In seeking to avoid politicisation of the case, Lady Hale had previously stressed that it was not about the merits of Brexit.
However, many will be unconvinced by this, not least when she stated that “This prolonged suspension of parliamentary democracy took place in quite exceptional circumstances: the fundamental change which was due to take place in the Constitution of the United Kingdom on 31st October. […] The effect upon the fundamentals of our democracy was extreme.”
The government will find it difficult to rebut accusations that behaved in an anti-democratic manner.
Referring to a memorandum from Nikki da Costa, the prime minister’s parliamentary advisor, Lady Hale stated that this “does not explain why it was necessary to bring parliamentary business to a halt for five weeks before that, when the normal period necessary to prepare for the Queen’s Speech is four to six days”.
The government had failed to provide any substantive justification for the need for a five-week prorogation.
Perhaps more than any other, this part of the judgment will restrict the government’s room for manoeuvre in future.
It makes a new prorogation covering the period over 19 October, when Boris Johnson could be required under the terms of the Benn Act to seek a further Article 50 extension, or over the 31 October Brexit deadline difficult to implement.
The judgment removes a key part of the government’s armoury in its strategy to by-pass a ‘Remainer’ parliament.