Who says there is a constitution and by what authority? We can rephrase the question and ask “why does anyone believe Britain has a constitution? What are the sources of certainty?”
A good place to start is the Institute of Government/Bennet Institute report Constitutional Guardians which argues that a “complex ecosystems of institutions…oversee, monitor and uphold different parts of the constitution and collectively protect the democratic integrity of the governance of the UK.” They divide their overseeing guardians into “core”, “auxiliary” and “tertiary”. These “guardians” legitimise each other; and the state is the only legitimiser of itself.
Most knowledge about the constitution comes from organisations that have every incentive not to question their own raison d’etre: the Royal Family (Royal Family), the Cabinet Office (2011) and Parliament (PACAC).
The reasoning of these organisations is, in turn, interpreted to ordinary citizens by “constitutional experts” who claim to offer objective knowledge but in reality are for the most part insiders not detached observers. Three of the ten foremost living authorities on the constitution sit in the House of Lords; a third is a knight; a fourth a privy councillor; a fifth, an avowed royalist; and a sixth and seventh parliamentary advisers. Such dignitaries can hardly offer an impartial perspective.
Dead constitutional experts are also referenced for validation, notably Anthony King’s 6 canonical authors, even though three of them lived before the introduction of democracy and therefore offer anachronistic opinions.
One name always comes up in discussions about the constitution, Walter Bagehot, an eminent Victorian who was anything but objective. Today’s constitutional authorities are divided on how to treat the work of Bagehot: does it still have value or is it long out of date? The answer has to be a bit of both. The unchanged smoke and mirrors of the monarchy means that there is still mileage in Bagehot’s distinction between the efficient and dignified aspects of the constitution. The “efficient” mechanisms have altered but the populace is still presented with pageantry to cover up what goes on behind the scenes.
If we really want to answer the question of whether or not there is a constitution, we must not rely on stakeholders and people who have built careers and reputations on writing about it as if it was beyond question. We must also consult writers and researchers who do not have an investment in it being a real thing..
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