Following in Henry VIII's Footsteps?

In the early 1530s Henry VIII had a considerable legal problem. Only the pope could grant him a divorce, but Clement VII was unwilling to do so. The case coincided with a widespread feeling in England, at least among proto-Protestants, that too many cases were being decided in Europe, which ought properly to be decided at home. The result was Thomas Cromwell’s 1533 Act in Restraint of Appeals, prohibiting all appeals to Rome.

If one were to take a ‘Eurosceptic’ view of the European Union (EU) and of the separate European Convention on Human Rights (ECHR) could a new Act in Restraint of Appeals achieve the objective of ‘repatriating powers’ from Europe?

What was the evil that the Act in Restraint of Appeals was designed to remedy? After the Norman Conquest two systems of law became established in England: the common law, which the judges gradually evolved from a mass of competing custom; and the canon law which was the law of the Church. There were two sets of courts and appeal from the Church courts lay to Rome. Men and women in holy orders were entitled to be judged according to the canon law, but this also governed the laity in relation to ‘spiritual’ matters, which included family law, wills and probate and a range of other matters. From 1066 to the middle of the 14th-century papal jurisdiction expanded inexorably. The Roman court heard ever more appeals and appointed large numbers of foreign-born clergy – bishops, abbots and even parish priests to a wide range of livings in England.

In the reign of Edward III (1327-77) a xenophobic Parliament enacted the Statutes of Provisors and Praemunire, which aimed to curb the excesses of papal interference; but essentially the two systems of law remained largely unchanged until the 1530s and the Papal curia remained at the apex of the machinery of justice so far as canon law was concerned. Henry VIII had to petition for his divorce in Rome, but he was just the most prominent of English litigants to take his case there.

The Act in Restraint of Appeals  was an assertion of parliamentary sovereignty because it was an Act of Parliament, rather than (for example) a royal proclamation. In terms of its subject matter, however, it asserted the sovereignty of the English Crown by declaring that England was an empire. As the preamble makes clear, the mischief it was directed at was foreign interference. A large number of appeals ‘had been sued out of this realm to the see of Rome, in causes testamentary, causes of matrimony and divorces, rights of tithes, etc’, causing ‘great vexation, trouble, costs and charges’ but also ‘to the great delay and let to the true and speedy determination of the said causes’. The multiplication of appeals to Rome also led to injustice because ‘the great distance of way is so far out of this realm, so that the necessary proofs nor the true knowledge of the cause can neither there be so well known nor the witnesses there so well examined as within this realm’.

In future all ‘spiritual’ cases, wherever they arose in the king’s dominions, should be determined ‘within the king’s jurisdiction and authority and not elsewhere’. The See of Rome should have no right to interfere, by way of ‘inhibitions, appeals, sentences, citations, suspensions, interdictions, excommunications, restraints or judgments’. The English courts should henceforth be supreme, for the clergy as well as for the laity, in spiritual matters as well as temporal.

It was foreseeable that the pope would try to subvert this legislation by placing England under an interdict (as he had done in the time of King John); but the act pre-empted this, providing that any priest who refused to perform the sacraments should be liable to a year’s imprisonment and a fine. Further, anyone who attempted to invoke the jurisdiction of the pope should be liable to the penalties provided for by the Statutes of Provisors and Praemunire, which meant confiscation of the offender’s property. Finally the act dealt with cases in the pipeline by clarifying that appeals lodged in Rome should now be dealt with by the Archbishops of Canterbury or York, as the case might be.

The Act in Restraint of Appeals worked. When Henry VIII’s daughter Mary became queen in 1553 she repealed her brother Edward VI’s ecclesiastical legislation, but not her father’s, and she remained Supreme Head of the Church. There were no more appeals to Rome from the Church courts in England.

Legally the British are now in a similar position with regard to the European Union and the European Convention on Human Rights as the English were in 1533 in relation to the papacy. In fact British sovereignty is now limited in two ways, not one, because there are two systems, based in Luxembourg and Strasbourg, which potentially override the machinery of justice in Britain. Although the UK helped to frame the convention and there are British judges in each of the two European courts, many feel that these are in some way ‘foreign’ and that they interfere in matters that should not concern them. Britain’s new Supreme Court is not actually ‘supreme’, since its judgments can be overruled (in practice, if not in theory) by the Court of Justice of the European Union (CJEU) in Luxembourg or by the European Court of Human Rights (ECtHR) in Strasbourg.

When the referendum of 1975 was held, the issue was not continued membership of the EU, because this did not exist at the time. The question was whether the UK should continue to be a member of the European Economic Community (EEC), or ‘Common Market’, as it was usually called. It is doubtful if many people fully appreciated the legal consequences of British membership; but it must have been clear to lawyers, or at least to specialists, that the EEC was more than just an economic entity. It was a ‘new legal order’; and by the European Communities Act, the EEC treaties, legislation and judgments of the CJEU were incorporated into British law, with overriding effect. The ‘supremacy’ of EEC law was fundamental to the way the Community worked from the start.

Lord Denning, Master of the Rolls, realised what had happened. In Bulmer v Bollinger (1974) he observed: ‘When we come to matters with a European element the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back.’ But the changes to the law and the legal system went largely unnoticed until the early 1990s. Then there was a series of cases that made it clear that acts of Parliament had to be read subject to the overriding provisions of EEC law; that an act that breached Community law was ineffective; and that an individual could obtain damages against the state for losses sustained as a result. As David Pannick QC said, in R v Foreign and Commonwealth Office ex parte Rees-Mogg (1993, in which former editor of The Times, Lord Rees-Mogg, challenged the legality of the Maastricht Treaty by judicial review): ‘Community law is now the fundamental law of the United Kingdom.’ Judgments of the CJEU are like judgments of the medieval papacy in that they apply throughout the whole of the EU and are very difficult to change, since any alteration involves the amendment of European legislation and even then, the CJEU may hold that the amendment is invalid, because it is not in accordance with the treaty.

As for the European Convention on Human Rights, here too there are similarities to the medieval Roman curia. The advocates of the Human Rights Act often point to the fact that the British helped to draft this convention and that the UK was one of the first signatories in 1950; but lawyers know that the convention of 2012 is not the same as it is was then, because it is interpreted by the European Court of Human Rights as a ‘living instrument’. The Strasbourg court therefore has the last say as to what it means. As a result, the Court of Justice of the European Union and the ECtHR are like the universe: they are constantly expanding in every direction.

When the ECHR was incorporated into UK law (by the Human Rights Act of 1998) this was more than an act of consolidation: it changed the law fundamentally, even if some of the changes were unforeseeable. The act provides that domestic courts must ‘take into account’ judgments of the ECtHR and must interpret all legislation in a way that is compatible with convention rights. This is a ‘new rule of interpretation’. Some judges were at one time known as ‘black letter’ judges, who adhered closely to the letter of the law. Others were known to be more ‘purposive’; but all are now required to interpret legislation in the light of what the Strasbourg court decides that the Convention means. Moreover the higher courts in Britain now have the power to declare that acts of Parliament are ‘incompatible’ with human rights. This does not render the offending legislation inoperative but it comes to much the same thing, since the Government always implements the judgments of the courts; and, in relation to the Strasbourg court, it is under a duty in international law to do so.

One of the purposes of the Human Rights Act of 1998 was ‘to bring rights home’; but the litigants can still lodge a complaint in Strasbourg, once they have exhausted the domestic remedies; and, once again, the effects of a judgment there are virtually irreversible. To amend the convention would require the agreement of all parties, of whom there are over 40. There is a widespread feeling in the UK that things are decided in Luxembourg and Strasbourg, for example about votes for prisoners and car insurance premiums, which ought to be decided here, either by Supreme Court or by Parliament; but the limitations on parliamentary sovereignty are routinely played down. Pro-Europeans do not want to admit to them, because it seems as if they have sold the pass. Anti-Europeans do not always want to admit that they are powerless to change the law.

What is to be done? Some people say ‘nothing’; the loss of sovereignty is all part of a grand historic bargain, struck for the greater economic good and in the interests of lasting European peace, while the recognition of fundamental human rights is essential to a civilised society. The Conservatives wish to modify the effect of the Human Rights Act by means of a Bill of Rights; but it is difficult to see how this can be achieved in a British context alone. As Francis Bennion, a leading authority on statutory interpretation, has recently pointed out, the Treaty of Lisbon of 2009 effectively incorporated the ECHR into EU law. The logic of this is that it is pointless to modify or withdraw from one European system of law without also modifying or withdrawing from the other.

Is it possible to break with Europe, as Henry VIII did, by means of a new Act in Restraint of Appeals? Such an act would have to prohibit individuals from lodging claims in Strasbourg and remove the right (and in the case of the Supreme Court, the duty) to refer questions to Luxembourg under Article 234 of the treaty; but it would scarcely be acceptable, today, to subject litigants and judges to the draconian penalties of Praemunire. Litigants might still seek to lodge claims in Strasbourg and courts might still try to refer questions to Luxembourg, despite the act. The domestic courts might still regard Luxembourg and Strasbourg as higher authorities, whether or not there was a formal right of recourse to those courts.

Even if it were possible to prevent cases from proceeding to Luxembourg and Strasbourg, this would not restore parliamentary sovereignty in its pristine condition. The constitution has been substantially modified in the last 50 years, as a result of developments in the common law and statute, which have shifted power away from Westminster, to Edinburgh, Cardiff and Belfast, to the courts and to the citizen.

In the field of the common law the scope of judicial review has expanded a great deal, bringing with it the idea that there is a general duty to consult and the notion that subordinate legislation can be set aside if it conflicts with fundamental rights. In the realm of statute law there have been enactments containing the three devolution settlements; guaranteeing judicial independence; imposing specific statutory duties to consult; and providing a new overarching duty to promote equality. These limit the power of the executive and they may even have limited the power of Parliament. These developments have coincided with the UK’s membership of the EU and the ECHR, but they have also had a life of their own.

A new Act in Restraint of Appeals might not achieve very much. A great deal of European legislation and case law has already been digested. The judiciary has gained authority in relation to the so-called ‘democratic powers’ (executive and legislature). European principles of law have become deeply embedded in our jurisprudence. Politics is a good deal more complicated than it was in the reign of Henry VIII; and, in some ways, a divorce may be much harder to obtain, let alone a clean break.

Stephen Cooper is a lawyer and the author of Sir John Hawkwood: Chivalry and the Art of War (Pen and Sword, 2008) and Sir John Fastolf and the Hundred Years War (Pen and Sword, 2010).