The Claim of Right (c. 28) is an
Act passed by the
Convention of the Estates
The Convention of Estates of Scotland was a sister institution to the Scottish Parliament which sat from the early sixteenth century. Initially it was only attended by the clergy and nobles, but the burgh commissioners were later added. The Conve ...
, a sister body to the
Parliament of Scotland
The Parliament of Scotland ( sco, Pairlament o Scotland; gd, Pàrlamaid na h-Alba) was the legislature of the Kingdom of Scotland from the 13th century until 1707. The parliament evolved during the early 13th century from the king's council o ...
(or Three Estates), in April 1689. It is one of the key documents of
United Kingdom constitutional law
The United Kingdom constitutional law concerns the governance of the United Kingdom of Great Britain and Northern Ireland. With the oldest continuous political system on Earth, the British constitution is not contained in a single code but princ ...
and
Scottish constitutional law
Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland ...
.
Background
In the
Glorious Revolution
The Glorious Revolution; gd, Rèabhlaid Ghlòrmhor; cy, Chwyldro Gogoneddus , also known as the ''Glorieuze Overtocht'' or ''Glorious Crossing'' in the Netherlands, is the sequence of events leading to the deposition of King James II and ...
,
William of Orange landed with his army in England on 5 November 1688. King
James VII of Scotland
James VII and II (14 October 1633 16 September 1701) was King of England and King of Ireland as James II, and King of Scotland as James VII from the death of his elder brother, Charles II, on 6 February 1685. He was deposed in the Glorious Re ...
, who was also
King of England
The monarchy of the United Kingdom, commonly referred to as the British monarchy, is the constitutional form of government by which a hereditary sovereign reigns as the head of state of the United Kingdom, the Crown Dependencies (the Bailiw ...
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
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 ...
on 13 February 1689 offering the Crown of England to William and
Mary
Mary may refer to:
People
* Mary (name), a feminine given name (includes a list of people with the name)
Religious contexts
* New Testament people named Mary, overview article linking to many of those below
* Mary, mother of Jesus, also calle ...
, 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 the Scottish throne.
Process
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
George Buchanan ( gd, Seòras Bochanan; February 1506 – 28 September 1582) was a Scottish historian and humanist scholar. According to historian Keith Brown, Buchanan was "the most profound intellectual sixteenth century Scotland produced." ...
's argument on the contractual nature of monarchy.
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.
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
A bishop is an ordained clergy member who is entrusted with a position of authority and oversight in a religious institution.
In Christianity, bishops are normally responsible for the governance of dioceses. The role or office of bishop is ca ...
were fully accepted by the new monarchy.
Provisions of the Act
The Act includes the passage:
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". 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).
The Act was retained by the Parliament of the United Kingdom after the
Acts of Union 1707
The Acts of Union ( gd, Achd an Aonaidh) were two Acts of Parliament: the Union with Scotland Act 1706 passed by the Parliament of England, and the Union with England Act 1707 passed by the Parliament of Scotland. They put into effect the te ...
.
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
The Court of Session is the supreme civil court of Scotland and constitutes part of the College of Justice; the supreme criminal court of Scotland is the High Court of Justiciary. The Court of Session sits in Parliament House in Edinburgh ...
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.
[''Joanna Cherry QC MP and Others for Judicial Review']
(4 September 2019) (Scotland). Para 30 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
Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland l ...
or the Claim of Right.
[''Joanna Cherry QC MP and Others v The Advocate General']
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 5. 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."
References
External links
*
{{UK legislation
1689 in law
1689 in Scotland
Acts of the Parliament of Scotland
Constitutional laws of Scotland
Succession to the British crown
Glorious Revolution