.^[43] Further, Dicey’s doctrine of the sovereignty of Parliament, the first of his two main constitutional principles,^[44] is itself here in issue as a source of fiction and further relief—escape from the scholarly spectre of an Austinian positivist, normative interpretivist, and realist Dicey.

Parliament’s Sovereignty: Limitless in Law and Limited in Actuality

Lord Steyn in the Jackson case referred specifically to Dicey’s doctrine of parliamentary sovereignty: ‘The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution.’^[45] Dicey’s doctrine, however, was not really all that pure and simply absolute to start with. One source of complexity was Dicey’s argument that parliamentary sovereignty and the rule of law were mutually supportive, in his concluding words to his exposition of the rule of law, ‘that Parliamentary sovereignty has favoured the rule of law, and that the supremacy of the law of the land both calls forth the exertion of Parliamentary sovereignty, and leads to its being exercised in a spirit of legality’.^[46] The other source of complexity was his use of two overlapping distinctions to address two ‘speculative’ or observational, ‘real and reasonable’, difficulties^[47] in accepting the doctrine of Parliament’s absolute sovereignty. The first difficulty was that Parliament was said to be sovereign, but sovereignty was at least shared with the electorate through Parliament’s representative character. The second observational difficulty was that ‘[e]veryone…knows as a matter of common sense that whatever lawyers may say the sovereign power of Parliament [to make or unmake any law whatever] is not unlimited’ and that ‘[t]here are many enactments…which Parliament never would and…never could pass’.^[48] Emphasizing observational difficulty in accepting the contradiction of common-sense knowledge that Parliament obviously could not make any law, Dicey questioned whether the doctrine of parliamentary sovereignty is a ‘dogma…no better than a legal fiction’.^[49]

Dicey addressed the first difficulty by resorting to analytical distinctions.^[50] He distinguished between the legal sense of Parliament’s sovereignty—the lack of any legal limit to law-making—and the political sense in which the electorate (through the House of Commons), the House of Lords, and the King were sovereign. Dicey added to this distinction a second, overlapping, analytical distinction. Parliament’s sovereignty in its legal sense was limitless—‘unrestricted by any legal limit’—whereas its sovereignty in its political sense was obviously limited in actuality.^[51] The second distinction, however, did not remove the fiction but restated it, cast it as an analytical distinction, setting a basic rule for the courts to treat Parliament’s sovereignty, though limited in actuality (on one side of the distinction), as limitless in law (the other side of the distinction), thus requiring courts to apply any parliamentary enactment whatever its content. In terms of Fuller’s definition of legal fiction, the courts were to abide by a proposition in a sense false or not strictly true, that Parliament’s sovereignty was limitless in law, and the distinction itself was an expression of consciousness that it was not in actuality. Dicey did not here^[52] specifically call the proposition a legal fiction or use the typical language of legal fiction (such as Parliament’s sovereignty was to be treated by the courts as if limitless), which in view of his at-best ambivalent attitude to legal fiction is unsurprising. He cast the fiction in analytical distinctions and, having himself raised the question whether it was a ‘dogma…no better than a legal fiction’, he did not conclude that there was no fiction, or suggest the absence of fiction, only that much more was involved than fiction. For Dicey, much more was involved, in form, because of the casting of analytical distinctions between legal and political senses of sovereignty and, in substance, because those senses, though different, were ‘intimately connected together’ and so connected in a representative system of government.^[53]

Where Dicey did specifically address the second observational difficulty in respect of which he had raised the issue of the legal fiction of obvious actual limitations to limitless sovereignty, again he made no mention of it, and his marginal heading simply reasserts, the ‘Existence of actual limitations to power [is] not inconsistent with sovereignty’.^[54] In the corresponding and subsequent paragraphs in the text, Dicey did not further explain the lack of inconsistency but clarified and emphasized the external and internal limits to the ‘theoretically boundless sovereignty of Parliament’ and showed how representative government produces coincidence between each kind of limit.^[55] For Dicey, in the context of representative government, the doctrine of parliamentary sovereignty was certainly not ‘no better than a legal fiction’: much more was obviously at stake and critically important than the legal fiction in use by way of analytical distinctions.

Utility

The fiction’s great utility was one of high principle and also of simple and accessible explanation. For the courts to treat Parliament’s absolute sovereignty as limitless in law was to ensure judicial adherence to the statutorily enacted will of a representative parliament and thus fidelity to a fundamental principle of representative democracy. But also in Dicey’s Introduction to The Law of the Constitution’s eighth edition, Dicey both recognized expressly, though belatedly and in some or other degree, Parliament’s ‘more or less fictitious omnipotence’ and the fiction’s explanatory value.^[56] For Dicey, it was essential so as to understand both the occasional actual exercise of the Imperial Parliament’s legislative power in the British Empire ‘outside the limits of the United Kingdom’ as well as ‘the limits which…are in fact, as regards at any rate the Dominions, imposed upon the actual exercise of the theoretically limitless authority of Parliament’ in giving effect to an ‘asserted and more or less fictitious omnipotence’.^[57] In other words, the fiction was so as to understand the occasional exercise of absolute sovereignty beyond the UK and actual limitations on the practicability of doing so.

Apart from helping to understand the former relation of the UK Imperial Parliament’s sovereignty to its former Dominions, the fiction can also be of use in explaining the much more recent former relation between UK and EU law as understood by the majority of the Supreme Court in Miller 1.^[58] Although the European Communities Act 1972 was understood to have an ‘unprecedented’ effect on the sources of UK law, ‘not fully appreciated by many lawyers until the Factortame litigation in the 1990s’, it had not altered ‘the so-called fundamental rule of recognition’ because it could ‘be repealed like any other statute’.^[59] Or rather, the 1972 Act could be expressly repealed by Parliament, but not by implication because the EU law thereby taking precedence over domestic law ‘unlike other rules of domestic law’ could not ‘be implicitly displaced by the mere enactment of legislation which is inconsistent with it’.^[60] The 1972 Act accordingly had ‘a constitutional character’.^[61] The Supreme Court did not explain or clarify why rendering the 1972 Act immune from implied repeal did not alter the so-called fundamental rule of recognition despite its disregarding the established doctrine of implied repeal^[62] and, in the meantime, placing huge swathes of the UK’s EU law beyond the effective reach of Parliament. The fiction of Parliament’s sovereignty as limitless in law and limited in actuality was available as an explanation. Parliament’s legal sovereignty remained limitless in law through the availability of express repeal. The 1972 Act’s immunity from implied repeal only increased…greatly…the political limitations on political sovereignty in its actuality. The ‘constraints on what Parliament’ could do, that is, to enact express repeal, were only, to quote the words of then Baroness Hale from her speech in the Jackson case, ‘political and diplomatic rather than constitutional’.^[63]

Detriment

Although appreciating the fiction’s great utility, Dicey was also seemingly concerned by the potential detriment accompanying full and open recognition of fiction. His concern was evident in his questioning whether Parliament’s absolute sovereignty was a ‘dogma…no better than a legal fiction’, in his need to cast it in analytical distinctions, and in his later recognition, express but only in some or other degree, of Parliament’s ‘more or less fictitious omnipotence’.^[64] Dicey had good reason to be concerned.

The first of two accompanying sources of potential detriment is that limitless legal sovereignty and limited actual sovereignty might well be blurred and not actually distinguished. In his comparative constitutional lectures, Dicey depicted the legal ‘spirit’ of the English constitution, viewed from the perspective of a people ‘imbued with legalism and who import into their political arrangements that love of precedent and acquiescence in fictions which is proper to the law courts’.^[65] Imported into political arrangements, Parliament’s absolute limitless legal sovereignty, proper to courts of law, would be subject to constraints on actual political sovereignty in the political arena. Dicey would not have been surprised that far-reaching constraints on Parliament’s limited actual political sovereignty (as in the process of decolonization or the much later asymmetric devolution of governing powers) in the implementation of the European Communities Act 1972 would, however, mistakenly, readily be viewed, depicted, and politically manipulated as unacceptable, intolerable, or deplorable constraints on a supposedly absolute and limitless political sovereignty. And Dicey would not have been surprised that such constraints would even be defended as realistic, pragmatic, or expedient, as if the politically imported limitless legal sovereignty, not the limited actual political sovereignty, were in issue.^[66]

The second source of potential detriment is the fiction’s apparent vulnerability—the partial or full consciousness of falsity and its obvious artificiality and hence intrinsic questionability in some degree as an artificial construct, therefore at the discretion at least of its author to the extent of that questionability. In the case of Parliament’s legal sovereignty, in the absence of a statutory author or basis for the fiction, it is readily and plausibly identified or understood as a creation of the common law, as stated by Lord Steyn in the Jackson case:

It [the supremacy of Parliament] is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts,…a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.^[67]

The result of its being readily and plausibly understood as a creation or construct of the common law is the detriment accompanying critical legal uncertainty. That uncertainty is about whether the fiction will change or be changed in a judicial shift of constitutional foundations. It is also about the exceptional circumstances in which it might do so, such as a purported statutory attempt to oust judicial review, wholly or in part. The basic and continuing uncertainty is reflected in the various dicta^[68] on the second issue^[69] in Privacy International, which did not need to be decided but may well need to be, at some point sooner or later.

Looking behind or beyond Parliament’s ‘more or less fictitious omnipotence’ of its absolute sovereignty,^[70] even Dicey had his own doubts and he expressed them. For Dicey, in his lecture ‘Representative Government’, although Parliament ‘have in theory been invested with complete sovereignty, this absolute transference of the authority of the nation to its delegates has never really been completely acquiesced in by the electors…[T]he authority vested in Parliament is rather indefinite than absolute’.^[71] Dicey reached this conclusion by way of an analogy between representation in Parliament and agency in private law, and, on the premise that there can be no universal agent in private law, Parliament is subject to a limit inherent in its popular representative character.^[72]

Important to the retention or longevity of fiction are not simply utility and potential detriment in themselves or in the abstract but appreciation of utility and sense of detriment. These are context-dependent. One aspect of constitutional legal cultural context is receptivity to the very use of fiction and to the form it takes or in which it is cast. Here, in issue is continued receptivity to Dicey’s analytical or professorial distinctions between the legal and political senses of Parliament’s sovereignty, the one limitless in law, the other limited in actuality. Dicey sought to avoid the reaction—it is a ‘dogma…no better than a legal fiction’—to his doctrine of parliamentary sovereignty by casting the fiction in the analytical distinctions of ordinary analysis, thus domesticating it, making it appear more ordinary or less extraordinary, enhancing receptivity in the context of expounding and learning about, or being educated in, the law of the constitution.^[73]

The other aspect of context is commitment to the foundational principle of representative democracy—judicial adherence to the enacted will of a representative parliament—which is being secured by the fiction or the ‘hypothesis of constitutionalism’^[74] that is being tested. It is commitment to that foundational principle in relation to the fundamental or foundational importance attributed to other democratic principles, such as the rule of law and civil and political rights, in the working of a democratic representative government. In short, at stake is receptivity to that foundational constitutional principle secured by fiction, made more ordinary cast in the legal form of analytical distinctions.

Public Authority Liability under Equality Before the Law: From Dicey’s Every Official as ‘Every Man’ to the Crown as ‘if it were’, and a Local Authority ‘like’, a Private Person

Apart from Dicey’s doctrine of parliamentary sovereignty, the first of his two main constitutional principles, for examination in terms of legal fiction, is also his second such principle—the rule of law and equality before the law under it. It is, however, an examination in a very different context, not that of legality in the relation of central courts to the enactments of the Westminster Parliament. It is in the context of the relation of central courts to the police and local authorities in respect of their liability. It thus involves, inter alia, scarce public resources, legal conceptions of local authority, and judicial decision-making with potentially serious implications for police and local authority prioritization in the allocation of such resources.

Liability of ‘Every Official’ as ‘Every Man’ or ‘Any Other Citizen’ under Dicey’s Rule of Law

Under the second meaning Dicey attributed to the rule of law, ‘every official’ as ‘every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals’, thus ‘responsible for every act done without legal justification as any other citizen’, and officials are thus made ‘liable…to the payment of damages for acts done in their official character but in excess of their lawful authority.’^[75] Dicey made no reference to public authority or the ‘state’ (except in describing French officials as ‘all persons employed in the service of the state’)^[76] and negated its distinctness also in the other two meanings he attributed to the rule of law. Depicting ‘the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint’ as contrary to the rule of law in its first meaning, he precluded discretion as a distinguishing feature of governing authority.^[77] In the rule of law’s third meaning, public or state authority is absent from his assertion that ‘the general principles of the constitution…are with us the result of judicial decisions determining the rights of private persons’.^[78]

Dicey did not suggest that the rule of law in its second meaning required analogous judicial treatment of officials—like that of private persons—because his preoccupation was with jurisdictional equality: equal subjection to one jurisdiction in contrast to the dual French jurisdiction.^[79] Whether that treatment would necessarily involve a degree of fiction—treatment of officials as if they were the same as or no different from private persons—is questionable. It is not stated as fiction, and whether it would involve fiction would seem to be a matter of perspective. For those appreciative of the relevance of common-sense differences between officials and private persons—differences of legal authority, duty, power, and resource—fictitious or artificial treatment would seem to be unavoidable in negating or neglecting those differences. For them, wilful blindness to those differences would approximate ‘partial consciousness’ of falsity^[80] in nonetheless treating them as if they were the same. But Dicey, negating the distinctness of public or state authority in each of his three meanings, might actually have barely perceived the relevance of those differences—seeing just varying kinds of individual person—thus precluding use or consciousness of a false proposition that officials were not the same as private persons for legal purposes in determining liability. To the extent, this was Dicey’s perspective, and it was or became, and perhaps still is, widely shared, that it was, became so, or still is, would suggest that the very existence or recognition of legal fiction is itself affected by constitutional legal culture.

The Crown and Other Public Authorities

Strikingly absent from Dicey’s exposition above was the Crown, but Dicey did add Note XII, ‘Proceedings against the Crown’, to the 7th edition of The Law of the Constitution (published in 1908).^[81] There, he recognized that ‘[t]echnically’ it was ‘impossible…to bring an action against the Crown’, and that ‘this impossibility’ was ‘often said to be based on the principle that the Crown can do no wrong’.^[82] For Dicey, however, there was not much of a problem. The person a Crown servant had injured in the course of his service could bring action against the Crown servant, and the Government would usually pay the damages awarded for the torts of Crown servants: ‘the technical immunity of the Crown in respect of such torts is not a subject of public complaint, and in practice works little, if any, injustice’.^[83]

Amidst varying views on the Crown’s immunity, Dicey’s was influential,^[84] but an expectation that the Crown should compensate where Crown servants wrongfully caused injury in the course of their official service was also evident in the highly personalized administrative practice to which Dicey referred. That practice was of the Crown’s defending the action against the Crown servant and making payment ex gratia from public funds according to the court’s ruling. In a situation where the injured had no actual legal right to compensation and faced practical difficulties,^[85] for example in obtaining information held by the Crown but not necessarily by the Crown servant, reform initiatives began in the early 1920s. A Crown Proceedings Committee chaired by Lord Hewart was appointed, and a draft Bill was circulated in 1927. Powerful departments, such as the War Office and Admiralty offered resistance and remained understandably reluctant. The draft Bill circulated by the Committee did not allay unease with its terms, and it was not taken further for decades.^[86]

That highly personalized administrative practice to which Dicey referred was to become and be perceived as considerably more problematic—artificial or fictitious—than Dicey had suggested. Apart from the practical evidential difficulties, a common problem was determining which particular Crown servant should be the defendant. Crown practice was for a ‘nominal’ or ‘nominated’ defendant to be selected by the Crown, presumably on occasion requiring a Crown servant to take one for the team by serving as such a defendant. The eventual successful passing of the Crown Proceedings Act 1947 was, in timing, prompted by the House of Lords decision in Adams v Naylor.^[87] In that case, the House of Lords refused to give any recognition to the Crown’s own role as such by disapproving the Crown’s practice of selecting who may be personally liable and by requiring proof that the defendant himself owed a duty of care and failed to discharge that duty.^[88] Legislation was said to be ‘long overdue’, and that ‘the increasing activities of the state in affairs which affect the ordinary man’ had made ‘the matter urgent’.^[89] In Royster v Cavey, following the House of Lords in the case of an injury in a munitions factory, Scott LJ in the King’s Bench called for legislation: ‘the fact is that the complexity of modern business to-day, the number of government departments that are carrying on commercial concerns, the great increase of the activities of concerns representing the government, acting for the government, and owned by the government, makes it a crying evil, that the legislation should not be passed by Parliament’.^[90] The broader context for the passing of the 1947 Act thus included the recent expression of judicial dissatisfaction with the lack of legislation,^[91] the increase in the government’s trading activities during and after the First and Second World Wars, calls for modernization from both ‘lawyers and business men’ urging ‘that the State should be placed in the same position as the subject in the courts of law’,^[92] and the character of the Labour Government and of Labour Crown lawyers after the Second World War.^[93]

The Crown Proceedings Act 1947 contains in section 2 an overt legal fiction as here defined: ‘Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject—(a) in respect of torts committed by its servants or agents; (b) in respect of any breach of those duties’ etc. In at least one prominent textbook, it has long been suggested that there was no need for legal fiction (ie that the Crown be subject to tort liability as if it were a private person) and that ‘Parliament might have reformed the law by simply enacting in general terms that the Crown should henceforth be liable in tort’.^[94] The draft Bill circulated by the Hewart Committee in 1927 had provided for direct Crown liability.^[95] Sir Thomas Barnes, the Treasury Solicitor, explained why the final 1947 Act did not do so. According to him, the Crown was only made liable as if it were a private person out of essential appreciation of the Crown’s role in performing activities that fulfilled necessary government functions, such as defence of the Realm ‘where no analogy [to private activities] exists’.^[96] Its purpose, further, was ‘to ensure…that the Crown shall not be liable for breaches of statutory duties which bind the Crown but do not at the same time bind private persons’.^[97]

In short, the fiction in section 2 of the 1947 Act was intended to prevent and not risk Crown or central government liability being increased beyond that of private persons. Its enactment was occasioned by the personalized and occasionally fictitious administrative past practice involving nominal/nominated defendants, itself perpetuated administrative personalization in the public law of tort liability, and demonstrated a propensity for fiction. This fiction’s fortunes, however, are otherwise beyond this article’s scope. The fiction was embedded in statute and, as such, was not readily itself a device open to change, rejection, or domestication which is the particular concern of this article. The fiction’s enactment was a development separate from the potential and actual change to which the courts were open in their treatment of the tort liability of other public authorities, beyond the Crown and the section 2 fiction.

Lord Reed in the Robinson case presented the Crown as an ‘important exception at common law’, at which ‘public authorities are generally subject to the same liabilities in tort as private individuals and bodies’.^[98] To Lord Reed, the Crown was simply an exception that ‘was addressed by the Crown Proceedings Act 1947, section 2’ and of which no further mention was made.^[99] ‘Equally tortious’ conduct would need to be determined at common law, where, as recognized by Lord Toulson in Michael, the ‘general principles have been worked out for the most part in cases involving private litigants’, including the principle ‘that the common law does not generally impose liability for pure omissions’.^[100] The outcome for the common law courts has been a historical problem or challenge of applying those principles to public authorities despite their obvious distinctness from private litigants in duty, power, resources, and role in policy. The issue here is how different has been their evolving answer, in their recent and seemingly formative judicial determination of the liability in negligence of the police and other public authorities for omissions. How different has been that answer from the section 2 ‘as if it were’ fiction and Dicey’s ‘every official’ as ‘every man’ equally liable under the rule of law? It is an issue of judicial direction towards something similar to the section 2 fiction or away from it through rejection, avoidance, or reduction of what might otherwise be felt or appear to be fictitious.

Changes of Judicial Language in Michael, Robinson, and N v Poole Borough Council

On eliminating fictions, Fuller contrasted two distinct ways—rejection (‘the discarding of those statements that are felt as fictional’) and redefinition (‘a change in word meaning that eliminates the element of pretense’).^[101] Rejection or explicit non-application is not relevant or applicable here for want of a clear or established fiction to discard or specifically not apply in relation to local authorities. There is only the statutory fiction in section 2 of the Crown Proceedings Act 1947, of which Lord Reed made bare mention, locating it in the exceptional area of Crown liability. Redefinition too is not relevant here for want of a clear or established fiction to redefine. A further way, however, if not necessarily to eliminate what is felt or appears to be fictitious, is for it to be reduced, for example, by being cast in a less fictitious way, as I argued was done by Dicey, using his analytical distinctions between Parliament’s legal and political sovereignty. Or it may be done through slight changes of word or modification of language that elides, reduces, or removes the element of pretense, making what is felt or might appear to be fictitious more ordinary or domesticated, integrated in argument that approximates more closely ordinary explanation, perhaps ultimately giving way to more adequate explanation.^[102]

In the recent cases of Michael, Robinson, and N v Poole BC,^[103] no use was made of the language of legal fiction—no determination of liability of public authorities as if they were private individuals or bodies—and no reference was made to legal fiction apart from Lord Reed’s brief reference in Robinson to section 2 of the Crown Proceeding Act 1947 (but not to its content) in the exceptional area of the Crown’s liability.^[104] Reference, however, was made first in Michael to a principle of equality that is Diceyan—the equal applicability to private litigants and public bodies of common law principles and their ordinary application.^[105] Then in Robinson, Lord Reed spoke similarly of ‘equally tortious’ conduct of private persons/bodies and public authorities and did cite Dicey’s famous statement that ‘every official…is under the same responsibility…as any other citizen’.^[106] Whether Dicey’s treatment of officials as every man or any citizen is fictitious in some degree, as suggested above, is a matter of perspective, conceivably not Dicey’s, but one from which the relevance of obvious differences between officials and ordinary people was appreciated but negated or neglected nonetheless. Lord Reed’s reference to Dicey, however, and his principle of equal liability, was to Dicey with a difference. Preoccupied with jurisdictional equality, Dicey did not state that under the rule of law’s second meaning—equality before the law—officials were to be treated ‘like’ any citizen. Rather, ordinary citizens and officials were to be subject to the same, single, jurisdiction, in contrast to the dual French jurisdiction.^[107] In Robinson and N v Poole BC, alongside references to the subjection of public authorities and private individuals and bodies ‘to the same liabilities in tort’, to law applied ‘in the same way’ and with ‘the same general principles’,^[108] Lord Reed also introduced the word ‘like’: ‘public authorities, like private individuals and bodies, are generally under no duty of care to prevent the occurrence of harm’, and ‘like private individuals and bodies, can come under a duty of care to prevent’ it in certain circumstances but in ‘the absence of such circumstances…public authorities generally owe no duty of care towards individuals to confer a benefit upon them by protecting them from harm, any more than would a private individual or body’.^[109] In ordinary legal argument so as to treat like cases alike, ‘like’ is the language of an analogy. That introducing it suggested the use of analogy, arguably to establish a more integrated and compelling uniform approach, and not just another way of expressing ‘in the same way as’, was a concurrent change in respect of what was being likened.

In contrast to Lord Toulson’s statement of the traditional omissions rule in Michael ‘that the common law does not generally impose liability for pure omissions’, which Lord Reed also cited, Lord Reed’s own statement was that ‘public authorities generally owe no duty of care towards individuals to confer a benefit upon them by protecting them from harm’.^[110] In N v Poole BC, where there was the same concurrence of the introduction of ‘like’ and reference to the non-conferral of benefit, Lord Reed explained his intent:

In this context I am intentionally drawing a distinction between causing harm (making things worse) and failing to confer a benefit (not making things better), rather than the more traditional distinction between acts and omissions, partly because the former language better conveys the rationale of the distinction drawn in the authorities, and partly because the distinction between acts and omissions seems to be found difficult to apply.^[111]

Drawing particularly on Lord Hoffmann’s speeches in the earlier cases of Stovin v Wise^[112] and Gorringe v Calderdale Metropolitan Borough Council^[113]on the failure to provide a service or confer a benefit in the context of statutory powers and duties,^[114] Lord Reed, through the change of judicial language,^[115] improved the pertinence and persuasiveness of the analogy between general lack of liability of private persons, or bodies and that of public authorities. He did so in at least five different ways. First, a benefit is distinct from an entitlement and corresponds with the general lack of liability. Secondly, non-conferral of benefit is more neutral than omission, which usually connotes some sort of neglect or failure to act when one could have acted. Thirdly, the general lack of liability for omissions is significantly out of respect for individual freedom or autonomy, which is inapplicable or questionably applied^[116] to public authorities. Fourthly, the general lack of liability for not conferring a benefit raises the question of a public authority’s resources from which the benefit is provided, as are other benefits. Fifthly, the general non-liability is made far less exceptional by greatly enlarging the category of non-liability into which it falls: from omitting to act or not acting in a category of situations where one could have acted to not conferring a benefit in the open-ended or infinite category of non-conferrals of benefit. This category is open-ended or infinite because the resources from which the benefits are provided are finite, and non-conferrals cover all situations beyond their conferral. These five advantages of the judicial change of language were in addition to the strategic advantages of not having to resort to special treatment of public policy (as in Hill)^[117] and of avoiding ‘special treatment’ or ‘special immunity’ of the police or other public authorities,^[118] potentially contravening article 6 of the European Convention on Human Rights.

The judicial turn in Michael, Robinson, and N v Poole BC was in the opposite direction of the statutory fiction for the Crown’s liability in section 2 of the Crown Proceedings Act 1947, and of the potential uncertainty of its consistent application. It was away from treating local authorities as if they were private persons or bodies, away from any ‘element of pretense’ by which Fuller tested for legal fiction.^[119] It was towards Dicey’s subjection of officials ‘as every man’ or ‘any other citizen’ under his rule of law’s jurisdictional equality before the law but it was to Dicey with a difference—Diceyan equality in the form of an improved analogy: ‘public authorities, like private individuals and bodies’ generally owing ‘no duty of care towards individuals to confer a benefit upon them by protecting them from harm’.^[120] If there was from one perspective fiction in Dicey’s second meaning, and if ‘the kind of problem the fiction is intended to solve’ is generally one of ‘bridging a gap between concept [‘every man’] and reality [‘every official’]’,^[121] the judicial turn narrowed the gap to one of ‘like’ not ‘as if’, or arguably closed it entirely. Whatever the fiction in the subjection of officials as ‘every man’ or ‘any other citizen’ in Dicey’s second meaning to the rule of law, it was domesticated in an analogy. The analogy was a refinement that was formal but not only formal—a rephrasing of ‘omissions’ as ‘non-conferrals of benefit’ but indirectly suggesting the critical substantive issue of the scarce public resources from which benefits are provided.

In the recent joint appeals of HXA and YXA, with basic fact settings similar to that of N v Poole BC, the Supreme Court applied the case, holding that no arguable duty of care was owed as alleged and that the claims had been correctly struck out at first instance. It emphasized that ‘[a]fter N v Poole this is not a developing or uncertain area of law’: ‘Our decisions in these appeals should remove any conceivable doubt that lawyers may have had in understanding the full impact of N v Poole’.^[122] This emphasis might well be conclusive in legal practice in relation to local authority liability, helped by the change in judicial language. Whether it silences academic criticism is less likely, depending on any continuing vulnerability of the improved analogy to which the Supreme Court has decisively turned, arguably in establishing a more integrated and compelling uniform approach.^[123] The improved analogy, particularly in relation to the highly variable facts of police inaction, might well still be criticized as strained or artificial, necessitating further refinement of the proximity-of-relationship exception to the general lack of liability of the police for not conferring a benefit in the form of protecting an individual from harm, as suggested by Lord Kerr and Lady Hale in their dissents in Michael and by others in academia^[124] but rejected by the majority in Michael.^[125] Indeed, analogy itself has recently been questioned in academia, and something similar even hinted at by a former Lord Justice of Appeal, for being orientated differently—reversed—from the way that is commonly assumed.^[126]

In the recent formative cases on liability for omissions or non-conferrals of benefit, the historical problem of applying to public authorities the common law of tort liability in negligence, developed for the most part in cases involving private litigants, has been made less acute, at least not exacerbated. This has been achieved here by establishing the liability in negligence of public authorities like that of private persons or bodies, and by refining the language in respect of which they are likened. Knowing neglect of, or inattention to, obvious differences of legal authority, duty, power, and resource has been made more ordinary, still vulnerable to criticism but only, at worst, to the mainly academic charge of questionable analogy or of artificiality in strained argument.

The Role of Context

As in the case of the fiction of Parliament’s sovereignty, limitless in law and limited in actuality, and Dicey’s casting it in the analytical distinctions of ordinary analysis, context has been crucial to receptivity and domestication of fiction also in the area of liability. Four aspects of context have been particularly important. One has been both propensity for fiction (or openness to fiction) and accompanying unease about its use. That propensity was evident in the enactment of the fiction in section 2 of the Crown Proceedings Act 1947 and in the Crown practice of using nominal or nominated defendants that preceded it. Unease was evident in the eventual judicial disapproval of that practice as the immediate reason for the very enactment of section 2. Unease was also evident, one would have reason to suspect, in Lord Reed’s suggested characterization of section 2’s area of application—the Crown’s liability—as exceptional, thus that section’s fiction as a device not of any relevance to determining local authority liability.

A second aspect of context has been the traditional neglect of administrative authority as such. It is less recognized but related and comparable to the neglect of central executive authority. That the executive is in the shadows cast by the constitution’s twin pillars—parliamentary sovereignty and the rule of law^[127]—is evident in the neglect of prerogative power, the persisting rivalry of old and very old definitions of the prerogative, and the problem of ‘third source’ powers.^[128] It is also evident in ‘every official’ responsible as ‘every man’ or ‘any other citizen’ under the second meaning Dicey attributed to the rule of law,^[129] despite obvious differences in legal authority, duty, power, and resource, unavoidably relevant from one perspective, but perhaps not from Dicey’s.

Traditional neglect or negation of administrative or state authority as such is also at work in recent,^[130] particularly strong, expression of academic opposition to a modified ‘general duty to rescue other people from harm…when you are well-placed to do so’ as part of a general defence, inter alia, of the Supreme Court’s decision in Michael. Nicholas McBride contrasts two political orders. One is a State-centred ‘consumerist political order’ in which citizens ‘are encouraged to think’ of decent public services from the State as a matter of entitlement, as is a remedy against the State when not received.^[131] The other political order is the ‘democratic political order’ from which the State, at least as such, is absent, and in which citizens ‘are encouraged to think that decent public services are not a right, but an achievement—an achievement that depends on citizens taking responsibility for the kind of society they live in, and organizing together’ in various basic ways.^[132] He asks under which political order ‘are people likely to enjoy better public services’: one that ‘encourages citizens to sit back and wait for decent public services to be delivered to them, or an order that encourages citizens to do all they practically can to ensure that they receive decent public services?’^[133] His answer is emphatic: ‘Even to ask the question is to answer it—the second kind of political order is, of course, far more likely to enjoy decent public services than the first’.^[134] That McBride’s opposition to a modified general duty to rescue is an outcome of political preference for and cultural receptivity to non-State personalized participative democracy is evident in the slant and starkness of the contrast, the narrowness of the options, and the suggested obviousness of the answer.

Third and fourth aspects of context are less likely to be contentious and can be mentioned briefly. A third aspect has been concern about the scarcity of public resources and not to dictate financial priorities to governing authorities. It contributed, for example, to the fiction enacted in the Crown Proceedings Act 1947, section 2, so that Crown liability would not be put at risk of exceeding that of private persons, and, no doubt, to the restrictive judicial attitude to liability for omissions or non-conferrals of benefit in the recent Michael line of cases.^[135] A fourth aspect of context has been the English common law. The recent judicial determination of the tort liability of public authorities, like that of private citizens, for omissions, and then refinement of the language in respect of which they are being likened—non-conferrals of benefit—is incremental judicial reasoning that is characteristic of the English common law.

More Ordinary and Extraordinary Legal Forms and Fictions

What is to be learnt from these two examples: fiction cast in the analytical distinctions of Dicey’s doctrine of parliamentary sovereignty, limitless in law and limited in actuality; and the developments above in the tort liability of public authorities, as if, and like, private litigants under equality before the law? What we have here has been a propensity for fiction, but not simply fiction that has either to be retained or rejected. Rather, it has been fiction intertwined in orthodox Diceyan doctrine with pervasive effect in the areas of legality and liability in public law.

Accompanying the use of fiction, however, has also been serious unease, repeatedly expressed by Dicey in numerous writings, and also in The Law of the Constitution, where he questioned whether the doctrine of parliamentary sovereignty is a ‘dogma…no better than a legal fiction’.^[136] Dicey therefore attempted to domesticate it. He integrated the extraordinary prospect, the fictitious form, in the ordinary analysis of his analytical distinctions, between legal and political senses of sovereignty: the one unlimited in law; the other limited in actuality. Comparably, in Michael, Robinson, and N v Poole BC, the Supreme Court avoided anything like the extraordinary fiction in section 2 of the Crown Proceedings Act 1947 and refined an ordinary analogy in respect of what private litigants and public authorities were being likened, turning the issue of tort liability in negligence from being one of liability for omissions into one for non-conferrals of benefit. In each case, the more ordinary forms have fitted the contexts of which they have been products: analytical professorial distinctions in the expounding and learning about the law, on the one hand; and, on the other, characteristic judicial reasoning, as well as the indistinctness of local and central executive authority, in the English^[137] common law tradition. The more ordinary forms have been in context the varying products of domestication, at least in appearance. In being domesticated, the more extraordinary fictitious forms have been ongoing in one sense of the word ‘current’ and, in the other more usual sense, remain relevant now, though in different ways.

Concluding on special dependence of more ordinary or extraordinary forms and fictions on the British or English constitutional legal or cultural context is difficult and necessarily tentative. Dicey’s own attribution of love for legal forms and ‘acquiescence in fictions’ to the very legal ‘spirit’ or character of the English constitution affords some evidence,^[138] as does his own use of fiction, his accompanying unease, and the strength of his appeal and influence. Actual comparative evidence, however, would also be necessary and might well be elusive. The comparativist would need, further, more than determination in clarifying that evidence. Similarly needed would be mindfulness that those more ordinary legal forms that are elaborated on in this article also approximate the ordinary, non-legal, and perhaps non-jurisdictional, distinctions, and analogies in our everyday work and play, as do the less ordinary fictions. In the “Introduction” section, the claim was made that this article is not about the Safety of Rwanda (Asylum and Immigration) Act 2024…but how could it not be, to some extent, in the context in which this article was initially elaborated? The fiction that this article is not about that Act was useful so as to sidestep the political controversy and to avoid compromising the Right Honourable Lord Sales as Chair of the Current Legal Problems Lecture in which this article’s treatment of Parliament’s sovereignty in terms of legal fiction was first presented. It was useful at a time when the Bill that was to become the 2024 Act raised issues of legal fiction, about an extraordinary enacted legal fiction,^[139] on which the Supreme Court might have had to rule. Abiding by this article’s own ordinary fiction was necessary but doing so was thus also only a formal aspiration or an apparent commitment, at least in the British or English legal context.

1. See eg R von Jhering,L’Esprit du Droit Romain dans les Diverses Phases de son Développement(O de Meulenaere tr, 3rd edn, Librairie Marescq Ainé 1887) IV: 292–301; Jeremy Bentham,The Works of Jeremy Bentham(John Bowring ed, William Tate 1843) VII: 283–287; Lon L Fuller,Legal Fictions(Stanford University Press 1967); JH Baker, ‘Legal Fictions’ in JH Baker (ed),The Law’s Two Bodies: Some Evidential Problems in English Legal History(Clarendon Law Lectures, OUP 2001) 33–57. ↑
2. See Pierluigi Chiassoni,Interpretation without Truth: A Realistic Enquiry(Springer 2019), ch 8; Maksymilian Del Mar,Artefacts of Legal Inquiry: The Value of Imagination in Adjudication(Hart 2020), ch 5; Liron Shmilovits,Legal Fictions in Private Law(CUP 2022). ↑
3. Adam Tucker, ‘The Rwanda Policy, Legal Fiction(s), and Parliament’s Legislative Authority’ (UK Const L Blog, 22 November 2023) https://ukconstitutionallaw.org/ accessed 4 September 2024. ↑
4. On fictions before their reform in the nineteenth century, see Michael Lobban, ‘Legal Fictions before the Age of Reform’ in Maksymilian Del Mar and William Twining (eds),Legal Fictions in Theory and Practice(Springer 2015) 199–223. ↑
5. ‘Every decision-maker must conclusively treat the Republic of Rwanda as a safe country’, Safety of Rwanda (Asylum and Immigration) Act 2024, s 2(1). The enactment’s purpose was ‘to prevent and deter unlawful migration’, ibid s 1(1). ↑
6. Summer Time Act 1972, s 3(1). ↑
7. See eg Bentham,Works(n 1) I: 243; VII: 283–287; William Blackstone,Commentaries on the Laws of England(Clarendon Press 1765–1769) III: 43, 107. ↑
8. See generally Fuller,Legal Fictions(n 1) 49–92; Shmilovits,Legal Fictions(n 2) 15–110. Cf the reduction in varieties according to the narrow definition of legal fiction in Baker, ‘Legal Fictions’ (n 1) 39–45. ↑
9. JWF Allison,A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Public Law(rev edn, OUP 2000) 34–41, 235–245, 250–252. ↑
10. JWF Allison,The English Historical Constitution: Continuity, Change and European Effects(CUP 2007) xi–xii, 28–40, 243–244. ↑
11. Robert S Rait (ed),Memorials of Albert Venn Dicey, Being chiefly Letters and Diaries(Macmillan 1925) 72–73. ↑
12. Fuller,Legal Fictions(n 1) viii. ↑
13. On eliminating legal fictions, Fuller contrasted ‘rejection’ and ‘redefinition’, ibid 20–23. See the text before and after n 101 below. ↑
14. ibid 9. ↑
15. Lon L Fuller, ‘Legal Fictions’ (1930–1931) 25 Illinois Law Review 363, 513, 877. ↑
16. See Del Mar,Artefacts of Legal Inquiry(n 2) 238–243; Shmilovits,Legal Fictions(n 2) 74–81. ↑
17. Fuller,Legal Fictions(n 1) 9 (emphasis added). ↑
18. ibid 9–10 (emphasis added). ↑
19. Baker excludes rules of law expressed as fictions because, although ‘often said to be fictions’, they ‘cannot be true or false in the factual sense’, ‘Legal Fictions’ (n 1) 44. ↑
20. Consider, for example, the distinction between the grounds of error of fact and error of law in judicial review, and Jolowicz on ‘Da mihi factum dabo tibi jus’ in demarcating the role of the parties and that of the judge in English and French law, JA Jolowicz,On Civil Procedure(CUP 2000) 185–204. ↑
21. This illustration of the fact-law distinction’s versality is as remembered from personal discussion with the judge (in 1987) whose name I have been unable to recall or establish. ↑
22. Fuller,Legal Fictions(n 1) 134. ↑
23. ibid ch 2. ↑
24. Fuller, ‘Means and Ends’ in Kenneth I Winston (ed),The Principles of Social Order: Selected Essays of Lon L. Fuller(Duke University Press 1981) 47–64, 54. ↑
25. Robert S Summers,Lon L. Fuller(Edward Arnold 1984) 153. See also ibid 2 and chs 6–8. ↑
26. Eg Shmilovits,Legal Fictions(n 2) 112–113, 225. See generally ibid 74–81, 187–88. ↑
27. Baker, ‘Legal Fictions’ (n 1) 57, 43–45; Fuller,Legal Fictions(n 1) 81–83. ↑
28. Baker, ‘Legal Fictions’ (n 1) 49, 55, 49. ↑
29. JWF Allison, Editor’s Introduction, AV Dicey,The Law of the Constitution(The Oxford Edition of Dicey, vol I, JWF Allison ed, OUP 2019) xi–xvi. ↑
30. Dicey,The Law of the Constitution(n 29) 12–19. ↑
31. ibid 12. ↑
32. AV Dicey,Lectures on the Relation between Law & Public Opinion in England during the Nineteenth Century(2nd edn, Macmillan 1914) 91–94, 91. ↑
33. AV Dicey,Comparative Constitutionalism(The Oxford Edition ofDicey, vol II, JWF Allison (ed), OUP 2019) 70, 92, 181–182. ↑
34. ibid 176–182, 178. ↑
35. ibid 182, 181–182. ↑
36. Vernon Bogdanor, ‘Dicey and the Reform of the Constitution’ [1985] PL 652, 658. See also Allison, Editor’s Introduction, Dicey,Comparative Constitutionalism(n 33) xix. ↑
37. Gregory Conti (ed),Albert Venn Dicey: Writings on Democracy and the Referendum(CUP 2023); JWF Allison, ‘Beyond the Unreality of Legal Fictions and False Forms’, paper, Conti book launch, 14 April 2023, University of Princeton. ↑
38. Dicey in Conti (ed),Dicey: Writings(n 37) 16–52, 46, 49. ↑
39. ibid 81–102, 101. ↑
40. Richard A Cosgrove,The Rule of Law: Albert Venn Dicey, Victorian Jurist(University of North Carolina Press 1980) 69–70. Timothy Endicott notes: ‘Dicey’s contemporaries came to think of him as an Austinian, and the idea has been popular ever since. And yet, as Mark D. Walters has very helpfully shown, there was a deep difference of outlook between Dicey and Austin’, ‘Dicey and Analytical Jurisprudence’ in Andrew Dickinson, Timothy Endicott and Wolfgang Ernst (eds),Dicey + 100, Albert Venn Dicey: A Centennial Commemoration(Intersentia 2024) 41–57, 56. ↑
41. TRS Allan,The Sovereignty of Law: Freedom, Constitution, and Common Law(Oxford 2013) 10–11, 51–54; Mark D Walters,A.V. Dicey and the Common Law Constitutional Tradition: A Legal Turn of Mind(CUP 2020), 360, 369. ↑
42. ‘The Defence of the Union’ in Conti (ed),Dicey: Writings(n 37) 81–102, 94. ↑
43. Dicey,The Law of the Constitution(n 29) 17;Prohibitions del Roy(1608) 12 Co Rep 63. ↑
44. See below for his second such principle, the rule of law. The third of his ‘two or three guiding principles’ that pervade the constitution—the dependence of constitutional conventions on the law of the constitution—was subordinate, Dicey,The Law of the Constitution(n 29) 5. On its being subordinate, see ibid 211–213. ↑
45. Jackson v Attorney General[2005] UKHL 56, [2006] 1 AC 262 [102]. ↑
46. The Law of the Constitution(n 29) 184. ↑
47. ibid 27, 42. By ‘speculative’, Dicey seems to have intended the term’s early sense of close observation and attention rather than its later sense of conjecture. ↑
48. ibid 42. ↑
49. ibid. ↑
50. ibid 42–44. ↑
51. ibid. ↑
52. But see Dicey, ‘Introduction’ inThe Law of the Constitution(8th edn), ibid 426. ↑
53. The Law of theConstitution (n 29) 43. ↑
54. ibid 44. ↑
55. ibid 44–49, 46. ↑
56. ibid 426. ↑
57. ibid 426–427. ↑
58. R (Miller) v Secretary of State for Exiting the European Union[2017] UKSC 5, [2018] AC 61. ↑
59. ibid [60]. ↑
60. ibid [66]. ↑
61. ibid [67]. ↑
62. Ellen Street Estates Ltd v Minister of Health[1934] 1 KB 590, 597. ↑
63. Jackson v Attorney General(n 45) [159]. For an alternative approach, using the concepts of ‘constituted powers’ and ‘constituent power’ of general constitutional theory to explain the Supreme Court’s position, see Thomas Poole, ‘Devotion to Legalism: On the Brexit Case’ (2017) 80 MLR 696, 702–703. For more on the degree of judicial scepticism about the very notion of a rule of recognition suggested in the phrase ‘theso-calledfundamental rule of recognition’ (Miller 1(n 58) [60] (emphasis added)), see John Bell, ‘Sources of Law’ [2018] CLJ 40, 68–70; Allison,English Historical Constitution(n 10), 110–119; JWF Allison, ‘Parliamentary Sovereignty, Europe and the Economy of the Common Law’ in Mads Andenas (ed),Judicial Review in International Perspective: Liber Amicorum in Honour of Lord Slynn of Hadley(Kluwer 2000) II: 177, 182–189. ↑
64. The Law of the Constitution(n 29) 41–44, 42; Dicey, Introduction, 8th edn, ibid 426. ↑
65. Dicey,Comparative Constitutionalism(n 33) 70, 181–182. ↑
66. Another such far-reaching constraint on Parliament’s actual sovereignty has been through increased delegation of legislative power to the executive in Henry VIII clauses. On these generally far-reaching constraints and the tension between and blurring of legal and political senses of sovereignty, see John WF Allison, ‘The Westminster Parliament’s Formal Sovereignty in Britain and Europe from a Historical Perspective’ (II semester 2017) 34 Journal of Constitutional History 57. ↑
67. Jackson v Attorney General(n 45) [102]. See also ibid [126] (Lord Hope]. Cf ibid [9] (Lord Bingham), [141] (Lord Walker), [159] (Baroness Hale). ↑
68. Cf generallyR (Privacy International) v Investigatory Powers Tribunal[2019] UKSC 22, [2019] 2 WLR 1219: [144] (Lord Carnwath, cc Lady Hale and Lord Kerr); [168] (Lord Lloyd-Jones); and in dissenting [207]–[209] (Lord Sumption (cc Lord Reed)), [253] (Lord Wilson). ↑
69. ‘The second issue poses the question—“whether, and, if so, in accordance with what principles, Parliament may by statute “oust” the supervisory jurisdiction of the High Court to quash the decision of an inferior court or tribunal of limited statutory jurisdiction?”’ ibid [113] (Lord Carnwath). ↑
70. The Law of the Constitution(n 29) Introduction, 8th edn, 426. ↑
71. Dicey,Comparative Constitutionalism(n 33) 214–228, 218. ↑
72. See ibid, Editor’s Introduction, xxxv–xxxvii. ↑
73. The Law of the Constitution(n 29), 42. See ibid, Editor’s Introduction, xxiv ff, xxxviii–xxxix. ↑
74. Jacksoncase (n 45) [102] (Lord Steyn). ↑
75. The Law of the Constitution(n 29) 100. ↑
76. ibid 101. ↑
77. ibid 97. ↑
78. ibid 115 (emphasis added). ↑
79. Dicey’s preoccupation with jurisdictional equality was evident in the high degree to which he actually admired the substantive working of French administrative law. He expressed his admiration in his preface to the French edition ofThe Law of the Constitution(ibid 325–326) and in his previously unpublished Note 17 (‘Conclusions as to FrenchDroitAdministratif’,Comparative Constitutionalism(n 33) 307–314), but nonetheless continued to present the dual French jurisdiction as a violation of the rule of law in its second meaning (ibid, Editor’s Introduction, xxxviii–xxxix). ↑
80. Fuller,Legal Fictions(n 1) 9. The phrase ‘wilful blindness’ was suggested to me by Marie-France Fortin. ↑
81. The Law of the Constitution(n 29) 412–413. ↑
82. ibid 412. On the historical evolution of ‘the Crown can do no wrong’ in English legal thinking, see Marie-France Fortin,The King Can Do No Wrong: Constitutional Fundamentals, Common Law History, and Crown Liability(OUP 2024). ↑
83. The Law of the Constitution(n 29) 413. ↑
84. TT Arvind, ‘Restraining the State through Tort? The Crown Proceedings Act in Retrospect’ in TT Arvind and Jenny Steele (eds),Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change(Hart 2012) 405–433, 406–410. ↑
85. ibid. ↑
86. On the complex background and ‘convoluted history of the 1947 Act’, see ibid 405–433, 430. See also Joseph M Jacob, ‘The Debates behind an Act: Crown Proceedings Reform, 1920–1947’ [1992] PL 452. ↑
87. Adams v Naylor[1946] AC 543. ↑
88. ibid 550 (Viscount Simon), 551 (Lord Thankerton). ↑
89. ibid 552–553 (Lord Simonds), 555 (Lord Uthwatt). ↑
90. [1947] 1 KB 204, 210. ↑
91. See Harry Street, ‘Crown Proceedings Act, 1947’ (1948) 11 MLR 129, 129. ↑
92. Sir Thomas Barnes, ‘The Crown Proceedings Act, 1947’ (1948) 26 Canadian Bar Review 387, 389. ↑
93. Jacob, ‘Debates Behind an Act’ (n 86) 474–476. ↑
94. Colin Turpin,British Government and the Constitution(3rd edn, CUP 1995) 515; Alison L Young,Turpin and Tomkins’ British Government and the Constitution(8th edn, CUP 2021) 879. ↑
95. Extracts from the Bill are reproduced in Jacob, Annex, ‘Debates Behind an Act’ (n 86) 483–484. See Arvind, ‘Restraining the State through Tort?’ (n 84) 424–425. ↑
96. Barnes, ‘Crown Proceedings Act’ (n 92) 390. ↑
97. ibid 391. ↑
98. Robinson v Chief Constable of West Yorkshire Police[2018] UKSC 4, [2018] AC 736 [32]. ↑
99. ibid. ↑
100. ibid [33];Michael v Chief Constable of South Wales Police[2015] UKSC 2, [2015] AC 1732 [101], [97]. ↑
101. Fuller,Legal Fictions(n 1) 20–23, 20. A fiction might also become a ‘dead fiction’ through a change of meaning, ibid 14–19. See eg ibid 40. ↑
102. See eg ibid 70–71. ↑
103. N v Poole Borough Council[2019] UKSC 25, [2020] AC 780. ↑
104. Robinson(n 98) [32]. See alsoN v Poole BC(n 103) [26]. ↑
105. Michael(n 100) [101] [116]. ↑
106. Robinson(n 98) [33], [32]. ↑
107. Dicey’s marginal heading to the statement cited by Lord Reed is ‘Every man subject to ordinary law administered by ordinary tribunals’,The Law of the Constitution(n 29) 100. See Editor’s Introduction, Dicey,Comparative Constitutionalism(n 33) xxxviii–xxxix. ↑
108. Robinson(n 98) [32], [40];N v Poole BC(n 103) [26], [44], [75]. These references are suggestive of the ‘uniform approach’, Nicholas J McBride, ‘Michaeland the Future of Tort Law’ (2016) 32 Professional Negligence 14, 15–16. ↑
109. Robinson(n 98) [34], [35] (emphasis added). ↑
110. Michael(n 100) [97];Robinson(n 98) [35]. ↑
111. N v Poole BC(103) [28]. ↑
112. [1996] AC 923. ↑
113. [2004] UKHL 15, [2004] 1 WLR 1057 [32]. ↑
114. Robinson(n 98) [31], [39]–[41];N v Poole BC(n 103) [31]–[33]. See alsoMichael(n 100) [108]–[111]. ↑
115. Academic literature is likely to have contributed to the change of judicial language. In the most recent addition to the line of cases being considered,HXA v Surrey County Council, YXA v Wolverhampton City Council[2023] UKSC 52, [2023] 1 WLR 116 [87], the Supreme Court referred to two ‘illuminating articles’: MJ Bowman and SH Bailey, ‘Negligence in the Realms of Public Law—A Positive Obligation to Rescue?’ [1984] PL 277; SH Bailey and MJ Bowman, ‘Public Authority Negligence Revisited’ [2000] CLJ 85. See also Donal Nolan, ‘The Liability of Public Authorities for Failing to Confer Benefits’ (2011) 127 LQR 260; Robert Stevens, ‘Salvaging of the Law of Torts’ in Paul S Davies and Justine Pila (eds),The Jurisprudence of Lord Hoffmann: A Festschrift in Honour of Lord Hoffmann(Hart 2015) 85–96. ↑
116. See Stelios Tofaris and Sandy Steel, ‘Negligence Liability for Omissions and the Police’ [2016] CLJ 128, 130; David Howarth, ‘Fear and Loathing in Dorset: No Public Authority Duty to Protect?’ [2018] CLJ 248, 250. Cf Stevens, ‘Salvaging of the Law of Torts’ (n 115) 87–91. ↑
117. Robinson(n 98) [40]. Public policy remained relevant only to ‘an argument by analogy for extending liability to a new situation’,Michael(n 100) [102];Robinson(n 98) [42];N v Poole BC(n 103) [64]. CfHill v Chief Constable of West Yorkshire[1989] AC 53. ↑
118. Michael(n 100) [115], [116];Robinson(n 98) [50]. ↑
119. See eg Fuller,Legal Fictions(n 1) 40. See also ibid 19. ↑
120. Robinson(n 98) [35] (emphasis added). ↑
121. Fuller,Legal Fictions(n 1) xi–xii. ↑
122. HXA and YXA(n 115) [102] (Lord Burrows and Lord Stephens; cc Lord Reed, Lord Briggs, and Lord Sales). ↑
123. See Tofaris and Steel, ‘Negligence Liability for Omissions’ (n 116); Stelios Tofaris, ‘Duty of Care in Negligence: A Return to Orthodoxy?’ [2018] CLJ 454; Howarth, ‘Fear and Loathing in Dorset’ (n 116). ↑
124. Tofaris and Steel, ‘Negligence Liability for Omissions’ (n 116) 149–152;Michael(n 100) [144]–[157] (Lord Kerr), [189], [197] (Lady Hale). ↑
125. Michael(n 100) [131]–[137] (Lord Toulson). ↑
126. See eg Shivprasad Swaminathan, ‘Analogy Reversed’ [2021] CLJ 366; Sir Stephen Sedley, Foreword, Mark Elliott, Jack Williams, and Alison L Young (eds),The UK Constitution afterMiller (Hart 2018) v–vi. ↑
127. The title of the CLP lecture that I was originally scheduled to give well before the COVID-19 pandemic was ‘Executive Obligation—in the Shadows of the Constitution’s Twin Pillars’. ↑
128. See Timothy Endicott, ‘Lawful Power’ (2017) 15 New Zealand Journal of Public and International Law’ 1; Blackstone,Commentaries(n 7) I: 232; Dicey,The Law of the Constitution(n 29) 189; BV Harris, ‘The “Third Source” of Authority for Government Action’ (1992) 109 LQR 626; BV Harris, ‘The “Third Source” of Authority for Government Action Revisited’ (2007) 123 LQR 225; BV Harris, ‘Government “Third Source” Action and Common Law Constitutionalism’ (2010) 126 LQR 373; Adam Perry, ‘The Crown’s Administrative Powers’ (2015) 131 LQR 652. See egMalone v Metropolitan Police Commissioner[1979] Ch 344, 366–367. ↑
129. The Law of the Constitution(n 29) 100. ↑
130. Nicholas J McBride,The Humanity of Private Law: Part I, Explanation(Hart 2019) 3–4, 119–123, 120. ↑
131. ibid 122. ↑
132. ibid. ↑
133. ibid. ↑
134. ibid. ↑
135. See egMichael(n 100) [122] (Lord Toulson). ↑
136. The Law of the Constitution(n 29) 42. ↑
137. Cf generally Marcel Morabito and Guillaume Tusseau (eds),Comparative Executive Power in Europe: Perspectives on Accountability from Law, History and Political Science(vol I),Regional Accountability and Executive Power in Europe(vol II) (Routledge 2024). ↑
138. Dicey,Comparative Constitutionalism(n 33) 181, 70. ↑
139. By the argument this article puts forward, the extraordinary fiction in the 2024 Act, in being enacted, is comparable to the fiction in section 2 of the Crown Proceedings Act 1947. It was embedded in statute and, if it were operative or were to become operative, it would not readily be open to the change, rejection, or domestication evident in this article’s case studies. ↑