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A very British constitutional crisis: Henry VIII and "Brexit."

Nigel Morris-Co...

It might take a stretch of the imagination to join the UK's departure from the EU and the wife-murdering, perhaps syphilitic, definitely unstable, ferociously misogynistic Tudor monarch who is, arguably, the UK's most famous king. But there is a certain logic and the admirably named Lord Judge has applied his considerable legal knowledge and intellect to make that connection and to rightly harry those responsible for the poor legal drafting that plagues English law and, in particular, that relating to the not-admirably named "Brexit." At the heart of his concerns are a major constitutional issue now known as "Henry VIII powers." This month, Parliament is making much of that while debating Sanctions and Anti-Money Laundering Bill.

The similarities between Henry VIII and Brexit might not be immediately apparent but there is one core issue that conjoins these weird twins: the right to self-determination. This is the issue that many "leavers" highlighted and many "remainers" decided did not matter. In the case of Henry VIII, his particular interest was driven by personal desires: Britain (as it was then, it did not include Scotland and Ireland until 1801, which explains why the legal system speaks of England and Wales as a single entity) was officially a Catholic country. Henry was king from 1509 (when he was just 18 years old) to 1547. His rule is characterised by many great advances: he presided over the nascent Reformation and Renaissance. But he also oversaw the acceleration of concentration of wealth and privilege and, most importantly and most relevant to the current state, power in the hands of the monarch. He also, just so that he could swap out his wives with impunity because cutting off their heads was becoming a bit of an inconvenience, created the Church of England, threw out the papists, burned their monasteries, imprisoned their bishops and installed himself and his heirs as head of the Church, in a direct comparison to the Pope and in addition created the function of "Defender of the Faith" which, coupled with the Divine Right of Kings (an ancient premise that Catholicism undermines) gave him absolute power in relation to many aspects of life, including the ability to divorce.

This power-grab, where the King might take the counsel of his nobles but could make law by proclamation, is what Lord Judge calls in aid of his determination that Brexit law and regulation must be properly thought out and passed with due consideration and without an extension of the powers of ministers who, under the current form of government, stand in the place of Henry VIII. Lord Judge says, rightly, that no minister should be able to make any law or regulation unless there is a proper legal framework for so doing and that framework must include all the necessary checks and balances of proper government.

Once more, Lord Judge has put himself in the spot where everyone wants to concentrate their fire. The left like the idea that government can act unilaterally : after all, socialism and communism only function in a largely autocratic, arguably dictatorial environment. They are the antithesis of democracy. The right don't think that far ahead although if they did right wing extremists might like the idea of a dictator, so long as it was their dictator. The Brexit supporters think Judge is trying to frustrate the process but in fact he is making sure that the democracy that Brexiteers argued for and voted for is protected. Leavers think he's just arguing at the margins instead of trying to force a total rethink.

On the face of it, then, Lord Judge doesn't have a lot of friends or supporters. But, because England, in particular, is largely a population that is "middle" in almost every sense of the word, there are many who would, if what he's doing was properly explained, be standing behind him battling with those who would stab him in the back.

Constitutional academics and legal historians get it. The trendy name "Henry VIII powers" militates against ordinary people getting it for the simple reason that they are blinded by the image of a hugely rotund, extravagantly dressed man with his leg ulcers bandaged while he shouts (not that there is any actual evidence of this) "off with her head."

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