Despite the UK Supreme Court managing to find unanimity regarding the legality of the attempted prorogation of parliament in  September, the rest of the country, including its national newspapers, appeared to divide along Leave/Remain lines regarding the correctness of the judgment. Sam Anderson and Robert Hazell analyse how the national press discussed the political and constitutional questions raised by the judgment.

The government’s resounding defeat in the Supreme Court is one example of the rolling constitutional drama that breaks in the news almost daily. However, when it comes to media coverage of these stories, the key consideration is almost always ‘What impact will this have on Brexit?’ Issues are reported through the Leave/Remain divide, with popular news outlets framing events for their audiences. This post seeks first to examine the extent to which this has occurred with the prorogation case by looking at eight national newspaper editorials, and the way they have framed the political implications of the judgment. Then, using the same editorials, we will examine whether there is consensus around important constitutional issues that have arisen in this case, such as the proper role of the Court and the importance of the independence of the judiciary. We coded the editorials on both these questions, and found that the case was framed by almost all the papers to some degree through a Brexit lens, and that there is a lack of consensus on the constitutional issues.  

The political questions

The first issue was coded on a scale of -5 to five. Zero reflects the position of the Court: that the judgment concerned the specific prorogation issue, but was neutral with regards to the political implications of the decision. Editorials which argued the judgment would have negative political implications for the government and the Brexit process were assigned a negative number up to -5, depending on the extent they engaged in direct criticism of the judgment, and promoted the government’s policy of getting Brexit done. Editorials that argued that the judgment would have positive political implications for the government and Brexit process were assigned a positive number up to five, depending on the extent to which they were directly critical of the government and its Brexit policies. All eight articles were independently coded by two researchers. Where discrepancies occurred, a mid-point was taken. 

Looking qualitatively, there were three overarching positions taken. Of the eight publications, four were critical of the judgment and its  potential political implications. The Sun described the Prime Minister as the victim of a ‘staggering legal coup’ and accused the Court of having done the bidding of Remainers. The Daily Mail was less virulent, but still argued the case was a victory for Remainers, and emphasised how the judgment allowed MPs (including ‘masochistically intransigent Eurosceptic zealots’) to continue to try and block the will of the electorate. The Daily Express was less direct but warned politicians that the case should not be used as a way to try to avoid Brexit. The Daily Telegraph made the only substantive comments on the case, noting pointedly that the Supreme Court overruled the High Court’s finding of non-justiciability, and gave some explanation for the prorogation: the government had only been ‘trying to carry out the democratic will’ of the people as expressed in the referendum. 

Three papers published editorials that were also political in their content, but explicitly opposed the government. The Financial Times claimed that the Supreme Court had, at barely ten years old, ‘struck a blow for liberal democracy’, and that the ruling marked a historic moment in the evolution of the UK constitution. The court’s decision, it argued, restored parliament’s ability to ensure the outcome of the referendum is respected, but ‘no deal’ is avoided. The Independent suggested that the Prime Minister should ‘consider his position’, and wrote that the only thing counting against him resigning now is the timing, so close to the Brexit deadline. The Guardian was considerably more forthright. It accused the Prime Minister of not complying with the Cabinet Manual by drawing the Queen into party politics, writing that he had ‘no honour and no shame’ It was repeatedly critical of a hard Brexit/no deal, and argued that Brexiteers have been toying ‘with underhand political devices’ and chasing hard Brexit at the expense of long-held principles. 

Finally, the Times’ editorial was dominated by substantive comment on the case, with only a minor focus on the prospects of ‘no deal’ now being more likely to be averted and no personal criticism of the Prime Minister and the government made by the previous three editorials. 

The constitutional questions

Now we turn to the extent to which the eight editorials expressed a common understanding of fundamental principles of the constitution governing the role of the courts in the UK – the importance of an independent judiciary, and a concept of the separation of powers in which the courts have a legitimate scrutiny role at least over the government. It is worth noting that there was no political consensus around these questions after the judgment, so we did not expect there to be any in the editorials. 

In coding this issue, we started with zero as the role that was played by the Court in the case – holding the executive to account for what it deemed to be an unlawful act, in an undoubtedly assertive way. Therefore, where an editorial was supportive of that role, and more generally of the place of the Court within the UK constitution, it was given a value close to zero. The more critical a position the editorial took of the role played by the Court and the implications of the decision for the UK constitution, the larger the value it was given, up to a maximum of five.  

Coding showed that the response from the four newspapers which were critical of the impact on Brexit included veiled or openly political attacks on the Supreme Court. The Sun went furthest – it attacked the ‘unelected political entity’ that the judges became through this case, accusing them of ‘granting themselves immense power to overrule our Government and the Queen.’  The Daily Express attacked ‘lawmakers’ who were failing to obey the instruction expressed in the referendum: the Supreme Court could well fall under this term. The Daily Telegraph stated that the ‘delicate balance of powers’ in the British constitution has now been tipped in favour of parliament and the courts, against the government. This shows that the settled understanding of the separation of powers is now up for debate, as will be seen below. The Daily Mail was more reticent, accepting the rule of law and the importance of judicial independence, notable given the notorious ‘Enemies of the People’ headline during the first Miller case. The editorial did raise the issue of the use of legal challenges instead of the political process by Remain or politicians favouring a soft Brexit, who do not have the political support to achieve their aims. 

The other four papers celebrated the role of the courts. The Financial Times highlighted the case as a reminder that Britain is a ‘representative democracy underpinned by the rule of law’, and argued that the ruling shows if anything that the UK constitution is actually working. The Guardian argued that it is desirable for there to be some tension between judges and the executive, and criticised Brexiteers for chafing against the law limiting open-ended discretionary powers invested in the executive. The Times called complaints like those made by politicians as wide of the mark, noting the Court’s citation of precedent from 1611 to demonstrate that judicial supervision of executive power is long established. 

Conclusion

The charts above graphically demonstrates the divides that have been outlined above in the media coverage of the Supreme Court’s judgment in Miller 2/Cherry. It is no surprise that the issue of Brexit permeated the way most major newspapers covered the prorogation.  What is more worrying is the way it led some of them to question fundamental principles of our constitution and political system: the rule of law, independence of the judiciary, and separation of powers.  Newspaper editors used to understand that these are as important to any healthy democracy as the freedom of the press.  It is yet another piece of collateral damage from Brexit that these basic principles can no longer be taken for granted.

The authors would like to thank George Williams and Elspeth Nicholson for their assistance with research and earlier drafts of this post.

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About the authors 

Sam Anderson is a Research Assistant at the Constitution Unit.

Professor Robert Hazell was the first Director of the Constitution Unit, and closely involved with helping the Cabinet Office draft the Cabinet Manual. He is currently working on a comparative study of European monarchies, due to be published next year.