Miller and the media: Supreme Court judgement generates more measured response

img_4218In this post Ailsa McNeil presents the findings of an analysis of newspaper coverage of the High Court and Supreme Court rulings in the Article 50 case. It shows that whilst the High Court judges faced an onslaught of criticism from Brexit-supporting newspapers the reaction to the Supreme Court judgement was more measured. Two factors can explain this: the fact the prospect of parliament delaying the triggering of Article 50 appeared remote by the time the Supreme Court delivered their verdict and the widespread condemnation of some of the coverage of the High Court judgement.

The reaction from some newspapers to November’s High Court ruling provoked almost as much controversy as the decision itself. The judges, branded ‘Enemies of the people’ (Daily Mail, 4 Nov 2016), faced an onslaught of criticism, which knew no bounds. The attacks were personal, vicious and an affront to the rule of law. Although the coverage of the Supreme Court decision was less hostile, some newspapers continued to admonish the judiciary.

We analysed the editorials published on the day following the decisions, 4 November 2016 and 25 January 2017 respectively, in five broadsheets (The Guardian, The Independent, The Financial Times, The Daily Telegraph and The Times) and five tabloids (The Daily Mail, The Daily Mirror, The Sun, The Daily Star and The Daily Express). Where the publication lacked an opinion piece, we used the closest equivalent, usually written by the political editor.

For each, we considered several questions: whether the article was critical or supportive of the judgement; whether it condemned the judges, or if the commentary was likely to decrease trust in the judiciary. Finally, we asked if the editorial breached the Attorney General’s guidelines for contempt of court.

Of the editorials that were critical of the High Court ruling, two published articles that spoke about the judges in terms that we considered would decrease a readers trust in the judiciary. The Daily Mail was quick to question the independence of the ‘unelected’ High Court judges. The article made several statements which suggested the decision was not made impartially. This tone was echoed in the Daily Express. Explicit criticism of the courts, with judges being criticised as out of touch, or too lenient in their sentencing, is not unusual. However, the severity of the criticism this time was unprecedented, as was the outrage that the media coverage generated amongst defenders of judicial independence and the rule of law.

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The Lords’ declining reputation: The evidence

Meg-Russell

This week the House of Lords has been in the news for all the wrong reasons – with widespread criticism of David Cameron’s latest round of appointments, which have seen the already oversized chamber grow further still. Such negative stories have become common since Cameron became Prime Minister. Meg Russell reports on updated research about media representations of the Lords, and shows definitively the damaging effects that uncontrolled prime ministerial appointments have had on the chamber’s reputation since 2010.

This has been a disastrous news week for the Lords. David Cameron’s appointment of an additional 45 new peers has met with universal media condemnation. We have been told that the Lords is an ‘obese, obsolescent body’ (Telegraph) or an ‘upper house of sleaze and cronyism’ (Sunday Express), that ‘the bloated Upper House has become a laughing stock’ (Mail) or ‘a national embarrassment’ (Sunday Times), and that there is a need to ‘cut the bloated House of Lords down to size’ (FT). The Mirror greeted the appointments with the headline ‘Just when you thought the House of Lords couldn’t get worse’, while one columnist in the Guardian suggested that ‘the latest list of dissolution honours is so self-parodically venal that it resembles a dare’. An analysis of the week’s coverage by media-watcher Roy Greenslade concluded that ‘National newspapers of the left, right and centre were united in their disgust’. As an Observer commentator put it, ‘where is there left to go when Polly Toynbee of the Guardian and Quentin Letts in the Mail find themselves in perfect agreement?’

This is a deeply depressing situation. Such stories can only serve to drive down trust in the House of Lords, and thus more generally in parliament, and indeed probably in politics as a whole. The growing size of the chamber is already threatening its effectiveness. If the Lords is derided, and becomes ever less well respected, this too risks making it increasingly less capable of carrying out its important tasks of scrutinising legislation and holding the government to account.

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“In the absence of facts, myth rushes in”: Considering the consequences of a hung parliament in May 2015

juliet-wells-photo

On 15 April 2015, Professor Robert Hazell, Director of the Constitution Unit, and Peter Riddell, Director of the Institute for Government, spoke at a Constitution Unit seminar entitled ‘Coalition or Minority Government in May?’ Juliet Wells comments on the event.

With a fortnight remaining before polling day, and national polls steadfastly suggesting that neither of the two principal political parties will now succeed in achieving a ‘lift-off’ in popularity, the prospect of another hung parliament looms large. It is a possibility with which pre-election commentary has increasingly been preoccupied: as Jonathan Freedland has noted, ‘the focus is not on the parties so much as the likely ruling blocs’. Against this background, Robert Hazell and Peter Riddell’s seminar on government formation after May 7 shone a welcome light onto the processes by which the ultimate ‘ruling bloc’ might come to be.

From this perspective the utility of the seminar was threefold: first, it represented an opportunity to debunk some commonplace misunderstandings about the consequences, in practical and constitutional terms, of a hung parliament; second, it provided a comparative overview of experiences in forming minority and coalition governments, both within the UK and abroad, and highlighted in particular the likely differences between 2010 and 2015; and third, it touched upon the possible deeper implications for British democracy of yet another equivocal general election result.

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Farewell to the Commons: Reflections on parliamentary change over 40 years

Sam-Sharp-150x150

On 4 March Jack Straw and Sir George Young spoke at a Constitution Unit valedictory event where they considered how parliament has changed since the 1970s. Sam Sharp offers an overview of the discussion.

Jack Straw and Sir George Young have 77 years of parliamentary experience between them – Straw was first elected in 1979, and Young in 1974. With both set to retire in May, they reflected on how parliament has changed since they joined in the seventies. The event was chaired by Tony Wright, while Meg Russell provided a ‘myth busting’ role. Both speakers described a parliament that has changed for the better, in both its culture and efficiency.

For Jack Straw one of the biggest changes has been in the atmosphere of the House of Commons. He remembered previously having to ‘swim through thick clouds of smoke’, with the chamber itself being the only complete escape. Alcohol abuse was also prevalent and Tony Wright recalled actually once carrying a passed out member through the division lobby. In general, parliament was very white and male with a Gentleman’s Club culture and the few women present were very much made to feel like outsiders. Straw argued that the change in the gender balance, although ‘not far enough’, has ‘actually changed how the House feels’.

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Regulating the Press: A comparative study of international press councils

In searching for a solution to the problem of press regulation, the Leveson Inquiry is going to have to look at the comparative constitutional design of Press Councils.  A new report by the Reuters Institute for the Study of Journalism contains a detailed study of six Press Councils, in Sweden, Germany, Finland, Denmark, Ireland and Australia.  It looks at their origins, budgets and funding, governance structures, membership and independence, from the industry and from the state.  In his questioning Lord Justice Leveson has already expressed interest in the Irish model, which challenges the long held view in the British press that statutory regulation inevitably involves a less independent Press Council.

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At the heel of the hunt, the Tory hue and cry on human rights needs to die down

The Prime Minister is “physically sick” at the prospect of any prisoners winning the vote because of a ruling by the European Court of Human Rights. He and the Home Secretary Theresa May are “appalled” by the Supreme Court’s ruling that to deny people placed on the sex offenders’ register for life a right of appeal is contrary to human rights. Is this appropriate language for one pillar of the constitution to use about another? Even more to the point, does this so-called “firestorm” over two HR rows presage a Cameron-led assault not only on the ECHR but on the human rights plank of the constitution upheld by judges?

The suspicion must be raised that campaigns against the ECHR waged down the years by tabloids like the Sun and Daily Mail have affected the tone of debate and have emboldened the Conservative Right. Conservative ministers like Lord Chancellor Clarke and Attorney General Grieve have on the whole chosen to keep their heads down rather than boldly correct the grossly distorted visions of wholesale removals from the sex offenders’ register or mass vote -ins by prisoners. On the other hand the commission now being expedited jointly by Ken Clarke and Nick Clegg to examine a British Bill of Rights is unlikely to satisfy the objectors to “ interference by unelected judges.” A separate Tory review may take a different view.

On these issues the Times is leading the hue and cry. On Thursday in a double-page spread the paper reported that a  Tory policy review will examine whether the party can back withdrawing from the (European) Court after the next election, recognising that such a move earlier would be vetoed by the Lib Dems.

Today the Times eagerly spun  “leaked documents” showing that

Britain would face no serious sanction if it ignores the Strasbourg court’s diktats.   The papers, prepared for Deputy Prime Minister Nick Clegg, reveal that the UK would face only ‘political rather than judicial pressure’ if it took a stand against the unelected Euro-judges.

However it went on to quote the documents, adding:

Britain would open itself up to charges of hypocrisy since it has consistently criticised Turkey for failing to pay compensation awarded by Strasbourg.

If the Government made a “genuine attempt” to introduce legislation to allow prisoners to vote, but this was then defeated in the Commons, it could be enough to “persuade Strasbourg that the UK has done its best” and could reasonably expect to avoid any further sanction.

If Britain left the convention it could risk the country’s membership of the European Union. “Both the Council of Europe and the EU require member states to adhere to their value, including respect for human rights. Ultimately, whether to expel the UK from either would be a political decision, but the UK would clearly lay itself open to expulsion by withdrawing from the ECHR,” the note concludes.

While there are real issues in contention, the controversy smacks of internal Conservative politics, throwing the Right a bone to pick and a blue line to draw to differentiate them from the their coalition partners. As the Times acknowledges, the party itself is “ hopelessly split” on the HR issue. However an outcome in favour of ” human rights plus”  must be less certain than it was just after the general election. It would help, to moderate the language and offer dispassionate accounts of current controversies and exactly what are the powers and influence of the European Court.

Adds Saturday 19 Feb.  The media appetite for the topic may be slaked by what the Mail calls this ” common sense” judgement in the High Court – for the time being.

Extract from Daily Mail article:

It is a momentous development but Britain’s courts and Parliament – at long last – could be on the verge of restoring this country’s sovereignty over the unelected judges of Strasbourg.

First, following a campaign by this paper, ( my italics)  MPs voted overwhelmingly to reject the European Court’s human rights ruling that prisoners must be given the vote.

Now, in an outbreak of common sense, the High Court in London has refused compensation claims brought by 588 convicts barred from taking part in last year’s general election, and ordered each of them to pay £76 in costs – equivalent to two months of prison wages.

Supreme Court TV doc is curtain raiser for our inquiry into judicial independence and accountability

The genre of  television documentary and the judiciary both broke new ground in The Highest Court in the Land, a portrait of the new Supreme Court aired last Thursday on BBC4 and available here or direct on BBC iPlayer for the next few days. The breakthrough came in the willingness of the justices to discuss real cases. The tasters were glimpses of their personal and domestic life. We had fetching sequences of the Court President Lord Phillips in Day-Glo stretch Lycra cycling to work through the London traffic at 6 a..m., Lord Hope as a solitary shopper in Sainsbury’s, Lord Kerr smearing Marmite on toast for his wife’s breakfast tray (“I dislike Marmite myself”, he confided)  and Lady Hale at the chopping board (“my husband usually does the main course”, declared this champion of equality).

In Phillip’s words, it was all in the interest of presenting our topmost judges as ” ordinary people leading ordinary lives.” Or – he might have added but didn’t – at least as ordinary as gliding from Oxbridge to the bar, and finally reaching the highest bench in the land can be.

Sexism and inequality remain live even politely tense issues. In the Radmacher- Granatino divorce ruling last year for instance, Lady Hale the sole woman member of the court  was the only dissenter on the nine- member panel which reached a majority 8-1 decision in favour of the legal status of prenuptial agreements.  Hale insisted that prenups ” work against women, usually the less powerful party” and differed  from her male colleagues over whether the  line-up of justices  was purely a coincidence.  On gender balance in the court’s make up, she said:  “There comes a time when it becomes embarrassing not to have a woman….One of the things it does is to become harder  (for the men members)  to express sexist views. I wouldn’t like to accuse any of them of being sexist in my absence – but I don’t know, I’m not there.”

Dealing with gender balance on such a sticky wicket, Phillips blocked  gamely, if not altogether satisfactorily: ” Ideally I would like six men and six women, but a lot of woman drop out before they can reach the judiciary. It is not easy to combine this with raising a family

Lawyers are hardly unique there.

As over the prenup ruling, the justices’ willingness to discuss some of the high profile and controversial cases before them was welcome and quite revealing. The court came in for stick when it ruled against allowing  the Office of Fair Trading  to look into unpopular bank overdraft charges. Said Phillips: “Personally I would be quite in favour of the OFT looking into bank charges, but we have to look at the statute.”

Are majority decisions entirely satisfactory when a different combination of justices could reach a different conclusion? “There is no perfect answer. No judge is omnipotent, but everyone is doing their very best.”

The biggest bone of contention dating back to the law Lords remains the barely suppressed struggle between government and courts over counter terrorism and human rights. “Horrific ” is Phillip’s description of the original post 9/11 indefinite lock up of 17 foreign suspects without charge or notification. Control orders were little better. For 16, hours, 18 hours a day? “How long is a piece of string?” Last year, the government lost the legal battle over control orders, compelling the modifications announced this week.

The big question is, should an unelected court tell the elected government what to do?

Lord Phillips is confident in his answer.  Independently appointed judges are the best people to decide whether the government is abiding by the binding principles it has signed up to. On national security and human rights: “By applying the Human Rights Convention we are complying with the wishes of Parliament. Government won’t tear human rights up because it appreciates fundamental human rights.”

And there the matter rests- for the moment.

The Constitution Unit has just begun a three-year rolling research project into judicial independence and accountability. To mark the launch Lord Phillips gives a Constitution Unit lecture on the theme Judicial Independence & Accountability: A View from the Supreme Court. on Tuesday 8th February at 6.00pm in the Gustave Tuck Lecture Theatre, Wilkins Building, University College London.

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