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c] The Supreme Court began a three-day emergency hearing to consider the appeals on 17 September 2019. The exceptional circumstances of the prorogation were also considered, in that it took place during a time of fundamental change to the UK constitution with the 31 st October exit day.

The High Court of England and Wales had held that the issue was non-justiciable and the Scottish Court at first instance (the Outer House) agreed with that view. The Court considered that it was entirely proper to consider this matter and that doing so would strengthen, not undermine, the separation of powers:“Indeed, by ensuring that the Government does not use the power of prorogation unlawfully with the effect of preventing Parliament from carrying out its proper functions, the court will be giving effect to the separation of powers.Due to the significance of the case, the maximum eleven of the twelve Supreme Court justices sat to hear the appeal, [28] with Lord Briggs not sitting to ensure an odd number of judges. The prorogation ceremony in Parliament took place in the early hours of 10 September 2019 amidst tense scenes in the House of Commons—its Speaker, John Bercow, described such a long prorogation as an "act of executive fiat"—and opposition boycotts of the ceremony in the House of Lords. The court allowed six interveners to make representations over the course of the hearing: Raymond McCord, whose case was not heard alongside Miller and Cherry; the Lord Advocate for Scotland, James Wolffe; the Counsel General for Wales, Jeremy Miles; former Prime Minister John Major; the Shadow Attorney General, Shami Chakrabarti; and The Public Law Project. As a result, the court was "bound to conclude" that the advice to prorogue was unlawful because it frustrated Parliament's constitutional functions.

In late July, the newly appointed Leader of the House of Commons, Jacob Rees-Mogg, said the government viewed prorogation for political purposes as an "archaic mechanism" which would not be used. Boris Johnson is planning radical changes to the UK constitution – here are the ones you need to know about". From 17 September, over the course of three days, the Supreme Court heard the joint appeals from the judgments of the English Divisional Court and the Inner House of the Court of Sessions in Scotland and a number of interveners. Eadie was also questioned why there was no signed witness statement that testified to the reasons for prorogation. In evidence to the House of Lords Constitution Committee, Junade Ali—editor of A Federal Constitution for a Federal Britain —argued that as a result of the Fixed-term Parliaments Act 2011, the executive was unable to dissolve Parliament and thus resorted to prorogation.The litigants sought a ruling that prorogation to avoid parliamentary scrutiny would be unconstitutional and unlawful. After the 2017 general election, the government, led by Theresa May, announced that the first session of Parliament after the election would last until 2019—normally, parliamentary sessions last a year—to allow for greater parliamentary scrutiny of their Brexit plans.

Next, the scope of the prerogative power was analysed–by what standard was the lawfulness of the prorogation to be assessed? The court disagreed with the government's assertion that prorogation could not be questioned under the Bill of Rights 1689 as a "proceeding of Parliament"; it ruled that the opposite assertion—that prorogation is imposed upon and thus not debatable by Parliament, and brings parliamentary activity protected under the Bill of Rights to an end—was the correct interpretation of the law. The Court placed its analytical emphasis on effect/impact rather than improper motive and thus did not have to grapple with the thorny issue of bad faith. The Queen's Speech after the election also announced the government's intention to uphold their manifesto commitment to repeal the Fixed-term Parliaments Act.Australian Communist Party v Commonwealth (1951), a High Court of Australia case which held that a law forcefully dissolving the Communist Party of Australia violated the Constitution of Australia's provisions on the separation of powers.