One of the UK's top QCs, expert in public law, has just indicated on social media, as Lord Pannick summarises on facts, law and remedy, that the UK Supreme Court will, in her view, accept the arguments of the claimants' (i.e Miller, Cherry et al).
A formidable spectrum of argument on behalf of the claimants, including from interveners, may have been helped, particularly, by Sir Edward Garnier (QC for Sir John Major) distinguishing prorogation as being justiciable ie amenable to judicial review.
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Constitutional musing.
It is usually considered completely foolhardy to try to second-guess how judges will decide any particular case.
So here goes:
Parliament couldn’t legislate to affect the prerogative as that would have required the Queen’s Consent to the Bill (Erskine May 9.6 & 30.79) which the government would have denied.
Largely on the facts as analyzed by the Inner House of the Court of Session, the Prime Minister's advice to Her Majesty will be declared to have been unlawful by all eleven justices.
The court will, by a significant majority, hold the prerogative of prorogation to be justiciable.
To do that they will distinguish prorogation from dissolution.
Dissolution will remain beyond the reach of judicial review though Lord Kerr may adopt an even bolder position indicating he believes dissolution should be justiciable too.
The Order in Council incorporating the prorogation instructions may be considered invalid by a tight majority. It's possible there are likely to be concurring opinions on the legal effect of the Order in Council with nuanced positions taken.
The remedy will reflect the court's support for parliamentary sovereignty that will underpin their approach and place the ability to open the doors of the Westminster Parliament in the hands of the Speakers of the Commons and Lords.
Parliament will be confirmed as master of its own procedure - the court will reiterate that parliamentary procedure is non-justiciable.
Scotland’s senior law officer, the Lord Advocate (James Wolffe QC), was part of a formidable legal ‘tag team’ who challenged the government’s decision in a spectrum of arguments during the court debate.
His significant contribution to the debate may not have been given quite the attention it deserves – possibly in part due to a troublesome microphone as he opened his argument and his unassuming style.
His arguments will be central to the court's decision.
If, as I am anticipating, the Prime Minister's advice is considered to be improper, his position will be precarious.
Any scope for involving Her Majesty will be carefully avoided by explicitly setting to one side any question of determining whether or not the prerogative of prorogation was personal to Her Majesty. The suggestion was that it was not as Her Majesty was bound to accept the Prime Minister’s advice – the court was told that this was confirmed on the government’s part by Jacob Rees Mogg in a radio interview.
“Jacob Rees-Mogg has said the Queen was "obliged" to approve Boris Johnson's decision to suspend Parliament.
The Leader of the House of Commons said there was no precedent for the monarch to refuse a request from her Prime Minister.
"This is a straightforward decision by the Prime Minister giving formal advice to the sovereign, which a constitutional monarch is obliged to follow," he told BBC Radio 4's Today programme on Thursday.”
https://inews.co.uk/news/politics/brexit/jacob-rees-mogg-prorogue-parliament-boris-johnson-the-queen-privy-council-494909
Parliament will reconvene on or around the 24th of September and events will become even more breath-taking.