Return to Tocqueville’s claim that because Parliament can modify the constitution at will, it “does not in reality exist.”
Almost two centuries on, the most recent entry in the historical table, the House of Lords (Hereditary Peers) Act 2026, tests that claim rather precisely.
Parliament altered the composition of one of its own chambers through an ordinary Act, requiring nothing more than the simple majorities used to pass any other piece of legislation, exactly the kind of self-modification Tocqueville treated as proof that no fixed constitution existed. In that narrow legal sense, his judgement still holds: there remains no codified, entrenched document that Parliament cannot touch.
Yet the picture is not quite as stark in practice as Tocqueville’s formal test suggests.
Major constitutional changes, such as the devolution settlements or the 2016 EU referendum, have generally been put to a referendum before being enacted, even though this is a political convention rather than a legal requirement, and the courts have begun treating some statutes, including the Human Rights Act 1998, as ‘constitutional statutes’ deserving a stronger form of judicial interpretation, following Thoburn v Sunderland City Council (2002).
Neither development amounts to entrenchment in the codified, US sense, and Parliament could in theory sweep both away with an ordinary Act. On balance, then, Tocqueville was right about the letter of the constitution, which remains unentrenched and could be rewritten by a simple parliamentary majority, but he understated how far convention and judicial practice have since built informal, if not legal, restraints around that formal power.
| Check your understanding 1. ‘The UK constitution is best understood not as a fixed restraint on Parliament, but as a set of practices Parliament chooses to follow.’ Evaluate this statement, using material from across this topic. You should: Use conventions and the unentrenched nature of the constitution as your main evidence for the statement, and parliamentary sovereignty/statute law as a counterpoint that some restraints go beyond mere practice, then give a reasoned final judgement. 2. Using at least two documents from the historical timeline and one source of the constitution, explain how the UK constitution has evolved without ever being formally codified. You should: Choose documents from different centuries to show the pattern is longstanding rather than recent, and be explicit about which of the five sources each document belongs to. 3. Do you agree with Tocqueville that an uncodified, unentrenched constitution effectively ‘does not… exist’? Justify your answer with reference to specific evidence from this topic. You could: Revisit the conclusion’s argument about convention and judicial practice softening the formal picture, and decide whether you find it convincing enough to disagree with Tocqueville’s strict view, or whether you side with him. |