Bill of Rights of 1689

The Bill of Rights 1689 is an Act of the Parliament of England, which sets out certain basic civil rights and clarifies who would be next to inherit the Crown, and is seen as a crucial landmark in English constitutional law. It received Royal Assent on 16 December 1689 and is a restatement in statutory form of the Declaration of Right presented by the Convention Parliament to William III and Mary II in February 1689, inviting them to become joint sovereigns of England.

Largely based on the ideas of political theorist John Locke, the Bill sets out certain constitutional requirements of the Crown to seek the consent of the people as represented in Parliament. As well as setting limits on the powers of the monarch, it established the rights of Parliament, including regular parliaments, free elections, and freedom of speech. It also listed individual rights, including the prohibition of cruel and unusual punishment and the right not to pay taxes levied without the approval of Parliament. Finally, it described and condemned several misdeeds of James II of England.

In the United Kingdom, the Bill is considered a basic document of the uncodified British constitution, along with Magna Carta, the Petition of Right, the Habeas Corpus Act 1679 and the Parliament Acts 1911 and 1949. A separate but similar document, the Claim of Right Act 1689, applies in Scotland. The Bill was one of the models used to draft the United States Bill of Rights, the United Nations Declaration of Human Rights and the European Convention on Human Rights. Along with the Act of Settlement 1701, it remains in effect within all Commonwealth realms, as amended by the Perth Agreement.

Background

During the 17th century, there was renewed interest in the Magna Carta. The Parliament of England passed the Petition of Right in 1628 which established certain liberties for subjects. The English Civil War (1642–1651) was fought between the King and an oligarchic but elected Parliament, during which the notion of long-term political parties took form with the New Model Army Grandees and humble, leveller-influenced figures debating a new constitution in the Putney Debates of 1647. Parliament was largely cowed by the executive during the Protectorate (1653–1659) and most of the twenty-five years of Charles II's English Restoration from 1660. However, it, with the advantage of the growth in printed pamphlets and support of the City of London, was able to temper some of the executive excess, intrigue and largesse of the government, especially the Cabal ministry who signed a Secret Treaty of Dover that allied England to France in a prospective war against, oft-allies, the Dutch Republic. It had already passed the Habeas Corpus Act 1679, which strengthened the convention that forbade detention lacking sufficient cause or evidence.

Glorious Revolution

Objecting to the policies of King James II of England (James VII of Scotland and James II of Ireland), a group of English Parliamentarians invited the Dutch stadtholder William III of Orange-Nassau (William of Orange) to overthrow the King. William's successful invasion with a Dutch fleet and army led to James fleeing to France. In December 1688, peers of the realm appointed William as provisional governor. It was widely acknowledged that such action was constitutional, if the monarch were incapacitated, and they summoned an assembly of many members of parliament. This assembly called for an English Convention Parliament to be elected, which convened on 22 January 1689.

Declaration of Right

The proposal to draw up a statement of rights and liberties and James's violation of them was first made on 29 January 1689 in the House of Commons, with members arguing that the House "cannot answer it to the nation or Prince of Orange till we declare what are the rights invaded" and that William "cannot take it ill if we make conditions to secure ourselves for the future" in order to "do justice to those who sent us hither". On 2 February a committee specially convened reported to the Commons 23 Heads of Grievances, which the Commons approved and added some of their own. However, on 4 February the Commons decided to instruct the committee to differentiate between "such of the general heads, as are introductory of new laws, from those that are declaratory of ancient rights". On 7 February the Commons approved this revised Declaration of Right, and on 8 February instructed the committee to put into a single text the Declaration (with the heads which were "introductory of new laws" removed), the resolution of 28 January and the Lords' proposal for a revised oath of allegiance. It passed the Commons without division.

On 13 February the clerk of the House of Lords read the Declaration of Right, and the Marquess of Halifax, in the name of all the estates of the realm, asked William and Mary to accept the throne. William replied for his wife and himself: "We thankfully accept what you have offered us". They then went in procession to the Great Gate at Whitehall. In a ceremony in the Banqueting House, Garter King of Arms proclaimed them King and Queen of England, France, and Ireland, whereupon they adjourned to the Chapel Royal, with the Bishop of London preaching the sermon. They were crowned on 11 April, swearing an oath to uphold the laws made by Parliament. The Coronation Oath Act 1688 had provided a new coronation oath, whereby the monarchs were to "solemnly promise and swear to govern the people of this kingdom of England, and the dominions thereunto belonging, according to the statutes in parliament agreed on, and the laws and customs of the same". They were also to maintain the laws of God, the true profession of the Gospel, and the Protestant Reformed faith established by law. This replaced an oath which had deferred more to the monarch. The previous oath required the monarch to rule based on "the laws and customs ... granted by the Kings of England".

The Act

The Declaration of Right was enacted in an Act of Parliament, the Bill of Rights 1689, which received the Royal Assent in December 1689. The Act asserted "certain ancient rights and liberties" by declaring that:

The pretended power of suspending the laws and dispensing with laws by regal authority without consent of Parliament is illegal; the commission for ecclesiastical causes is illegal; levying taxes without grant of Parliament is illegal; it is the right of the subjects to petition the king, and prosecutions for such petitioning are illegal; keeping a standing army in time of peace, unless it be with consent of Parliament, is against law; Protestants may have arms for their defence suitable to their conditions and as allowed by law; election of members of Parliament ought to be free; the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament; excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; jurors in trials for high treason ought to be freeholders; promises of fines and forfeitures before conviction are illegal and void; for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.

The Act declared James's flight from England following the Glorious Revolution to be an abdication of the throne. It listed twelve of James's policies by which James designed to "endeavour to subvert and extirpate the protestant religion, and the laws and liberties of this kingdom". These were: by assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament; by prosecuting the Seven Bishops; by establishing the court of commissioners for ecclesiastical causes; by levying taxes for the use of the Crown by pretence of prerogative as if the same was granted by Parliament; by raising and keeping a standing army within this kingdom in time of peace without consent of Parliament; by causing Protestants to be disarmed at the same time when papists were both armed and employed contrary to law; by violating the freedom of election of members to serve in Parliament; by prosecutions in the Court of King's Bench for matters and causes cognizable only in Parliament, and by divers (diverse) other arbitrary and illegal courses; by employing unqualified persons on juries in trials, and jurors in trials for high treason which were not freeholders; by imposing excessive bail on persons committed in criminal cases against the laws made for the liberty of the subjects; by imposing excessive fines and illegal and cruel punishments; by making several grants and promises made of fines and forfeitures before any conviction or judgment against the persons upon whom the same were to be levied;
* all which are utterly and directly contrary to the known laws and statutes and freedom of this realm.

In a prelude to the Act of Settlement to come twelve years later, the Bill of Rights barred Roman Catholics from the throne of England as "it hath been found by experience that it is inconsistent with the safety and welfare of this Protestant kingdom to be governed by a papist prince"; thus William III and Mary II were named as the successors of James II and that the throne would pass from them first to Mary's heirs, then to her sister, Princess Anne of Denmark and her heirs (and, thereafter, to any heirs of William by a later marriage).

Amendments and legacy

The Bill of Rights was later supplemented by the Act of Settlement 1701, which was agreed to by the Parliament of Scotland as part of the Treaty of Union. The Act of Settlement altered the line of succession to the throne laid out in the Bill of Rights. However, both the Bill of Rights and the Claim of Right contributed a great deal to the establishment of the concept of parliamentary sovereignty and the curtailment of the powers of the monarch.The earliest, and perhaps greatest, victory for liberalism was achieved in England. The rising commercial class that had supported the Tudor monarchy in the 16th century led the revolutionary battle in the 17th, and succeeded in establishing the supremacy of Parliament and, eventually, of the House of Commons. What emerged as the distinctive feature of modern constitutionalism was not the insistence on the idea that the king is subject to law (although this concept is an essential attribute of all constitutionalism). This notion was already well established in the Middle Ages. What was distinctive was the establishment of effective means of political control whereby the rule of law might be enforced. Modern constitutionalism was born with the political requirement that representative government depended upon the consent of citizen subjects. ... However, as can be seen through provisions in the 1689 Bill of Rights, the English Revolution was fought not just to protect the rights of property (in the narrow sense) but to establish those liberties which liberals believed essential to human dignity and moral worth. The "rights of man" enumerated in the English Bill of Rights gradually were proclaimed beyond the boundaries of England, notably in the American Declaration of Independence of 1776 and in the French Declaration of the Rights of Man in 1789. These have been held to have established the constitutional monarchy, and, along with the penal laws, settled much of the political and religious turmoil that had convulsed Scotland, England and Ireland in the 17th century.

The Act reinforced the Petition of Right and the Habeas Corpus Act 1679 by codifying certain rights and liberties. Described by William Blackstone as ''Fundamental Laws of England'', the rights expressed in these Acts became associated with the idea of the rights of Englishmen. The Bill of Rights directly influenced the 1776 Virginia Declaration of Rights, which in turn influenced the Declaration of Independence.

Although not a comprehensive statement of civil and political liberties, the Bill of Rights stands as one of the landmark documents in the development of civil liberties in the United Kingdom and a model for later, more general, statements of rights; these include the United States Bill of Rights, the French Declaration of the Rights of Man and of the Citizen, the United Nations Universal Declaration of Human Rights, and the European Convention on Human Rights."All the main principles of the Bill of Rights are still in force today, and the Bill of Rights continues to be cited in legal cases in the UK and in Commonwealth countries. It has a primary place in a wider national historical narrative of documents which established the rights of Parliament and set out universal civil liberties, starting with Magna Carta in 1215. It also has international significance, as it was a model for the US Bill of Rights 1789, and its influence can be seen in other documents which establish rights of human beings, such as the Declaration of the Rights of Man, the United Nations Declaration of Human Rights and the European Convention on Human Rights." For example, as with the Bill of Rights 1689, the US Constitution prohibits excessive bail and "cruel and unusual punishment". Similarly, "cruel, inhuman or degrading treatment or punishment" is banned under Article 5 of the Universal Declaration of Human Rights and Article 3 of the European Convention on Human Rights.

Legal status

The Bill of Rights remains in statute and continues to be cited in legal proceedings in the United Kingdom and other Commonwealth realms, particularly Article 9 on parliamentary freedom of speech. Following the Perth Agreement in 2011, legislation amending the Bill of Rights and the Act of Settlement 1701 came into effect across the Commonwealth realms on 26 March 2015 which changed the laws of succession to the British throne.

Australia

The Bill of Rights is incorporated into Australian law. The ninth article, regarding parliamentary freedom of speech, was inherited by Federal Parliament in 1901 under section 49 of the Australian Constitution. It was incorporated into the ''Parliamentary Privileges Act 1987'' which "preserves the application of the traditional expression of this privilege, but spells out in some detail just what may be covered by the term 'proceedings in Parliament'".

Canada

In Canada, the Bill of Rights remains in statute, although it has been largely superseded by domestic constitutional legislation. The ninth article on parliamentary freedom of speech remains in active use.

Ireland

The application of the Bill of Rights to the Kingdom of Ireland was uncertain. While the English Parliament sometimes passed acts relating to Ireland, the Irish Patriot Party regarded this as illegitimate, and others felt that English acts only extended to Ireland when explicitly stated to do so, which was not the case for the Bill of Rights. The Crown of Ireland Act 1542 meant the Bill's changes to the royal succession extended to Ireland. Bills modelled on the Bill of Rights were introduced in the Parliament of Ireland in 1695 and 1697 but not enacted. After the Acts of Union 1800, provisions relating to the rights of Parliament implicitly extended to Ireland, but provisions relating to the rights of the individual were a grey area. Some jurists regarded the bill not as positive law but as declaratory of the common law, and as such applicable to Ireland.

The Constitution of the Irish Free State, carry over laws in force in the former United Kingdom of Great Britain and Ireland to the extent they were not repugnant to those constitutions. The Bill of Rights was not referred to in subsequent Irish legislation until the Statute Law Revision Act 2007, which retained it, changed its short title to "Bill of Rights 1688" and repealed most of section 1 (the preamble) as being religiously discriminatory, which included: all words down to "Upon which Letters Elections having been accordingly made"; Article 7, which allowed Protestants to bear arms; and all words from "And they doe Claime Demand and Insist".

The Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 repealed Article 9 on "freedom of speech and debates or proceedings in Parliament" as part of a consolidation of the law on parliamentary privilege.

New Zealand

The Bill of Rights is part of the laws of New Zealand. The Act was invoked in the 1976 case of '' Fitzgerald v Muldoon and Others'', which centred on the purporting of newly appointed Prime Minister Robert Muldoon that he would advise the Governor-General to abolish a superannuation scheme established by the New Zealand Superannuation Act 1974, without new legislation. Muldoon felt that the dissolution would be immediate and he would later introduce a bill in parliament to retroactively make the abolition legal. This claim was challenged in court and the Chief Justice declared that Muldoon's actions were illegal as they had violated Article 1 of the Bill of Rights, which provides "that the pretended power of dispensing with laws or the execution of laws by regal authority ... is illegal."

United Kingdom

The Bill of Rights applies in England and Wales; it was enacted in the Kingdom of England which at the time included Wales. Scotland has its own legislation, the Claim of Right Act 1689, passed before the Act of Union between England and Scotland. There are doubts as to whether, or to what extent, the Bill of Rights applies in Northern Ireland, reflecting earlier doubts as regards Ireland.

The requirement that jurors be freeholders in cases of high treason was abolished in England and Wales by the Juries Act 1825, and in Northern Ireland (to the extent it applied) by the Statute Law Revision Act 1950.

Natural justice, the right to a fair trial, is in constitutional law held to temper unfair exploitation of parliamentary privilege. On 21 July 1995 a libel case, '' Neil Hamilton, MP v The Guardian'', collapsed as the High Court ruled that the Bill of Rights' total bar on bringing into question anything said or done in the House, prevented ''The Guardian'' from obtaining a fair hearing. Hamilton could otherwise have carte blanche to allege any background or meaning to his words, and no contradicting direct evidence, inference, extra submission or cross-examination of his words could take place due to the tight strictures of the Bill of Rights. Equally the highest court decided that absent a 1996 statutory provision, the Bill of Rights's entrenched Parliamentary Privilege would have prevented a fair trial but to Hamilton in the 2001 defamation action of ''Hamilton v Al-Fayed'' which went through the two tiers of appeal to like effect. Section 13 of the Defamation Act 1996 was then enacted and permits MPs to waive their parliamentary privilege and thus cite and have examined their own speeches if relevant to litigation.

Following the United Kingdom European Union membership referendum in 2016, the Bill of Rights was cited by the Supreme Court in the ''Miller'' case, in which the court ruled that triggering EU exit must first be authorised by an act of Parliament. It was cited again by the Supreme Court in its 2019 ruling that the prorogation of parliament was unlawful. The Court disagreed with the Government's assertion that prorogation could not be questioned under the Bill of Rights 1689 as a "proceeding of Parliament"; it ruled that the opposite assertion, that prorogation was imposed upon and not debatable by Parliament, and could bring protected parliamentary activity under the Bill of Rights to an end unlawfully.

Recognition

Two special designs of commemorative two pound coins were issued in the United Kingdom in 1989 to celebrate the tercentenary of the Glorious Revolution. One referred to the Bill of Rights and the other to the Claim of Right. Both depict the Royal Cypher of William and Mary and the mace of the House of Commons, one also shows a representation of the St Edward's Crown and the other the Crown of Scotland.

In May 2011, the Bill of Rights was inscribed in UNESCO's UK Memory of the World Register recognizing that:

As part of the Parliament in the Making programme, the Bill of Rights was on display at the Houses of Parliament in February 2015 and at the British Library from March to September 2015.

See also

* UK constitutional law
* Crown and Parliament Recognition Act 1689
* Financial Revolution
* History of liberalism
* Toleration Act 1689
* Absence of King William Act 1689

References

Citations

Notes

Bibliography

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External links

Text of the Bill of Rights
Yale Law School Law Library
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* holds the original document

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