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Boris Johnson's advice unlawful: The decision summarised

26 September 2019

The Supreme Court of the United Kingdom this week ruled that Prime Minister Boris Johnson’s advice to the Queen to prorogue parliament for five weeks was unlawful.

The advice came during what many would consider the height of the Brexit crisis.

This is how the Supreme Court decision (read the full decision here) unfolded which legal writer, Tracey Cormack has summarised.

The Supreme Court consisting of 11 Justices issued a unanimous decision - On the first issue of whether the lawfulness of the Prime Minister’s advice to the Queen was justiciable, the SC held that it is – While some powers are not amenable to judicial review, there is no doubt that the courts have jurisdiction to decide upon the existence and limits of a prerogative power – The second issue is what are the limits to that power – The SC held that a decision 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 – The third question is whether this prorogation did have the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification – This prolonged suspension took place in quite exceptional circumstances; when the fundamental change in the Constitution of the UK was due on 31 October 2019 – Parliament, the House of Commons has a right to voice how that change comes about – The effects on the fundamentals of UK democracy was extreme and the decision taken to prorogue was therefore unlawful – The fourth issue was what was the effect of that finding and what remedies should the SC grant – The Prime Minister’s advice to the Queen was unlawful, void and of no effect – The Order in Council to which it led was also unlawful and of no effect and should be quashed – The prorogation was void and of no effect – Parliament has not been prorogued.

Last updated on the 30th September 2019