In the early years of devolution, Feldman described constitutional discourse in the UK as ‘a sea of conflicting visions’. More than a decade later, Brexit and now Covid-19 remind us again just how differently the UK is understood.
Throughout this crisis, many media outlets have displayed a marked inability to distinguish between English and devolved governance, resulting in much confusion. These tendencies, however, are not confined to the present circumstances.
In an article in Social and Legal Studies, we grapple with the complex patterns generated by the UK’s legal, political and media structures as they interacted in the Brexit context. We examine press coverage across the UK of four major court judgments which arose in the aftermath of the 2016 referendum and have shaped the UK’s constitutional politics. This post provides a summary of key findings and conclusions.
Media, constitutionalism and the UK
The media performs a powerful role in shaping constitutional discourses. They act as ‘gatekeepers’, deciding which political events are reported, the actors and decisions involved, and the sources chosen for comment. With these choices and the framing of events, the media actively shapes the political agenda for constitutional reform. More broadly, it can influence popular understandings of constitutional developments. The geographical focus of a publication can maintain or challenge dominant territorial public spheres, whether at state, sub-state or international levels. These, in turn, may affect the self-understandings and social solidarities which underpin a political union such as the UK’s.
The UK, however, is defined by asymmetries in its constitutional and media arrangements. Legislative devolution to Wales, Scotland and Northern Ireland (NI) contrasts with its absence in England. Scotland and NI have distinct legal jurisdictions, while Wales and England continue – ever more cumbersomely – within a shared jurisdiction.
Talk of the ‘British press’ is common, but where is it? Research has frequently shown the Anglo-centric tendencies of the major London outlets, wherein politics beyond Westminster are considered a ‘niche interest’ (a mindset all too apparent in coverage of the current crisis). Meanwhile, Scotland and NI have several indigenous publications, as well as their own editions of several London-based titles, with a stronger territorial focus. Wales has a much weaker media, though grassroots platforms are challenging this condition.
We interrogate these structures in the context of major court judgments which arose in the aftermath of the 2016 referendum and have shaped the constitutional politics of Brexit. They provide us with useful junctures at which to observe media engagement with constitutional issues.
Using quantitative content and thematic analyses, we examined the coverage of these judgments in newspapers in England (Daily Mail, Independent), Scotland (Herald, Scotsman), Northern Ireland (Belfast Telegraph, Irish News) and Wales (Western Mail, Daily Post).
Four critical moments in the Brexit process
The first case was Miller I, where the UK Supreme Court ruled on two sets of issues. On the ‘main issue’, it ruled that an Act of Parliament was required for the UK government to ‘trigger’ the process of leaving the EU. Second, it held that the principle of devolved legislative consent, or ‘Sewel Convention’, by which the UK parliament will not normally legislate in relation to devolved competences without the consent of the devolved legislatures, was non-justiciable.
The second judgment was Buick, where the High Court of Northern Ireland ruled that civil servants in NI did not have the power to take certain decisions in the absence of a minister (NI had been without devolved government since January 2017). Third, we looked at coverage of the Wightman judgment, where the CJEU ruled that the UK was free to unilaterally withdraw the notification of withdrawal from the EU and ‘cancel’ Brexit. Finally, we looked at coverage of the Continuity Bill judgment, where the UKSC held that legislation enacted by the Scottish Parliament to prepare for EU withdrawal mostly fell outside of its law-making competence as a result of subsequent changes to Scottish competences made by the UK government’s European Union (Withdrawal) Act 2018.
Coverage of judgments
First, we looked at overall volumes of coverage. Here we found notable territorial disparities. The Scottish and English publications accounted for the largest share of the coverage (56 and 55 reports, respectively) followed by the NI and Welsh outlets (40 and 18 reports). Figure 1 shows how this pattern was mirrored in news reports and opinion pieces.
Next, we examined the coverage of the judgments across the four territories. Here reporting varied dramatically. Miller was overwhelmingly the most reported decision (115 reports), accounting for more than two thirds of the articles sampled. It was followed by Wightman (27 reports), Buick (20 reports)and the Continuity Bill judgment (7 reports).
As shown in Figure 2, there were striking territorial divergences in the coverage of each case. Miller was the most extensively covered judgment across each territory, with the exception of NI. The English titles produced the most reports (42 reports) on the judgment, followed narrowly by the Scottish publications (38 reports). The NI and Welsh titles produced considerably fewer, with 19 and 16 reports, respectively.
Wightman was also covered in each place, but to a lesser extent than Miller. By contrast, Buick was only covered by the NI publications, where it also received roughly the same level of coverage as Miller (20 and 19 reports, respectively). Thus a constitutional event covered at the scale of the Miller ruling in NI went unnoticed elsewhere, at least by the publications sampled here. Similarly, the Continuity Bill judgment was only covered by the Scottish publications sampled, despite, like Miller, being a UKSC case.
Miller coverage: legal issues and constitutional principles mentioned
We also examined specific features of the Miller coverage. The publications differed considerably in terms of the legal issues covered. The ‘main issue’ appeared in three quarters (75%) of the Welsh articles, around two thirds (69%) of the English articles, and more than half of the articles in the Scottish (58%) and NI (53%) publications.
By contrast, the devolution dimension was covered in around three quarters of the Scottish reports (74%), two thirds (68%) of the NI reports, and half (50%) of the Welsh reports. Strikingly, only a quarter (26%) of the English reports mentioned this aspect of the case.
The constitutional principles at the heart of the judgment also had different levels of visibility. Here differences were most striking between the English and Scottish publications. In the former, parliamentary sovereignty appeared in around a quarter (26%) of the reports, while devolved legislative consent appeared in less than a tenth (7%). In the Scottish publications, parliamentary sovereignty appeared in under a fifth of the reports (16%), whereas devolved legislative consent appeared in half (50%). This perhaps reflects a more prominent place in Scottish political discourse in the aftermath of the 2014 referendum, as well as Scotland’s longer and more consistent history with the Sewel Convention since 1999.
Our thematic analysis of opinion pieces revealed very different conversations taking place. English commentary, focused on Miller, centred on the relationship between direct and representative democracy: between the political authority of the UK-wide referendum and the sovereignty of the Westminster parliament.
Meanwhile, the Scottish and, to a lesser extent, the NI and Welsh commentary, focused on the territorial implications of the Miller ruling on the Sewel Convention. In the Scottish papers, opinion was divided broadly between those who felt that the ruling had re-concentrated power at the UK level and those who argued that it had simply affirmed the well-established constitutional position based on the sovereignty of the Westminster parliament.
The NI commentary, focused above all on Buick, turned on the political stasis in the jurisdiction underlined by the ruling. Despite their different political leanings, commentary in the two NI titles was characterised by near unity of opinion: the governance vacuum had devastating social, political and economic consequences and could not go on.
At one level, our analysis underscores the uniqueness of Miller I in UK media reporting on constitutional law cases, generating coverage in all four places and more interest than the other three judgments combined.
More importantly, the analysis reveals striking territorial disparities in press coverage of such cases across the UK, manifesting in very different accounts of the territorial constitution.
Our analysis suggests that newspapers across the UK add a further layer of complexity to constitutional discourse, combining with institutional asymmetries to undermine the image of a single, unified polity.
The patterns observed here – and in particular the lack of engagement with devolution in English newspapers – have also been echoed loudly over recent months. We can only hope that the steep learning curves which have followed will have lasting consequences for media engagement with constitutional issues.
Gregory Davies and Dan Wincott, Cardiff University, Prifysgol Caerdydd
(Suggested citation: G. Davies and D. Wincott, ‘Brexit, the press and the territorial constitution’, U.K. Const. L. Blog (10th June 2020) (available at https://ukconstitutionallaw.org/))