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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Text of statute as originally enacted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) 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.

Background

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

Therefore, a Convention of the Scottish Estates ("three communities of the realm") of Scotland later made a Parliament of Scotland, is a sister body to the Parliament of Scotland, similar to the House of Lords and the House of Commons (or Three Estates), in April 1689. As the convention could be constituted faster than the Parliament it was summoned in March 1689; 'Conventions' were reflective of the landed gentry, the religious establishment and appointed borough commissioners but only discussed specific issues, the previous one held in 1678 to approve taxes. Of the 125 delegates elected, 75 were classed as Presbyterian, 50 as Episcopalian, making the convention a contest over control of the Church of Scotland, as well as the limits of Scots Royal authority. The self convened Convention 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 of Scots (II of England and Ireland) from office, drawing on George Buchanan's argument on the contractual nature of monarchy.[2]

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

Therfor the Estates of the kingdom of Scotland Find and Declaire That King James the Seventh being a profest papist Did assume the Regall power and acted as king without ever takeing the oath required by law and hath by the advyce of Evill and wicked Counsellors Invaded the “FUNDAMENTALL CONSTITUTION” of the Kingdome and ALTERED IT FROM A LEGALL LIMITED MONARCHY TO ANE ARBITRARY DESPOTICK POWER and hath Exercised the same to the subversione of the protestant religion and THE VIOLATION OF THE LAWES AND LIBERTIES OF THE KINGDOME INVERTING ALL THE ENDS OF GOVERNMENT wherby he hath “FORFAULTED” (Forfeited) the right to the Croune and the throne is become vacant.

And wheras His Royall Highness William then Prince of Orange now King of Ingland whom it hath pleased Almighty God to make the glorious instrument of delyvering these Kingdomes from Popery and arbitrary power did By the advyce of severall Lords and Gentlemen of this Nation at London for the tyme call the Estates of this Kingdome to meet the fourteenth of March last In order to such an Establishment as that their Religion lawes and liberties might not be again in danger of being subverted And “THE SAIDS ESTATES BEING NOW ASSEMBLED IN A FULL AND FREE REPRESENTATIVE OF THIS NATION” Takeing to their most serious Consideratione the best meanes for attaining the ends aforesaid DO IN THE FIRST PLACE AS THEIR ANCESTORS IN THE LIKE CASES HAVE USUALLY DONE FOR THE VINDICATING AND ASSERTING THEIR ANTIENT RIGHTS AND LIBERTIES DECLARE

That by the law of this Kingdome no papist can be King or Queen of this realme nor bear any office whatsomever therin nor can any protestant successor exercise the regall power untill he or she swear the Coronation Oath.

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 greivances and for the amending strenthneing and preserveing 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 PREJUDICE 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.

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.[2]

Provisions of the Act

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

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".[5] 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).[6] 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.[6] 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.[7]

References

  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. 1 2 Lynch, Michael (1992). Scotland: A New History. Pimlico. p. 302. ISBN 0-7126-9893-0.
  3. ↑ "Claim of Right Act 1689". legislation.gov.uk. Retrieved 19 October 2022.
  4. ↑ Wikisource:Claim of Right
  5. ↑ Harris, Tim Revolution: The Great Crisis of the British Monarchy 1685–1720 Allen Lane (2006) pp. 401–402
  6. 1 2 Joanna Cherry QC MP and Others for Judicial Review [2019 CSOH 70] (4 September 2019) (Scotland). Para 30
  7. ↑ 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."
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