On September 24, 2019, the UK’s Supreme Court handed down its judgment in relation to two separate ‎appeals following Prime Minister Johnson’s decision to prorogue Parliament earlier this month. ‎The Supreme Court unanimously found that the lawfulness of the Prime Minister’s advice to the ‎Queen is justiciable and that the courts exercise a supervisory jurisdiction over the lawfulness of ‎acts of Government. The parties to the appeals had agreed that the courts have jurisdiction to ‎decide upon the existence and limits of a prerogative power and the Supreme Court found that ‎the appeals in front of it are about those limits.‎

The Supreme Court went on to set out that a decision to prorogue (or advise the Queen to ‎prorogue) will be unlawful if the ‎prorogation has the effect of frustrating or preventing, without ‎reasonable justification, the ability ‎of Parliament to carry out its constitutional functions as a ‎legislature and as the body responsible ‎for the supervision of the executive. In the case of the ‎appeals before the Supreme Court, the Court held that the decision to advise the Queen to ‎prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ‎ability of Parliament to carry out its constitutional functions without reasonable justification.‎

The immediate consequence of this judgment is that the Prime Minister’s advice to the Queen ‎was unlawful, ‎void and of no effect. This means that the Order in Council to which it led was ‎also unlawful, ‎void and of no effect and should be quashed, which means that the ‎prorogation ‎was also void and of no effect. The Speaker of House, John Bercow, has already scheduled ‎the House of Commons to re-commence sitting again from 11.30 am tomorrow.‎

However, it is far from clear politically what will happen next and we will continue to monitor ‎developments. Our present view is that it is unlikely that the EU will agree to a revised exit ‎agreement with the UK and as such it is more likely that a General Election is the most probable ‎outcome, but only after an extension has been agreed with the EU to postpone Brexit until ‎January 2020.‎

A summary of the judgment can be found here and the full judgment can be found here.‎