View source for Claim of Right 1689

{{Short description|Kingdom of Scotland legislation}}
{{Use dmy dates|date=April 2020}}
{{Infobox UK legislation
| short_title           = Claim of Right<ref name=st>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>
| 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.
| year                  = 1689
| citation              = 1689 c. 28{{br}}[12mo ed: c. 13]
| introduced_commons    = 
| introduced_lords      = 
| territorial_extent    = [[Kingdom of Scotland]]
| royal_assent          = 11 April 1689
| commencement          = 
| expiry_date           = 
| repeal_date           = 
| amends                = 
| replaces              = 
| amendments            = 
| repealing_legislation = 
| related_legislation   = [[Coronation Oath Act 1688]]
| status                = current
| original_text         = http://www.rps.ac.uk/trans/1689/3/108
| use_new_UK-LEG        = yes
| UK-LEG_title          = 
| collapsed             = 
}}{{redirect|Claim of Right}}
{{Wikisource|Claim of Right}}

The '''Claim of Right'''<ref name=st/> (c. 28) ({{Langx|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==
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 Scots throne.

==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>

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 ==
The act includes the passages:

{{boxquote|That all Proclamationes asserting ane absolute power to Cass annull and Dissable lawes [...] are Contrair to Law|source=paragraph 20}}

{{boxquote|That it is the right and privilege 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 {{sic|greivances|hide=y}} and for the amending {{sic|strenthneing|hide=y}} and {{sic|preserveing|hide=y}} 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 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|source=paragraphs 41-44}}

== 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]].

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==
{{reflist}}

==External links==
*{{UK-LEG|title=Claim of Right Act 1689}}

{{Succession to the British throne}}


[[Category:1689 in law]]
[[Category:1689 in Scotland]]
[[Category:Acts of the Parliament of Scotland]]
[[Category:Constitutional laws of Scotland]]
[[Category:Succession to the British crown]]
[[Category:Glorious Revolution]]