Claim of Right Act 1689

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Claim of Right Act 1689
Long titleThe Declaration of the Estates of the Kingdom of Scotland containing the Claim of Right and the offer of the Croune to the King and Queen of England.
Citation1689 c. 28
Territorial extentKingdom of Scotland
Status: Current legislation
Text of statute as originally enacted
Revised text of statute as amended

The Claim of Right is an Act passed by the Parliament of Scotland in April 1689. It is one of the key documents of Scottish constitutional law.

Background[edit]

In the Glorious Revolution, William of Orange landed with his army in England on 5 November 1688. King James VII of Scotland, who was also King of England and Ireland as James II, attempted to resist the invasion, he then sent representatives to negotiate, and he finally fled England on 23 December 1688.

Whilst the Convention Parliament in England declared that James, as King of England, had abdicated the Government, and issued an English Bill of Rights on 13 February 1689 offering the Crown of England to William and Mary, the Scots found themselves facing a more difficult constitutional problem; as James had not been present in Scotland during the crisis and had not fled from Scottish territory in December, it would be highly dubious to claim that he had abdicated the Scottish throne.

Process[edit]

Therefore, a Convention of the Scottish Estates met to consider letters received on 16 March 1689 from the two contenders for the Crown. On 4 April they voted to remove James VII from office, drawing on George Buchanan's argument on the contractual nature of monarchy.[1]

Later that month, the Convention adopted the Claim of Right and the Article of Grievances, enumerating what they saw as the contemporary requirements of Scottish constitutional law, it also declared that, because of his actions in violation of these laws, James had forfeited the Scottish throne.[2]

The Convention proceeded to offer the crown on the basis of these documents to William and Mary, who accepted it on 11 May 1689, and were proclaimed King and Queen of the Scots as William II and Mary II, though with subsequent controversy over whether the Claim of Right articles against Episcopacy were fully accepted by the new monarchy.[1]

Provisions of the Act[edit]

The Act includes the passages:

  • "That for redress of all grievances and for the amending strenthneing and preserving of the lawes Parliaments ought to be frequently called and allowed to sit and the freedom of speech and debate secured to the members"

Significance[edit]

The effect of the Claim of Right was to "bolster the position of parliament within the Scottish constitution at the expense of the royal prerogative",[3] it was affirmed by an Act of the Scottish Parliament of 1703 (Act Ratifieing the turning of the Meeting of the Estates in the year 1689, into a Parliament c. 3).[4] The Act was retained by the Parliament of the United Kingdom after the Acts of Union 1707.

In 2019, the Act was cited by MPs seeking a court ruling that Prime Minister Boris Johnson's prorogation of Parliament was unlawful; the claim was upheld by the Outer House of the Court of Session but the breach of the Act was found non-justiciable, refusing leave to bring judicial review, and that if it was justiciable then there was no breach.[4] However, the Inner House disagreed on appeal, ruling the issue justiciable and the prorogation unlawful, since its true purpose was to "stymie Parliamentary scrutiny of government action". This, it said, was not a consequence of peculiarities of Scots law or the Claim of Right;[5] as the English High Court ruled the matter nonjusticiable the same day, the two cases were referred to the Supreme Court for adjudication.

References[edit]

  1. ^ a b Lynch, Michael (1992). Scotland: A New History. Pimlico. p. 302. ISBN 0-7126-9893-0.
  2. ^ Wikisource:Claim of Right
  3. ^ Harris, Tim Revolution: The Great Crisis of the British Monarchy 1685–1720 Allen Lane (2006) pp. 401–402
  4. ^ a b Joanna Cherry QC MP and Others for Judicial Review [2019 CSOH 70] (4 September 2019) (Scotland). "An illustration of circumstances in which a court may conclude that a question or issue is not justiciable is provided by the line of argument in the present case that the making of the Order contravenes the provisions of the Claim of Right Act 1689. It is a statute but also a document of its time, it lacks the precision to be expected of modern legislation."
  5. ^ Joanna Cherry QC MP and Others v The Advocate General [2019] CSIH 49 (11 September 2019) (Scotland). "This is not because of the terms of the Claim of Right 1689 or of any speciality of Scots constitutional law, it follows from the application of the common law, informed by applying 'the principles of democracy and the rule of law' (Moohan v Lord Advocate 2015 SC (UKSC) 1, Lord Hodge at para [35]). The terms of the Claim of Right are not breached simply because Parliament does not sit for a month or so. Parliament has, throughout the year, been allowed to sit."

External links[edit]