In their moments of stress, constitutions need regular dabs of information. Disclosures by journalists helped to start impeachment proceedings in the Richard Nixon and Donald Trump presidencies in a country where the constitution expressly protects press freedom. Information brought to light in the media is no less important to the workings of the UK’s unwritten constitution. In this era of challenge to professional journalism, that contribution deserves notice.
Constitutions have formal players – in parliament, executive government and courts – with access to information that the public often lacks. Media disclosures, through leaks planned and unplanned, affect the players’ calculations, partly because a more informed public is better able to judge them.
Without the Observer’s detailed disclosure of prime minister Boris Johnson’s plan to prorogue parliament, would the opposition parties have prepared as successfully as they did to pass legislation aimed at compelling Johnson to delay Brexit in the event of no deal with the European Union by 19 October? Without the Sunday Times publishing details of the adverse impact of a no-deal Brexit, as assessed by the civil service in the Operation Yellowhammer papers, would parliament have known what to compel the government to release?
And when the minister Michael Gove made his initial offering, Hilary Benn MP was equipped to follow up in a letter to Gove (17 September): “I would be grateful if you could explain why the document we received is entitled ‘reasonable worst case scenario’ whereas it has been reported that a very similar if not identical version obtained by the Sunday Times was entitled ‘base scenario’. Could you set out and explain any differences between the two documents?”
On 2 September, when Tory party MPs were deciding whether to defy Johnson in crucial parliamentary votes over the coming few days, how many were influenced by this reporting in his most supportive newspaper: “… despite Mr Johnson’s claims progress is being made in the EU talks, the Daily Telegraph understands the government is to ask the EU to enter into talks about managing a no-deal Brexit … Multiple sources also claimed that Dominic Cummings, Mr Johnson’s top adviser, considered the EU negotiation process to be ‘a sham’”? Downing Street denied the report. In parliament, 21 Tory MPs rebelled.
After a court in England decided that it could not rule on the lawfulness of Johnson’s advice to the Queen to prorogue parliament, a Scottish court decided that it could rule, and found that the advice had had an improper purpose: to stymie parliamentary scrutiny of the government. The supreme court reviewed both decisions and found the prorogation unlawful because it had the effect, without reasonable justification, of frustrating or preventing the ability of parliament to carry out its constitutional functions. In such a situation, 11 justices said, the court will intervene if the effect is sufficiently serious.
In the mix in all three proceedings were official documents from which had been redacted Johnson’s handwritten assessment of one of his predecessors as prime minister, David Cameron, as a “girly swot”. The public learned this detail when Sky News reported it on 6 September, just as two of the court cases were being argued and decided.
Whether or not the judges formally received this document unredacted, they can be taken to consume some media. (The Scottish court referred to the leak in its judgment.) Johnson’s note is an insight into the thinking of the prime minister when making a decision of major constitutional significance. Like the public and MPs, the judges could mull this private insight as they listened to counsel for the government advocating for Johnson’s formal argument for prorogation.
More routine, but also valuable, is the straight reporting of proceedings in courts and parliament. Journalists are consistently providing news and analysis of the players’ doings at times of historic importance for the democracy everyone shares.
Any living constitution, written or unwritten, breathes partly through journalism.
• Paul Chadwick is the Guardian’s readers’ editor
