Christopher Howarth is a senior researcher working in the House of Commons. Prior to this he worked for Open Europe, as a Conservative Foreign Affairs Adviser and senior researcher to a Shadow Europe Minister.
Henry VIII is not remembered for his love of Parliamentary democracy. His original ‘Henry VIII clause’ gave himself the power to legislate by decree. That, and a passion for extra-judicial executions, mark him out as a prime example of executive overreach. Henry VIII would no doubt be appalled by modern Parliamentary democracy.
He would also be perplexed that his name is now being attached to an arcane discussion surrounding the repeal and amendment of EU legislation. Not for him the checks and balances and Parliamentary oversight to be put in place by the Government. These make the power in the Great Repeal Bill unworthy of his name. He would no doubt have felt far more at home with the untrammelled power to rule by decree personified in S.2 of the European Communities Act 1972. Regulations with direct effect, bypassing Parliament, and directives that cannot be vetoed by Parliament, all brought in by secondary legislation: That would have been far more his style.
Henry VIII was a staunch but unprincipled Eurosceptic. A latecomer to the cause, he sought, in his early years, European titles, such as “Fidei Defensor” (Defender of the Faith), and indeed King of France. The power and wealth wielded by the Papacy was very attractive to him and he made great efforts to court its power. It was his failure, in the face the Holy Roman Emperor, to be able to use it to his own cause that made him change his mind.
Nor was he the first British Eurosceptic. Ever since the Romans declared Britain an “Alter Orbis” – ‘Another World’ beyond the ocean – there was a school of ecclesiastical thought that stated that Britain was an equal to the powers of Rome. King Athelstan, perhaps the greatest of English kings, even had himself declared “Emperor of the World of Britain” in 928, consciously putting himself on an equal footing with the Holy Roman and Byzantine Empires.
Henry, however, developed into a staunch champion of English sovereignty, becoming the first to categorically state that England owed no allegiance to any higher legal authority. He instigated the prototype Brexit, breaking with the Church in Rome and its associated legal, financial and political integration. To help him, he had his own Brexit Secretary, Thomas Cromwell, who had to deal with many of the same legal issues we are seeing today.
His Statute in Restraint of Appeals of 1532 dealt with the issue of the superiority of European Law, forbidding legal appeals to Rome – stating for all to know that “this realm of England is an empire, and so hath been accepted in the world, governed by one Supreme Head and king having the dignity and royal estate of the Imperial Crown of the same.” From which you may deduce his view of Parliamentary sovereignty was rather different than David Davis’s. Cromwell went on to put forward the original Henry VIII power: the Proclamation by the Crown Act 1539, by which the king was able to make law by decree.
The original Brexit also required a series of legal acts. The Church needed putting on a new footing, Bishops appointed and Monastic lands… well, privatised. Henry VIII was not a man for opposition, loyal or otherwise.
So what is the modern day Henry VIII power? The White Paper on the Great Repeal Bill sets out the need first to transpose EU legislation into UK law, but also the need to amend certain parts of them to ensure they work in the new UK context. For instance, where there is a reference to an EU agency, the UK equivalent will need to be asserted. This is not controversial, and given there are around 19,000 EU laws it would be impossible to have a separate Act of Parliament for each one. Henry VIII clauses are not new; they have their root in legislation and are overseen by Parliament.
It is therefore curious that one necessary part of the Great Repeal Bill – the power to correct or repeal EU legislation by secondary legislation (rather than by full act of Parliament) – should be singled out by opponents of Brexit as controversial, or be given Henry VIII’s name.
Henry was many things: a defender of English sovereignty, a tyrant, a Eurosceptic convert. He was interested in power – power and money for himself. The key difference between his Brexit and the current Brexit is that the current powers, sovereignty and finance being repatriated from the EU are going back to Parliament. Henry VIII would not have understood that. He would not have seen the EU’s powers to legislate without Parliament as in any way wrong. He would have coveted them for himself.