In 1533-4, Henry VIII rejected the Pope’s authority and broke away from the Church of Rome, declaring himself Supreme Head of the Church in England. This country thus detached itself from a large supra-national institution that had exercised a powerful influence over its affairs, and the move proved extremely controversial. It was a decisive moment, it inspired passionate feelings both for and against, and it was to have profound implications for many years thereafter. Does this scenario sound familiar? Well, there were some strong analogies between Brexit and Henry’s break with Rome; and constitutionally there is an interesting connection between the two.
The break with Rome was accomplished by two acts of Parliament: the Act of Appeals (1533) and the Act of Supremacy (1534). The preamble to the former stated that ‘this realm of England is an empire…, governed by one supreme head and king’, who was endowed with ‘plenary, whole and entire power, … without restraint or provocation to any foreign princes or potentates of the world’. In other words, England was a sovereign entity over which ‘foreign princes or potentates’ had no jurisdiction. No English subject could therefore appeal to the external authority of the Pope. This was underlined the following year in the Act of Supremacy, which recognised Henry as ‘the only supreme head on earth of the Church of England’.
It is important to note that the break from the Church of Rome was not imposed by royal fiat. However much we might associate the image of Henry VIII with bombastic self-assertion, the crucial steps were implemented not by royal proclamation but by acts of Parliament. Like all such acts – or statutes as they are often called – they had to receive the assent of the House of Lords and the House of Commons as well as the monarch in order to be valid. The reign of Henry VIII demonstrated a principle that was to be of the utmost significance for English constitutional history thereafter: acts of Parliament were the highest form of human positive law in this country and their scope and powers were effectively unlimited.
Henry VIII’s reign showed more clearly than ever before the huge potential powers of statutes. During his reign, England broke with Rome; the country’s religious life was reformed; the monasteries were dissolved; England and Wales were united; and – because of Henry’s complicated marital life – the line of succession was rearranged no fewer than three times. All these measures were implemented by acts of Parliament, harnessing powers that many of Henry’s contemporary monarchs in continental Europe would have envied.
In short, Henry VIII – he of the famous Holbein portraits – was actually far more powerful when ruling with the two Houses of Parliament than when working alone. The authority of King-in-Parliament was greater than that of the King on his own; and Henry was shrewd enough to realise this. In 1542, he told the assembled members of the Lords and Commons: ‘We at no time stand so highly in our estate royal, as in the time of Parliament, wherein we as head, and you as members, are conjoined and knit together into one body politic.’ Together, there was nothing that Crown and Parliament could not do. They could even pass a judicial death sentence, known as an act of attainder, that could bypass normal common law methods of trial, like a jury and the hearing of witnesses under oath, and convict an individual of treason and send them to their death without any right of appeal.
Wise monarchs understood that if they worked with Parliaments their combined authority was effectively unlimited, and it is striking that the most successful of Henry’s successors were generally those who appreciated that fact. In 1616, James I noted admiringly that ‘an Act of Parliament can do greater wonders: and that old wise man the Treasurer Burghley was wont to say, he knew not what an Act of Parliament could not do in England.’ By contrast, James’s son, Charles I, fell foul of Parliaments and ended up losing a civil war, his crown, and his head.
It is at this point that we return to Brexit. For the principle of the supremacy and omnicompetence of statute became hardwired into English constitutional thinking in the decades and centuries after Henry VIII’s reign. Over time, many of the monarch’s powers became devolved onto the Prime Minister; and other parts of what is now the United Kingdom gained representation at Westminster, such as Scotland since 1707. But the underlying principle of the sovereignty of statute remained in place – unchallengeable and unrepealable except by another statute, and not accountable to any external source of authority – until 1992.
Only then, with the Maastricht Treaty, was the sovereignty of statute superseded by the authority of European laws and European Courts such as the Court of Justice and the Court of Human Rights. No wonder that the full implications of this change took some time to sink in; and no wonder that it ultimately caused profound divisions of opinion in the early twenty-first century. Was it time to move on and embrace the brave new world of the authority of the European Union; or was it time to leave that Union and return to the sovereignty of statutes passed at Westminster and signed into law by the monarch? In a way, this was reminiscent of the dilemma that confronted the subjects of Henry VIII. For in the 1530s, they faced an analogous challenge: was it time to leave the Church of Rome and accept the sovereign authority of the King and his Parliament?
When the historian A.J.P. Taylor was once asked whether historians were better placed than other people to predict the future, he replied: ‘No, they have enough difficulty predicting the past’. So I shall refrain from suggesting where events might move from here. But what the story of that earlier sixteenth-century Brexit does suggest is that such a decisive moment is likely to have profound consequences, the full implications of which will take many years to become apparent.
