Brexit, the Press and the Territorial Constitution
| Author | Daniel Wincott,Gregory Davies |
| Date | 01 April 2021 |
| DOI | 10.1177/0964663920921922 |
| Published date | 01 April 2021 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2021, Vol. 30(2) 157–179
Brexit, the Press and the
ª The Author(s) 2020
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Territorial Constitution
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DOI: 10.1177/0964663920921922
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Gregory Davies
and Daniel Wincott
Cardiff University, UK
Abstract
Brexit has unveiled previously hidden aspects of United Kingdom (UK) society, law and
politics. It provides a valuable opportunity to investigate the social reception of law, and
in particular the mediation of the law and constitution in the press. The distinctive
constitutional arrangements and histories of Wales, Scotland, Northern Ireland and
England have given rise to different territorial interpretations of the UK state. These
asymmetries have parallels in the UK’s territorial media landscape, yet we have little
understanding of how this landscape contributes to constitutional discourses. This
article offers quantitative content and thematic analysis of UK-wide media coverage of
major court judgments which have served as critical junctures in the Brexit process. The
analysis reveals striking territorial variation in the volume and substance of coverage.
Here, the media appears to reinforce divergent understandings of the constitution: while
English reporting chimed with a more unitary account of the constitution, reporting
elsewhere was more consistent with a vision of the UK as union-state. In the light of
these findings, we argue that media analysis can make a valuable contribution to our
understanding of the law and the constitution.
Keywords
Brexit, constitution, courts, media, public law
. . . England and its constitution are islands of visions. When one widens the angle to look at
the constitution of the United Kingdom, rather than just of England, we encounter a sea of
conflicting visions. The constitution . . . is very hard to pin down.
Feldman (2005: 331, original emphasis)
Corresponding author:
Gregory Davies, Wales Governance Centre, School of Law and Politics, Cardiff University, Law Building,
Museum Ave Cardiff, CF10 3AX, UK.
Email: daviesgj6@cardiff.ac.uk
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Social & Legal Studies 30(2)
Introduction
Whether it distinguishes law sharply from politics and society, or blends legal, political
and social elements, no constitutional theory can wholly avoid taking a position on how
law relates to politics and society. Constitutional analyses may take a material approach
or adopt more mystical perspectives. The former include analyses in a self-styled ‘pure
legal’ mode, albeit those which range beyond the formalities of a particular constitu-
tional text to include a range of constitutional practices (Arato, 2012). By contrast, those
who detect a mystical quality to a constitution treat it as embodying the imagined social
essence of the polity it constitutes (Kahn, 2010).
Whatever their other differences, we argue that those working in these theoretical
traditions tend to share a common, flawed assumption about the character of nation
states: namely, an equivalence between nations and states. In effect they take it for
granted that the nation state is the natural scale at which law, politics and society
operate. This assumption is not limited to constitutional or legal scholarship – its
influence is pervasive across the social sciences. It can operate at a precognitive level
and in ways that structure important bodies of evidence used by researchers (such as
the data sets constructed for surveys of social and political attitudes). Although it is
hidden beneath a wide range of social and legal research, the generally occluded
assumption that the nation state is the natural scale for social and political life has
not evaded notice or critique.
A substantial literature in social and political theory has explored the character and
limitations of ‘methodological nationalism’ (e.g. Chernilo, 2007; Jeffery and Wincott,
2010). Methodological nationalism implies a normative privileging of states as the
political vessels justified in terms of some nation. For us, the particular value of the
critique is in the empirical questions it begs. These questions arise when we stop assum-
ing that the nation state as the scale at which important social and political life takes
place, or that states, nations and ‘domestic’ jurisdictions generally share a single space
defined by the same boundaries.
In this article, we examine these themes in the context of the constitutional arrange-
ment of the United Kingdom (UK). We interrogate the complex territorial patterns
generated by its legal and political systems and media structure, specifically in
response to critical judicial decisions arising in the aftermath of the 2016 majority
referendum vote (52%–48%) for the UK to leave the European Union (EU). The
referendum and its aftermath – ‘Brexit’ – have unveiled previously hidden or poorly
understood aspects of UK society, law and politics. It thus provides us with an oppor-
tunity to investigate aspects of the social reception of law, albeit in a particular and
perhaps unusual context. We do so by attending to the mediation of legal and consti-
tutional aspects of Brexit in the press.
The referendum triggered a period of febrile politics, during which the UK’s consti-
tutional arrangements often appeared markedly unsettled. During this period, attention
came to be focused on the multinational and multi-jurisdictional character of the UK
state. Shortly before calling the Brexit referendum, David Cameron, UK Prime Minster
(2010–2016), had talked of ‘our ancient democracy’ (BBC News, 2014), invoking a
mythical vision (or social imaginary (Kahn, 2010)) of venerable constitutional unity. In
Davies and Wincott
159
fact the UK has existed with its current territorial boundaries for less than a century. As
well as the UK government (UKG) and Westminster parliament, for most of this period,
there has been a substate government and legislature in at least one of the UK’s con-
stituent territories: in Northern Ireland (NI) until 1972 and in Scotland and Wales since
1999 as well as intermittently in NI from the same date. Today, England is alone in
having no national representative institutions of its own.
It has become a commonplace to describe the UK as being made up of four nations:
England, Scotland, Wales and NI. Most residents in Britain have some attachment to
British identity as well as to (at least one) substate national identity: English, Scottish,
Welsh. Whether NI is properly described as a nation is open to question; ‘nationalists’
and ‘unionists’ identify with Ireland and Britain, respectively, while a significant section
of the population choose to not identify with either. Perhaps significantly, the name of
the state – the UK – has not generated a label for a statewide identity: generally we do not
talk of ‘UKanians’ (Nairn, 1988).
Adding further to this complexity, the UK is also made up of three territorial legal
jurisdictions. The 1707 terms of union between Scotland and England explicitly pre-
served the pre-existing legal jurisdictions on both sides of the border, which still exist
today. If labelling it as a nation is problematic, since its creation in 1921 NI has always
been a distinct legal jurisdiction. However, although they are distinct nations and, since
1999 Wales has had devolved political institutions, England and Wales are a single
territorial legal jurisdiction. The three jurisdictions, however, are not in a hierarchical
relation with one another – they are all on the same normative level. Arguably, the UK
Supreme Court (UKSC) is the only judicial institution which sits above the three terri-
torial legal jurisdictions (discounting Scots criminal law).
Particularly since 1999, references to the UK ‘territorial constitution’ have thus
become more widespread. This concept helps to frame discussion of the character and
significance of the devolved institutions, relationships between the UK’s governments
and parliaments, while also touching on questions of multiple national identities and the
plural legal jurisdictions.
The UK’s territorial constitution is coloured by distinct political interpretations of its
form and contents. It is viewed simultaneously as a unitary state, predicated on the
sovereignty of the Westminster parliament, and as a union-state, or ‘state of nations’,
dependent on the consent of the constituent territories and their institutions (Douglas-
Scott, 2016).
The role of the media in maintaining these understandings is less clear. Well before
Brexit, some researchers had noted the critical, though perhaps, underappreciated role,
played by the media in how legal and constitutional events are understood. Media
organisations act as ‘gatekeepers’: they decide which events are reported, to what extent,
the prominence given to the decisions involved and the particular issues which they
raise, and the sources selected for comment (Sauvageau et al., 2006: 8). Particular actors,
decisions or moments may be presented as more important than others, thereby creating
‘a context in which change in public opinion is more likely’ (Haider-Markel et al., 2006:
66). The press thus shape as well as publicise the political agenda for legal and consti-
tutional reform: they are ‘sculptors, and not just reporters, of the public mood’ (O’Brien,
2017: 144). The success of the Eurosceptic elements of the London-based press in
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Social & Legal Studies 30(2)
promoting the UK’s relationship with Europe as a matter of the highest constitutional
import is a stark example of this potential...
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