Earlier today, 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.