Constitutional Law - Legitimacy, Separation of Powers and the Rule of Law

Question 1

What is legitimacy?

Answer 1

• Political power must be derived from a valid source of authority
• Rule of Law and Separation of powers are the two key constiutional principles that buttress the legitimacy of the UK’s constitution and prevent the arbitary exercise of power.

Question 2

What is meant by ‘No arbitrary exercise of power by the state or government’?

Answer 2

Legal certainty
- Citizens should be able to rely on laws that are both made and set our clearly
- There should be no arbitary exercise of power, where the Government disregards the law and acts in any manner it sees fit
Personal liberty
- Citizens should be detained and subject to punishment only if they have broken the law

Right to a fair trial
- Citizens have a right to fair procedures for determining civil or criminal liability

Rule of Law

Question 3

What is meant by ‘Equality before the law’?

Discrimination and Equality

Rule of Law

Answer 3

• Not only equality between citizens but also between public officials and citizens
• Cases should be treated in similar ways - should be no unjustified discrimination (e.g. on the grounds of race or gender)
• State officials have no exemption from legal control or accountability as a result of their position and are subject to the ‘ordinary’ law
• Members of the executive should not legislate or adjudicate in court cases

Question 4

What is the importance of the Rule of Law?

Answer 4

Observing the rule of law should ensure that
1. The government is prevented from exercising arbitary power
2. Government can be held accountable for its actions (through the process of judicial review, in which the courts ensure that the Government does not exceed or abuse the powers that it has been granted)
3. Law is set out clearly for all citizens and made properly following a set procedure
4. Law does not operate retrospectively (i.e. someone should not be punished for an act that was not a crime at the time he carried out that act, and if that act subsequently becomes a crime)
5. There is equality before the law for all citizens
6. There is equal access to the law and the Government or state has no special exemptions or ‘gets-out’
7. Citizens have a means of legal redress for their grievances
8. The indepdence of the judiciary is maintained, thereby preserving the separation of powers and prventing the Government from exercising its powers in an arbitrary way

Question 5

Give an example where the courts have used the rule of law in a judgement of their case (right to liberty)?

Detaining terrorist suspects without trial

Answer 5

Belmarsh case
* 2001 Act permitted foreign nationals suspected of being involved in terrorist activities (but against whom there was insufficient evidence to bring criminal proceedings) to be detained indefinitely without trial.
* HOL held that such provisions breached Article 5 (right to liberty and security) and Article 14 (protection from discrimination) of the ECHR
* Detained suspected terrorists should not have been detained under the 2001 Act
* Indefinite imprisonment without a charge or trial is NOT PERMITTED under the rule of law

Question 6

Give an example where the courts have used the rule of law in a judgement (right to a fair hearing)?

Answer 6

Anderson v SoS - Article 6(1) Right to Fair Trial Breach
* Case involved an offender who had been convicted of murder and been given a mandatory life sentenced, accompanied by a tarrif, a minimum term that the prisoner must serve before they may be considered for release on licence
* At the time of the case, although the trial judge recommended the tarrif, s29 of the Crime (Sentences Act) gave the Home Secretary the power to set it
* The Home Secretary - increased the tarrif beyond that recommended by the trial judge - claimant challenged the increase in tarrif arguing the Home Secretary’s power was a breach of Article 6(1) Right to Fair Trial

Lord Steyn held
- Proposition that a decision to punish an offender by ordering him to serve a period of imprisonment may only be made by a court of law
- it is the courts power to decide upon the compatability of incomptability.

Question 7

Give an example where the courts have used the rule of law in a judgement (Access to justice)?

Think of paying a fee to have your case heard at court…

Answer 7

R (Unison) v Lord Chancellor
- Employment Tribunals Fee Order - relating to proceedings in employment tribunals and appeals. Claimants had to pay fees if they were to bring a proceeding.
- Trade Union, UNISON challenged the fees order by way of judicial review on various grounds - including their effect on access to justice. Supreme Court held that the fees order was unlawful.

HELD
- access to justice and rule of law and for the fees to be lawful, they had to be set at a level that everyone can afford, taking into account the availability of full or partial remission. Even if the fees were affordable, they may still prevent access to justice.

Question 8

Give an example where the courts have used the rule of law in a judgement (Equality before the law)?

Answer 8

M v Home Office
- A citizen of Zaire had applied for political asylum in UK but his application was refused and he was informed that he would be deported
- He applied to the High Court for judicial review of the refusal and the court asked for M’s deportation to be delayed while he considered the case. M was already on the plane for London to Paris on his way to Zaire
- When the judge was told about the situation, he made an interim order for Ms return to the UK.
- Home Office officials arranged for M’s return, but the Home
Secretary cancelled those arrangements, believing he had acted legally in ordering M’s
deportation and that the judge did not have the legal power to make an interim order against
a minister of the Crown.

HELD in Court of Appeal
- It was held that the Home Secretary was in contempt of court in ignoring them, rejecting his argument that contempt and injunctions do not apply to the Crown
- UK constitution does not grant special privileges or immunities to officers of the state

Question 9

So how do judges uphold the rule of law without infringing on parliamentary sovereignty?

Answer 9

• There is sometimes tension between parlaimentary sovereignty and the rule of law.
• Courts have generally acknowledged parliamentary sovereignty by following the principle of ‘legality’.
• Legality principle - requires parliament to confront what it is doing and act within its powers
• Fundamental rights cannot be overriden by general or ambigious words. This assumption can be displaced only by ‘clear and specific provision to the contrary’.
• Laws should be enacted properly and should be clear
• Law should not be applied arbitrarily, **no one is above the law **and no one may be punished other than in accordance with the law.

Question 10

What are the limits to the extent that the courts will still uphold the rule of law?

Saudia Arabia, Fraud Blackmail case.

Answer 10

• Director of the serious fraud office decided to halt an investigation into the alleged corruption of a company engaged in arms trading with Saudia Arabia following a threat by Saudia Arabia to end co-operation in counter-terrorism initiatives if the investigations continued.
• Ministers advised the director that if the investigations continued those threats would be carried out with grave consequences both for the arms trade and for the safety of British citizens
• Court of Appeal held - he had acted lawfully in deciding that the public interest in pursuing an important investigation into aleged bribery was outweighed by the public interest and protecting the lives of British Citizens

Question 11

What are the separation of powers?

Principle of the constitution

Answer 11

Legislature (Parliament - House of Commons and House of Lords)- makes the law
Executive (Government of the day PM & Cabinet) - implements or administers the law
Judiciary (Courts) - resolve disputes about the law

The Monarch is in all 3 of the above categories!!! But largely ceremonial / convention.

Each branch of state
- Different role to play within the constitution, there should be no overlap between the branches either in terms of their functions or terms of their personnel
- If such an overlap were to exist, this would represent an unhealthy concentration of power, which could lead to arbitrary or oppressive government

Question 12

What are the statutory limitations on members of the executive also being members of the legislature?

Answer 12

The House of Commons Disqualification Act 1975
S1) Disqualifies certain members of the executive (civil servants, members of the armed forces, and police) from being MPs
S2) Limits the number of government ministers who may sit in the House of Commons to 95

Despite the provisions of the 1975 Act, there is clearly some overlap between the membership of the executive and the legislature, because government ministers can also be MPs (by convention the majority of government ministers are members of the House of Commons and
the remainder are members of the House of Lords)

Question 13

What is meant by the phrase ‘elective dictatorship’?

Answer 13

• Although the people elect the Government whenever a general election takes place, once the Government has been elected it can do what it wants and get Parliament to enact its legislative programme in full.
• The government (elected via first past the post) has an in-built majority in the House of Commons
• The government has a significant control over the parliamentary timetable and most of Parliament’s time is devoted to Government’s legislative programme
• Most of the bills considered by Parliament are introduced by government ministers,
  and the overwhelming majority of these bills will be passed by Parliament because the
  majority of MPs represent the governing party.
• Constitutional convention that the Government will resign if defeated in the House of Commons - means governments are able to persuade their backbench MPs to support government legislation (even if they are reluctant to do so)
• Huge pressure is placed on MPs from the governing party to support bills introduced by the Government through the government whips
• Although Parliament enacts primary legislation, many laws take the form of delegated or subordinate legislation. This is the legislation made by government ministers under powers delegated by Parliament and there are only limited opportunities for Parliament to scrutinise such legislation
• House of Lords is weak and Salisbury convention that the HoL will not reject a bill giving effect to a significant manifesto commitment of the democratically elected Government. In addition Parliament Acts 1911 and 1949 limit the power of the House of Lords to reject a bill that has been passed by the House of Commons.

Question 14

What are the examples of the checks and balances between Parliament and Government?

Answer 14

1) Question Time - PMQs (every day, weekly)., Written questions.
2) Debates ‘standing orders’ of the House of Commons provide for ‘emergency debates’ on matters that need urgent consideration. The speaker decides whether the matter should be debated. Standing orders also allow for brief debates to take place on topical issues of regional, national or international importance.
3) General committees (including public bill committees).
4) Select committees
5) Parliament and Health Service Ombudsman (can investigate complaints against the government)
6) MPs can vote down bills at 2nd and 3rd readings
7) Conventions- Individual ministerial responsibility (holding ministers to account in Parliament) and lying to parliament will result in resignation of a minister
8) Opposition Days- allow members of the opposition to put forward motions against the government. 36 days are also allocated to backbench MPs to debate issues. Parliament can ultimately vote the government out via a vote of no confidence in addition to voting down government motions and bills

9) House of Lords - can delay legislation and make it politically difficult to get a bill through. Provides effective scrutiny of government bills and can delay and provide significant political opposition to a bill and vote down an affiirmative procedure statutory instrument.

Question 15

What are the different types of committees? How do they help maintain checks and balances between Parliament and Government?

Answer 15

General committee
* scurtinise government administration within departments.
* Ministers can’t be members and the chair is elected by MPs through a secret ballot

Public Accounts Committee
* scrutinises government spending

Liason Committee
* Questions the PM directly twice a year. Parliament has ultimate control over the government’s tax and spending (but the government must get Parliament’s approval to raise taxes and borrow money)

Question 16

What are ministers responsibile for under ‘Individual ministerial responsibility’?

Remember it is a convention (non-legal rule)

Answer 16

• Responsible to Parliament both for the running and proper administration of their respective departments
• For their personal conduct
• Must be no coflict of interest between a minister’s public duties and his or her private interests
• A minister who breaches this convention must resign.

Examples of breaches
* SoS had an affair with a married woman and had her nanny’s visa application fast-tracked. In 2005 he resigned, following concerning financial interests about which he had failed to make proper disclosure
* Liam Fox - mistakenly allowed the distinction between his personal / professional duties to become ‘blurred’ and permitted a lobbyist who was a close friend to attend official meetings with him and to hand out business cards as Mr Fox adviser even though he had no official role
* Priti Patel - resigned as SoS following unauthorised meetings with Israeli government officials about which she had mislead the Foreign Secretary and PM
* Amber Rudd - resigned as HS windrush deportation scandal and misled MPs over whether the home office had targets for removing illegal immigrants
* Boris Johnson - ‘partygate’ affair and mislead Parliament over parties at 10 Downing Street

Question 17

What is collective cabinet responsibility?

Answer 17

• Cabinet collectively responsible to Parliament for the actions of the Government as a whole.
• Government must retain confidence in the House of Commons
• They shouldn’t speak out in public against policy, everything should be kepy secret if not RESIGN.

Question 18

Can a Prime Minister suspend the operation of the convention of collective cabinet responsibility?

Answer 18

Yes. It is open to the PM to suspend the operation of the convention of collective cabinet responsibility.

David Cameron did this in the run up to the EU referendum in June 2016.

Question 19

Can Parliament exercise effective scrutiny over the Government’s prerogative powers?

Answer 19

The courts have often explained their refusal to judicially review a prerogative act, by saying that the government must always justify its actions to Parliament and that there is a more suitable place to deal with political matters?

There are some areas were ministers refuse to answer questions on many prerogative powers including:
1) Prime Minister’s advice to the king
2) Grant of honours
3) Commercial contracts
4) Prosecution decisions
5) Many public appointments (e.g. judges and bishops)
6) Confidential discussions with foreign states
7) Confidential defence and national security issues

In recent years, House of Commons has asserted its independence. Since the House of Commons refused to agree to military intervention in Syria in 2013 -
* Government accepted that the new convention of deploying armed forces abroad needs to be authorised in advance by a vote of the House, except where there was an emergency and such action would not be appropriate.

Question 20

A Member of Parliament (MP) strongly disagrees with the sale of armaments to foreign contry - Albania. Can the MP do anything to stop this?

Answer 20

• The MP can raise the matter in the House of Commons by asking questions or initiating a debate.
• The government may say that these are confidential issues within the prerogative of defence. The government does not need permission from Parliament to sell arms
• Judicial review would not be available for this high policy area of defence.

Question 21

What are the legislative restrictions on the exercise of the royal prerogative?

In relation to the Treaty Ractification P.Power

Answer 21

Constitutional Reform and Governance Act 2010.

• This put parliamentary scrutiny of treaty ratification(prerogative government) by the Government on a statutory basis, giving legal effect to any resolution of the House of Commons or Lords that a treaty should not be ratified.
• Should the House of Commons take the view that the Government should not proceed to ratify a treaty, it can resolve against ratification and thus make it unlawful for the Government to ratify a treaty, but if they resolve against ratification the Government will have to produce a further explanatory statement explaining its belief that the agrement should be ratified.
• Whilst treaty ratification remains a prergoative power, the House of Commons can prevent the Government from exercising it.
• Treaties are subject to the negative resolution procedure, which means that no debate or vote is required prior to ratification.
• Indeed, no debates have taken place in the House of Commons under the provisions in the 2010 Act since it was passed.

Question 22

When did the importance of judicial independence from the executive come about?

Answer 22

Constitutional Reform Act 2005
* S3 - Government is under a duty to uphold independence of the judiciary and that individual ministers should not seek to influence particular decisions through any special access to judiciary.
* Key law that strengthened the independence of the judiciary by making Lord Chief Justice the head of the judiciary instead of a government minister and making the Judicial Appointments Committee. Also established the UK Supreme Court as the highest court in the land, sitting completely separate from Parliament and the government

Question 23

Explain ways that the the judiciary is independent from the executive?

Answer 23

Judiciary must be independent of government - government cannot influence judges and must protect judicial independence. This is secured by:

1) Judicial Appointments Committee - independent of the Government and impartial, appoints must judges based only on merit, the Supreme Court has a separate independent procedure for appointing judges. Prior to the Act, the appointment of the judiciary was in the hands of the executive and was conducted on the basis of ‘secret soundings’.
2) Security of tenure - judge’s job is guaranteed - they can only be removed by a majority vote in the Commons and the Lords
3) Salaries- an independent body determines a judge’s salary (not any government or Parliamentary body)
4) Contempt of court law - any bribing of judges would be contempt of court and imprisonable.
5) Immunity from suit - a judge cannot be sued for the judgement they make, they are never worried about thinking indepdently
6) Convention and statute - by convention, government does not comment on judges, or their decisions and judge’s don’t comment on politics. Under law, judges are disqualified from sitting in Parliament and cannot be involved in party politics
7) Sub-judice rule - Parliament and the government are not allowed to discuss any ongoing cases
8) Lord Chief Justice - is the head of the judiciary rather than governemnt minister as previously. LCJ oversees the training and guidance of judges and can represent judges to Parliament
9) Lord Chancellor - a minister of government. Has now a very limited role in the appointment of judges (which is conducted by the JAC or the Supreme Court process) and must under statute uphold the independence of the judiciary.

Question 24

What is the system for appointing judges?

Answer 24

1) Prime Minister (after receiving a recommendation from Lord Chancellor) must advise the Monarch on filing any vacancy for the Lord Chief Justice , the Mater of the Rolls, Lord Justices of Appeal, the President of the Family Division and the King’s Bench Division and High Court judges. Lord Chancellor must consult the Lord Chief Justice before making his or her recommendation and will normally ask the JAC to convene a ‘selection panel’ to select a candidate for such recommendation. Similar procedures apply to appointments as circuit judges, recorders, district judges and magistrates.
2) Appointments to fill vacanies in the Supreme Court are made by the Monarch oon the advice of the Prime Minister, who will in turn have received a recommendation from the Lord Chancellor. A ‘selection commission’ consisting of the President of the Supreme Court, a senior UK judge nominated by the president of the supreme court, and one member from each of the 3 judicial appointments bodies will select candidates for such recommendation
3) The system that has been introduced places primary responsibility for judicial appointments on independent bodies, thus minimsing any perception of improper political involvement in the appointment of judges.
4) The Act also requires that selection be based solely on merit. Nonetheless, where there are two or more candidates of equal merit, a candidate may be selected for a post in order to increase judicial diversity.

Question 25

How does the judiciary hold the executive to account?

Answer 25

• As a result of an unwritten constitution, the judiciary does not have the power to declare actions of the executive to be ‘unconstitutional’ there is no ‘higher law’ against which all other actions or pieces of legislation may be judged.

1) Process of judicial review - judiciary is able to ensure that the executive does not exceed or abuse the powers it has been granted, and that any decisions the executive is required to make are made using the correct procedure
2) If Parliament has granted statutory powers to the executive (e.g. giving a particular power to a government minister) through the mechanism of judicial review, the courts can ensure that those powers are exercised in accordance with the purpose of the statute and not exceeded or abused.

NOTE. When the courts judicially review the actions of the executive, they are examining only the legality of a decision or action, not its merits.
- The courts function is to ensure that the executive has acted within its powers and has actd using the correct procedure. This is important in preserving the separation of powers between the executive and judiciary. Were the judiciary to examine the merits of a decision, it would usurp the role of the executive.

Question 26

What are quasi-judicial functions?

Answer 26

• Some members of the executive sometimes perform quasi-judicial (judidical/executive) functions in some areas - e.g. compulsory purchase orders
• If such decisions are unlawful, irrational or breach any relevant procedural requirements, the courts can quash them.

Question 27

Where does the executive derive its powers from?

Answer 27

1) Statute
2) Royal Prerogative

Question 28

What is judicial review?

Answer 28

• Method of holding the government legally accountable.
• The government must comply with the law. This means complying with Parliamentary law (only using powers granted to them under Acts of Parliament) and exercising a royal prerogative that exists and doing so correctly (Legality Principle)

But just exercising the powers granted by Parliament or Royal Prerogative is not enough. The courts will also review the exercise of government power against the general principles of public law.

1. Legality - the government can only exercise powers granted to them under law
2. Procedural fairness - the way the government makes a decision must be fair
3. Rationality - any government decision cannot be completely irrational or illogical
4. Proportionality - the government must not infringe human rights that are qualified unless they do so proportionality (strictly necessary to achieve a legitimate aim)

Judges are not looking at the political reasons behind a government decision But judicial review is an important check on Government power because it ensures the government does not go beyond its power granted by Parliament or by prerogative.

Question 29

What are the 2 ways in which the judiciary holds the executive to account, in terms of the royal prerogative powers?

Answer 29

The judges check the government is using a royal prerogative correctly in 2 ways.

1) Extent - the prerogative power must exist. The government cannot use a prerogative power that does not exist and they cannot invent new ones. They also can’t extend the scope of a prerogative to give them more power

2) Exercise- the prerogative must be used in the right way This means that it must be exercised within constitutional principles and according to the rule of law

Example: R (Miller) No2
- The courts are willing to take a wide approach in analysing the extent of the prerogative powers. The case concerened the legality of the Prime Minister’s advice to the Queen to prorogue (suspend) Parlaiment for 5 weeks from 10 September 2019 to 14 October 2019, a period that would occupy a large portion of the time available ahead of the UK’s withdrawl from the EU - scheduled for 31 October 2019.

Supreme court classified this as being beyond the extent of the prerogative power rather than the manner of its exercise.
- The power to prorouge was limited by the constitutional principles with which it would otherwise conflcit (parliamentary sovereignty and parliamentary accountability)
- The exercise of the power was unlawful as without reasonable justification, it prevented Parliament’s ability to carry out its constitutional functions for 5 weeks. The advice to the Queen was therefore unlawful and hence the prorogation was void.

Question 30

Can new prerogative powers be created?

Answer 30

No. They cannot be created.

The scope of the existing powers cannot be extended either.

Question 31

Can the court exercise their powers to the extent of the royal prerogative powers?

Answer 31

• Their power to exercise the exercise of prergoative powers is limited.
• Court has the power to determine whether a prergogative power existed, but once it had determined the existence, it had no right to review the exercise of the power.
• E.g. the power to sign an international treaty was part of the royal prerogative and the exercise of that power was immune from judicial reiview
  *

Question 32

What are non-justicable areas of the royal prerogative powers?

Highly examinable mcq

Non-justicable - not an appropriate area for the involvement of the courts

Answer 32

1. Making international treaties
2. Control of the armed forces
3. Defence of the realm
4. The dissolution of Parliament (following the repeal of the fixed term Parliaments Act 2011, the power to dissolve Parliament is once again a prerogative power)
5. The prerogative of mercy
6. Granting public honours

NOTE. The courts have sometimes still reviewed some of the above preorgative powers.
If it is an area of ‘high politics’ - e.g. national security, defence of the realm, making of international treaties - if the judiciary are concerened that reviewing the actions of the executive in these areas will lead to their becoming politicised and potentially lose their independence.
- The accountability of the executive in these areas is better secured through the electorate at a general than through the courts.
- Secondly, these areas are where the executive is deemed to have greater technical knowledge and expertise than the judiciary.
- One consequence of the court’s refusal to review the exercise of prerogative powers in certain areas is that it leaves some of the executive’s powers effectively beyond the srutiny of both the legislature and the judiciary.
- Some of the areas that the courts deem to be non-justiciable (particularly matters of defence and national security) are the same ares in which Parliament’s ability to hold the executive to account is limited.

Question 33

What is the key statute that keeps the legislature and judiciary separate?

Answer 33

House of Commons (Disqualification) Act 1975 Under s1 of this Act, holders of judicial office are disqualified from membership of the House of Commons

Impact of convention - There is a constitutional convention that Members of Parliament will not make a criticism of a particular judge, a further convention that members of judiciary will not become involved in political activities.

Sub-judice rule - Under this rule, Parliament will refrain from discussing details of cases before the courts or waiting to come before the courts

Bill of Rights - This article guaranteed freedom of speech in Parliament by stating that Members of Parliament cannot be made subject to legal sanction by the courts for comments made in Parliament. Comments made by members of either House of Parliament are protected by ‘parliamentary privilege’. This means that Lords and MPs enjoy immunity from any criminal or civil proceedings arising out of any statements made by them within Parliament.

Question 34

What is the judiciary’s legislative function?

Answer 34

• In interpreting statute and developing the common law, the judiciary performs a legislative function
• E.g. judge made law - common law

NOTE. Parliamentary sovereignty - limitation of judiciary on the powers since judiciary takes precedence over the common law.

Question 35

What are the judicial powers in relation to primary legislation?

Answer 35

• The judiciary is unable to prevent Parliament from legislating in any given area.
• As a result of the UK having an unwritten constitution, the judiciary does not have the power to declare an Act of Parliament to be unconstitutional or to strike down such an Act.
• They have the power to suspend legislation that conflicts with retained EU law, unless Parliament explicity instructed them to give priority to the UK Act of Parliament
• Under s4 of HRA 1998 - courts have the power to declare that an Act of Parliament is incompatible with the CHR. Whilst this does not invalidate the relevant statute, it does impose enormous pressure on the Government to amend the offending piece of legislation
• House of Lords suggested that some of their lordships would be prepared to strike down legislation that infringed on the rule of law.

Question 36

What is the ‘politicisation of the judiciary’?

Answer 36

• Judiciary is meant to be neutral, however there have been concerns over the danger that the judiciary is at risk of becoming politicised.
• Implementation of the HRA 1998 and the incorporation of the ECHR into our legal system - courts have decided areas with a significant ‘political element’ particularly when the courts are attempting to balance civil liberties and the rights of the individual against the Government’s concern about national security and the ongoing terrorist threat.

Question 37

Can the King be liable in criminal or civil law and be arrested? Does it extend to any other members of his family?

Answer 37

The crown, meaning the Government used to have some immunities from the law, but these were restricted from the Crown Proceedings Act
- **Under the Act, King cannot be sued under Criminal law (not his family).
- Under s1, the Crown can be sued in contract
- Under s2, the Crown has liability in tort and has vicarious liability for the servants and agents

Enforcement against the crown
- Injunctions and specific performance could not be awarded against the Cown - this means the King personally
- Interim juncton can be ordered against the Secretary of State
- Members of armed forces could not sue for injuries sustained while on duty or on military premises but this immunity was suspended by the armed forces. It can be revived in times of war or national emergency
- The Crown is not bound by planning Acts of Parliament.

Question 38

The Home office is about to deport a person whom they believe is an illegal immigrant. Can their lawyers prevent the Home Office from doing this?

Answer 38

Yes. (M v Home Office).
If the claimant has a legal argument that they should be allowed to stay in the UK, the court can go further than just giving a judgement that this would be illegal. The court may issue an injunction ordering the Home Office not to deport, which the Home Office must obey.