Bill of Rights 1689

The Bill of Rights[nb 1]

Long title An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown.
Citation 1 William & Mary Sess 2 c 2
Dates
Commencement 1689
Status: Amended
Revised text of statute as amended
The Bill of Rights
Created 1689
Ratified December 16, 1689
Location Parliamentary Archives
Author(s) Parliament of England
Purpose Assert the rights of Parliament and the individual, and ensure a Protestant political supremacy

The Bill of Rights is an Act of the Parliament of England that deals with constitutional matters and sets out certain basic civil rights. Passed on 16 December 1689, it is a restatement in statutory form of the Declaration of Rights presented by the Convention Parliament to William and Mary in February 1689, inviting them to become joint sovereigns of England. The Bill of Rights lays down limits on the powers of the monarch and sets out the rights of Parliament, including the requirement for regular parliaments, free elections, and freedom of speech in Parliament. It sets out certain rights of individuals including the prohibition of cruel and unusual punishment and reestablished the liberty of Protestants to have arms for their defence within the rule of law. Furthermore, the Bill of Rights described and condemned several misdeeds of James II of England.[1]

These ideas reflected those of the political thinker John Locke and they quickly became popular in England.[2] It also sets out—or, in the view of its drafters, restates—certain constitutional requirements of the Crown to seek the consent of the people, as represented in Parliament.

In the United Kingdom, the Bill of Rights is further accompanied by Magna Carta, the Petition of Right, the Habeas Corpus Act 1679 and the Parliament Acts 1911 and 1949 as some of the basic documents of the uncodified British constitution. A separate but similar document, the Claim of Right Act 1689, applies in Scotland. The Bill of Rights 1689 was one of the inspirations for the United States Bill of Rights.

Along with the Act of Settlement 1701, the Bill of Rights is still in effect in all Commonwealth realms. Following the Perth Agreement in 2011, legislation amending both of them came into effect across the Commonwealth realms on 26 March 2015.

Background

Glorious Revolution

Main article: Glorious Revolution

In the Glorious Revolution of 1688, a group of English Parliamentarians invited the Dutch stadtholder William III of Orange-Nassau (William of Orange) to overthrow King James II of England (James VII of Scotland and James II of Ireland). William's successful invasion with a Dutch fleet and army led to James fleeing to France. In December 1688, William took over the provisional government by appointment of the peers of the realm, as was the legal right of the latter in circumstances when the King was incapacitated, and summoned an assembly of certain members of parliament. This assembly called for an English Convention Parliament to be elected, which convened on 22 January 1689.[3][4]

Declaration of Right

An 18th-century engraving, based on a drawing by Samuel Wale, of the Bill of Rights being presented to William and Mary

The proposal to draw up a statement of rights and liberties and James's violation of them was first made on 29 January in the House of Commons, with members arguing that the House "can not 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.[5]

On 13 February the clerk of the House of Lords read the Declaration of Right and 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. The Garter King at 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.[6] 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.[7] 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".[8]

Provisions of the Act

The Declaration of Right was in December 1689 enacted in an Act of Parliament, the Bill of Rights 1689.[9] The Act asserted "certain ancient rights and liberties" by declaring that:[10]

The Act declared James' 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".[11] These were:[12]

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).

Date and title

The Bill of Rights is commonly dated in legal contexts to 1688. This convention arises from the legal fiction (prior to the passage of the Acts of Parliament (Commencement) Act 1793) that an Act of Parliament came into force on the first day of the session in which it was passed. The Bill was therefore deemed to be effective from 13 February 1689 (New Style), or, under the Old Style calendar in use at the time, 13 February 1688. Under the Short Titles Act 1896, the Bill was given the official short title of "The Bill of Rights", without a calendar year suffix.[13]

Augmentation and effect

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.[14] 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.[15][16][17] Leading, ultimately, to the establishment of constitutional monarchy,[18] while also (along with the penal laws) settling the political and religious turmoil that had convulsed Scotland, England and Ireland in the 17th century.

The Bill of Rights (1689) reinforced the Petition of Right (1628) and the Habaes Corpus Act (1679) by codifying certain rights and liberties. The rights expressed in these Acts became associated with the idea of the rights of Englishmen,[19] and described as Fundamental Laws of England. The Bill of Rights directly influenced the 1776 Virginia Declaration of Rights,[nb 3] which in turn influenced the Declaration of Independence.[20]

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;[8] 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.[21][22] 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.[23][24] 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.[nb 4]

Part of the Bill of Rights remains in statute in the Republic of Ireland.

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.[23][nb 5]

On 21 July 1995 a libel case brought by Neil Hamilton (then a member of parliament) against The Guardian was stopped after Justice May ruled that the Bill of Rights' prohibition on the courts' ability to question parliamentary proceedings would prevent The Guardian from obtaining a fair hearing. Section 13 of the Defamation Act 1996, was subsequently enacted to permit MPs to waive their parliamentary privilege and thus cite their own speeches if relevant to litigation.[27]

Following the United Kingdom European Union membership referendum in 2016, the Bill of Rights was quoted in a court ruling on legal challenge seeking a judicial declaration that triggering EU exit must first be authorised by an act of Parliament.[28][29]

Australia

The ninth article, regarding parliamentary freedom of speech, is actively used in Australia.[23]

Canada

The article on parliamentary freedom of speech is in active use in Canada.[23]

New Zealand

The Bill of Rights was invoked in New Zealand in the 1976 case of Fitzgerald v Muldoon and Others,[30] which centred on the purporting of newly appointed Prime Minister Rob 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."[31]

Republic of Ireland

The Act was retained in the Republic of Ireland although sections were repealed by the Statute Law Revision Act 2007 section 2(2)(a),[32] and Part 2 of Schedule 1.[33] Section 2(3) of that Act repealed:

Modern 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.[34]

In May 2011, the Bill of Rights was inscribed in UNESCO's UK Memory of the World Register.[21][35]

As part of the Parliament in the Making programme, the Bill of Rights was on display at the Houses of Parliament in February 2015.[36]

See also

Notes

  1. ↑ The Act is cited as "The Bill of Rights" in the United Kingdom, as authorised by section 1 of, and the First Schedule to, the Short Titles Act 1896. Owing to the repeal of those provisions, it is now authorised by section 19(2) of the Interpretation Act 1978. In the Republic of Ireland, it is cited as "The Bill of Rights 1688", as authorised by section 1 of, and the First Schedule to, the Short Titles Act 1896 (as amended by section 5(a) of the Statute Law Revision Act 2007). The short title of this Act was previously "The Bill of Rights".
  2. ↑ Arguably, this right is subject to continuing derogation in modern times; see, for example, Armed Forces Act and discussion of the same in Military Covenant.
  3. ↑ Section Seven of the Virginia Declaration of Rights reads,
    That all power of suspending laws, or the execution of laws, by any authority, without consent of the representatives of the people, is injurious to their rights and ought not to be exercised.
    which strongly echoes the first two "ancient rights and liberties" asserted in the Bill of Rights 1689:
    That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;
    That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;
    And the Virginia Declaration's Section Nine,
    That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
    is borrowed word for word from the Bill of Rights 1689.
  4. ↑ In Quebec the validity of the Canadian parliament's legislation is under judicial review. Blanchfield, Mike (22 July 2013). "Quebec government to mount legal challenge to new royal succession law". National Post
  5. ↑ The United Kingdom consists of four countries and three distinct legal systems: England and Wales, Scotland and Northern Ireland.[25][26] These jurisdictions have particular legal considerations of their own, arising from differences in English law, Scots law and Northern Ireland law.

References

  1. ↑ "Britain's unwritten constitution". British Library. Retrieved 27 November 2015. The key landmark is the Bill of Rights (1689), which established the supremacy of Parliament over the Crown.... The Bill of Rights (1689) then settled the primacy of Parliament over the monarch’s prerogatives, providing for the regular meeting of Parliament, free elections to the Commons, free speech in parliamentary debates, and some basic human rights, most famously freedom from ‘cruel or unusual punishment’.
  2. ↑ Schwoerer 1990, pp. 531–548.
  3. ↑ Anon. 2010, pp. 2–4.
  4. ↑ "Bill of Rights". British Library. Retrieved 23 June 2015.
  5. ↑ Horwitz 1977, p. 12.
  6. ↑ Carpenter 1956, pp. 145–46.
  7. ↑ Williams 1960, pp. 37–39.
  8. 1 2 "The Convention and Bill of Rights". UK Parliament. Retrieved 2 November 2014.
  9. ↑ Thatcher 1907, pp. 10.
  10. ↑ Williams 1960, pp. 28–29.
  11. ↑ Williams 1960, p. 26.
  12. ↑ Williams 1960, p. 27.
  13. ↑ "Bill of Rights [1688]". legislation.gov.uk. note X1. Retrieved 14 July 2015.
  14. ↑ "The Act of Settlement". UK Parliament. Retrieved 8 November 2014.
  15. ↑ "The Bill of Rights". British Library. Retrieved 27 November 2015. This vigorous assertion of the rights of the subject meant that the Bill of Rights is often seen as parallel in importance with Magna Carta itself.
  16. ↑ "Rise of Parliament". The National Archives. Retrieved 22 August 2010. Although the Bill of Rights attacked the abuse of prerogative power rather than prerogative power itself, it had the virtue of enshrining in statute what many regarded as ancient rights and liberties. However, some historians maintain that a more profound change in the relationship between sovereign and Parliament emerged as a result of the financial settlement that Parliament negotiated with William and Mary.
  17. ↑ "Constitutionalism: America & Beyond". Bureau of International Information Programs (IIP), U.S. Department of State. Retrieved 30 October 2014. 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.
  18. ↑ Walker 2009, p. 2: "thereby establishing a constitutional monarchy".
  19. ↑ Billias 2011, p. 54.
  20. ↑ Maier 1997, pp. 126–28.
  21. 1 2 "2011 UK Memory of the World Register". United Kingdom National Commission for UNESCO. 23 May 2011. Retrieved 4 June 2011. 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.
  22. ↑ "Facts About the Bill of Rights on Its 220th Anniversary". History.com. 15 December 2011. Retrieved 29 September 2012.
  23. 1 2 3 4 Lock 1997, pp. 540–561.
  24. ↑ Toporoski, Richard (Summer 1996). "Monarchy Canada: The Invisible Crown". Archived from the original on 17 June 1997.
  25. ↑ "A Guide to the UK Legal System". Hauser Global Law School Program, New York University School of Law. November 2005. Retrieved 16 March 2016.
  26. ↑ "The Legal System of the United Kingdom". The Chartered Institute of Legal Executives. Retrieved 16 March 2016.
  27. ↑ Alexander Horne; Oonagh Gay (21 May 2014). "Ending the Hamilton Affair?". UK Constitutional Law Association Blog. Retrieved 19 March 2015.
  28. ↑ "Miller & Anor, R (On the Application Of) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (03 November 2016)". England and Wales High Court (Administrative Court) Decisions. 3 November 2016. Retrieved 4 November 2016. This subordination of the Crown (i.e. the executive government) to law is the foundation of the rule of law in the United Kingdom. It has its roots well before the war between the Crown and Parliament in the seventeenth century but was decisively confirmed in the settlement arrived at with the Glorious Revolution in 1688 and has been recognised ever since,
    Sir Edward Coke reports the considered view of himself and the senior judges of the time in The Case of Proclamations (1610) 12 Co. Rep. 74, that:
    "the King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm"
    and that:
    "the King hath no prerogative, but that which the law of the land allows him."
    The position was confirmed in the first two parts of section 1 of the Bill of Rights 1688:
    "Suspending power - That the pretended power of suspending of laws or the execution of laws by regall authority without consent of Parlyament is illegall.
    Late dispensing power - That the pretended power of dispensing with laws or the execution of laws by regall authoritie as it hath beene assumed and exercised of late is illegall."
  29. ↑ "Brexit court ruling: Your questions answered". BBC. Retrieved 4 November 2016.
  30. ↑ "The Constitutional Setting". States Services Commission, New Zealand. Archived from the original on 16 October 2008.
  31. ↑ "The legitimacy of judicial review of executive decision-making". New Zealand Law Society. Archived from the original on 4 February 2010.
  32. ↑ "Statute Law Revision Act 2007 Section 2". Irish Statute Book.
  33. ↑ "Statute Law Revision Act 2007 Schedule 1". Irish Statute Book.
  34. ↑ "Two Pound Coin". The Royal Mint. Retrieved 15 February 2015.
  35. ↑ "Life, death and everything in between". UK Parliament. 23 May 2011. Retrieved 4 June 2011.
  36. ↑ "Magna Carta & Parliament Exhibition". UK Parliament. Retrieved 15 February 2015.

Bibliography

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