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{{Short description|Kingdom of Scotland legislation}}
{{redirect|Claim of Right}}
{{redirect|Claim of Right}}
{{Use dmy dates|date=April 2020}}
{{Wikisourcepar|Claim of Right}}
{{Wikisource|Claim of Right}}
{{Infobox UK legislation
{{Infobox UK legislation
| short_title = Claim of Right<ref>The citation of this Act by this [[short title]] was authorised by the [[Statute Law Revision (Scotland) Act 1964]], section 2 and [https://books.google.com/books?id=tHMaAQAAMAAJ&pg=PA1258 Schedule 2]. Due to the repeal of those provisions it is now authorised by section 19(2) of the [[Interpretation Act 1978]].</ref>
|short_title = Claim of Right Act 1689
| type = Act
|parliament = Parliament of Scotland
|long_title = The 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.
| parliament = Parliament of Scotland
| long_title = The 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.
|year = 1689
| year = 1689
|statute_book_chapter = 1689 c. 28
| citation = 1689 c. 28
|introduced_by =
| introduced_commons =
| introduced_lords =
|territorial_extent = [[Kingdom of Scotland]]
| territorial_extent = [[Kingdom of Scotland]]
|royal_assent =
|commencement =
| royal_assent =
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| repeal_date =
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|related_legislation =
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|status = Current
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|original_text = http://www.rps.ac.uk/trans/1689/3/108
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| legislation_history =
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| original_text = http://www.rps.ac.uk/trans/1689/3/108
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The '''Claim of Right''' is an [[Acts of Parliament|Act]] passed by the [[Parliament of Scotland]] in April 1689. It is one of the key documents of [[Scots Law|Scottish constitutional law]].
The '''Claim of Right''' (c. 28; {{Lang-gd|Tagradh na Còire}}) is an [[Acts of Parliament|Act]] passed by the [[Convention of the Estates of Scotland|Convention of the Estates]], a sister body to the [[Parliament of Scotland]] (or Three Estates), in April 1689. It is one of the key documents of [[United Kingdom constitutional law]] and [[Scots Law|Scottish constitutional law]].<ref>{{Cite web|url=https://www.bbc.com/naidheachdan/38254261|title=Sean agus ùr|date=8 December 2016|via=www.bbc.com}}</ref>


==Background==
==Background==
[[File:Großbritannien- 1989 Claim of Right - Münzkabinett, Berlin - 5529713.jpg|thumb|1989 coin commemorating the Claim of Right]]
In the [[Glorious Revolution]], [[William III of England|William of Orange]] landed with his army in [[England]] on 5 November 1688. King [[James II of England|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.
In the [[Glorious Revolution]], [[William III of England|William of Orange]] invaded England, landing with his Dutch Army in England on 5 November 1688. King [[James II of England|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 (1689)|Convention Parliament]] in England declared that James, as King of England, had abdicated the Government, and issued an [[Bill of Rights 1689|English Bill of Rights]] on 13 February 1689 offering the Crown of England to William and [[Mary II of England|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 {{em|abdicated}} the Scottish throne.
Whilst the [[Convention Parliament (1689)|Convention Parliament]] in England declared that James, as King of England, had abdicated the government, and issued an [[Bill of Rights 1689|English Bill of Rights]] on 13 February 1689 offering the Crown of England to William and [[Mary II of England|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 {{em|abdicated}} the Scots throne.


==Process==
==Process==
⚫
Therefore, a [[Convention of Estates (1689)|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.<ref name="lynch92">{{cite book | last=Lynch | first=Michael | title=Scotland: A New History | publisher=Pimlico | year=1992 | isbn=0-7126-9893-0 | page=[https://archive.org/details/scotlandnewhisto0000lync/page/302 302] | url=https://archive.org/details/scotlandnewhisto0000lync/page/302 }}</ref>


⚫
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,<ref>{{cite web |title=Claim of Right Act 1689 |url=https://www.legislation.gov.uk/aosp/1689/28/28/paragraph/p16 |website=legislation.gov.uk |access-date=19 October 2022}}</ref> James had forfeited the Scottish throne.<ref>[[Wikisource:Claim of Right]]</ref>
⚫
Therefore, a [[Convention of Estates (1689)|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.<ref name="lynch92">{{cite book | last=Lynch|first=Michael | title=Scotland: A New History | publisher=Pimlico | year=1992 | isbn=0-7126-9893-0|page=302}}</ref>


⚫
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 [[Episcopal polity|Episcopacy]] were fully accepted by the new monarchy.<ref name="lynch92" />
⚫
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.<ref>[[Wikisource:Claim of Right]]</ref>

⚫
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 [[Episcopal polity|Episcopacy]] were fully accepted by the new monarchy.<ref name="lynch92"/>


== Provisions of the Act ==
== Provisions of the Act ==
The Act includes the passages:
The Act includes the passages:


{{quote|That all Proclamationes asserting ane ABSOLUTE POWER to Cass annull and Dissable lawes are Contrair to Law}}
⚫
* "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"

{{quote|That it is the right and priviledge of the subjects to protest for remeed of law to the King and Parliament against Sentences pronounced by the lords of Sessione Provydeing the samen Do not stop Execution of these sentences}}

{{quote|That it is the right of the subjects to petition the King and that all Imprisonments and prosecutiones for such petitioning are Contrary to law}}

⚫
{{quote|That for redress of all grievances and for the amending strenthening 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}}

{{quote|And they (the People of Scotland) Doe Claim Demand and insist upon all and sundry the premisses as ther undoubted right and liberties And that no Declarationes Doeings or proceedings to the "PREDJUDICE OF THE PEOPLE" in any of the said premisses ought in any wayes to be drawne hereafter in Consequence or Example But that all forefaultors fynes loss of offices Imprisonments Banishments pursuits persecutiones tortures and rigorous Executiones be Considered and the pairties læsed be redressed}}


== Significance ==
== Significance ==
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".<ref>Harris, Tim ''Revolution: The Great Crisis of the British Monarchy 1685–1720'' Allen Lane (2006) pp. 401–402</ref> 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).<ref name=":0" /> The Act was retained by the Parliament of the United Kingdom after the [[Acts of Union 1707]].
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".<ref>Harris, Tim ''Revolution: The Great Crisis of the British Monarchy 1685–1720'' Allen Lane (2006) pp. 401–402</ref> 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).<ref name=":0" /> 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 [[2019 British prorogation controversy|September 2019 prorogation of Parliament]] was unlawful. The [[Court of Session]] Outer House judge, Lord Doherty found the claim was non-justiciable, and that if it was justiciable then there was no breach of the Claim of Right.<ref name=":0">''Joanna Cherry QC MP and Others for Judicial Review'' [https://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_70.html {{bracket|2019 CSOH 70}}] ({{date|4 September 2019}}) (Scotland).<!-- The foregoing is {{Cite BAILII}} manually substed and edited to correct the URL, since I couldn't get it to generate the correct one --> Para 30</ref> The Inner House allowed the appeal, ruling the issue justiciable and the prorogation unlawful, since its true purpose was to "stymie Parliamentary scrutiny of government action". However, it said this was not a consequence of peculiarities of [[Scots law]] or the Claim of Right.<ref>''Joanna Cherry QC MP and Others v The Advocate General'' [https://www.bailii.org/scot/cases/ScotCS/2019/2019_CSIH_49.html {{bracket|2019}} CSIH 49] ({{date|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."</ref> The English High Court ruled the matter nonjusticiable the same day, and the two cases were [[R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland|conjoined on appeal to the Supreme Court]] which upheld the verdict of the Inner House.
In 2019, the Act was cited by MPs seeking a court ruling that Prime Minister Boris Johnson's [[2019 British prorogation controversy|September 2019 prorogation of Parliament]] was unlawful. The [[Court of Session]] Outer House judge, Lord Doherty found the claim was non-justiciable, and that if it was justiciable then there was no breach of the Claim of Right.<ref name=":0">''Joanna Cherry QC MP and Others for Judicial Review'' [https://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_70.html {{bracket|2019 CSOH 70}}] (4 September 2019) (Scotland).<!-- The foregoing is {{Cite BAILII}} manually substed and edited to correct the URL, since I couldn't get it to generate the correct one --> Para 30</ref> The Inner House allowed the appeal, ruling the issue justiciable and the prorogation unlawful, since its true purpose was to "stymie Parliamentary scrutiny of government action". However, it said this was not a consequence of peculiarities of [[Scots law]] or the Claim of Right.<ref>''Joanna Cherry QC MP and Others v The Advocate General'' [https://www.bailii.org/scot/cases/ScotCS/2019/2019_CSIH_49.html {{bracket|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."</ref>


==References==
==References==
Line 52: Line 72:
*{{UK-LEG|title=Claim of Right Act 1689}}
*{{UK-LEG|title=Claim of Right Act 1689}}


{{Succession to the British throne}}
{{UK legislation}}



[[Category:1689 in law]]
[[Category:1689 in law]]

Latest revision as of 15:37, 10 May 2024

"Claim of Right" redirects here. For other uses, see Claim of Right (disambiguation).

Wikisource has original text related to this article:
Claim of Right[1]
Act of Parliament
Parliament of Scotland
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 extent Kingdom of Scotland
Status: Current legislation
Text of statute as originally enacted
Text of the Claim of Right 1689 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.

The Claim of Right (c. 28; Scottish Gaelic: Tagradh na Còire) is an Act passed by the Convention of the Estates, a sister body to the Parliament of Scotland (or Three Estates), in April 1689. It is one of the key documents of United Kingdom constitutional law and Scottish constitutional law.[2]

Background

[edit]
1989 coin commemorating the Claim of Right

In the Glorious Revolution, William of Orange invaded England, landing with his Dutch 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 Scots 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.[3]

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,[4] James had forfeited the Scottish throne.[5]

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.[3]

Provisions of the Act

[edit]

The Act includes the passages:

That all Proclamationes asserting ane ABSOLUTE POWER to Cass annull and Dissable lawes are Contrair to Law

That it is the right and priviledge of the subjects to protest for remeed of law to the King and Parliament against Sentences pronounced by the lords of Sessione Provydeing the samen Do not stop Execution of these sentences

That it is the right of the subjects to petition the King and that all Imprisonments and prosecutiones for such petitioning are Contrary to law

That for redress of all grievances and for the amending strenthening 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

And they (the People of Scotland) Doe Claim Demand and insist upon all and sundry the premisses as ther undoubted right and liberties And that no Declarationes Doeings or proceedings to the "PREDJUDICE OF THE PEOPLE" in any of the said premisses ought in any wayes to be drawne hereafter in Consequence or Example But that all forefaultors fynes loss of offices Imprisonments Banishments pursuits persecutiones tortures and rigorous Executiones be Considered and the pairties læsed be redressed

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".[6] 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).[7] 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 September 2019 prorogation of Parliament was unlawful. The Court of Session Outer House judge, Lord Doherty found the claim was non-justiciable, and that if it was justiciable then there was no breach of the Claim of Right.[7] The Inner House allowed the appeal, ruling the issue justiciable and the prorogation unlawful, since its true purpose was to "stymie Parliamentary scrutiny of government action". However, it said this was not a consequence of peculiarities of Scots law or the Claim of Right.[8]

References

[edit]
  1. ^ The citation of this Act by this short title was authorised by the Statute Law Revision (Scotland) Act 1964, section 2 and Schedule 2. Due to the repeal of those provisions it is now authorised by section 19(2) of the Interpretation Act 1978.
  2. ^ "Sean agus ùr". 8 December 2016 – via www.bbc.com.
  3. ^ a b Lynch, Michael (1992). Scotland: A New History. Pimlico. p. 302. ISBN 0-7126-9893-0.
  4. ^ "Claim of Right Act 1689". legislation.gov.uk. Retrieved 19 October 2022.
  5. ^ Wikisource:Claim of Right
  6. ^ Harris, Tim Revolution: The Great Crisis of the British Monarchy 1685–1720 Allen Lane (2006) pp. 401–402
  7. ^ a b Joanna Cherry QC MP and Others for Judicial Review [2019 CSOH 70] (4 September 2019) (Scotland). Para 30
  8. ^ 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."
[edit]
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