On 16 August 2013, Haddon-Cave J granted the Plantagenet Alliance permission to bring judicial review proceedings against the Secretary of State for Justice and the University of Leicester on all grounds raised in its petition: see Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor  EWHC B13 (Admin). The substantive hearing of these proceedings is set down for next (legal) term and is expected to take one day. This post analyses the arguments leading to this decisions, some of which may be rehearsed again at the substantive hearing.
Permission was granted on two grounds:
- The archaeological discovery of the mortal remains of a former King of England after 500 years is without precedent [para 1].
- There was a duty at common law to consult widely as to how and where Richard III’s remains should appropriately be reinterred [para 2].
Few will dispute the first point and some parallels may be drawn with the potential identification of the mortal remains of another former King of England after over 1100 years . With regard to the second, judicial considerations centered around the consultations which should, or should not, have taken place prior to the exhumation once it was “beyond reasonable doubt” that the remains were those of Richard III. Haddon-Cave J did not venture into the legislation associated with the reburial per se because that will be subject to ecclesiastical jurisdiction. Other important issues were the standing of the Plantagenet Alliance and whether or not Article 8 ECHR was engaged.
Standing and amenability
The planned changes to judicial review and standing are unlikely to have an impact on the current action by the Plantagenet Alliance, for which section 31(3) of the Senior Courts Act 1981 sets out a test for legal standing based upon a requirement of “sufficient interest” in the matter in question: see Mark Elliott’s post of 29 July 2013 on his Public Law for Everyone blog.
Haddon-Cave J indicated [para 15 ] that he was
“satisfied that the Claimant, and its subscribers, have sufficient interest and standing to bring these proceedings on all Grounds, both on conventional principles, and in the unusual circumstances of this case which involve the discovery of the proven remains of a former monarch”.
This is supported by the authorities cited , which relate to examples, inter alia, of
- the concept of “associational standing” whereby a pressure-group was allowed to issue a claim on behalf of its local members;
- a claimant company that had been incorporated by objectors to a scheme several weeks after the planning permission was granted (to avoid personal liability for costs); and
- an incorporated action group having sufficient interest to mount a challenge to a grant of planning permission which affected its members despite the fact that, unlike its members, it did not have a direct interest in the affected land.
However, there is a possible caveat, since in Walton v The Scottish Ministers  UKSC 44 Lord Reed states [at paras 83 to 84] that although the words “person aggrieved” are of wide import and should not be subjected to a restrictive interpretation,
“Lord Fraser of Tullybelton made clear in Arsenal Football Club Ltd v Ende  AC 1, 32 the meaning to be attributed to the phrase will vary according to the context in which it is found. It is therefore necessary, as Lord President Rodger observed in Lardner v Renfrew District Council 1997 SC 104, 108, to have regard to the particular legislation involved, and the nature of the grounds on which the appellant claims to be aggrieved” [emphasis added].
With regard to accommodation, the judge was satisfied that the University of Leicester is, for present purposes, acting as a public authority and amenable to judicial review in respect of its Decision under challenge: see Ali v Head Teacher and Governors of Lord Grey School  QB 1231.
The merits of the Claimant’s challenge were held to be clearly arguable [paras 17 to 21] and, in particular, the following propositions [para.22]:
(1) There was a legitimate expectation that the Secretary of State would, prior to granting a Licence, consult widely to how, and where, Richard III’s remains should be appropriately reinterred, in the event that they were discovered during the proposed archaeological dig.
(2) The category of appropriate consultees is potentially very wide and includes those listed by the Claimant, namely (i) the citizens of this country who have an interest in the place of reburial of the remains of a King of England; (ii) the living collateral descendants of Richard III; (iii) the wishes of Richard III himself, in so far as they can be ascertained or inferred; together with (iv) ecclesiastical bodies with an interest in the resting place of the remains of Richard III; (v) civic bodies with an interest in the remains of Richard III; and (vi) HM The Queen.
(3) The Secretary of State’s duty to consult was non-delegable and, in any event, could not properly be delegated to a party or licensee who was not independent or had a personal interest in the outcome, such as the University of Leicester.
(4) The Secretary of State failed to carry out any, or any proper, consultation regarding the re-interment of Richard III’s remains prior to issuing the Licence on 3rd September 2012.
(5) The Secretary of State failed, thereafter, to revisit his decision to grant the Licence on or after 4th February 2013 once it became clear (i) that Richard III’s remains had indeed been found; and (ii) that there was growing concern and controversy as to where they should be reburied; but (iii) that the University of Leicester nevertheless intended to proceed with a re-interment in Leicester Cathedral without any consultation having first been carried out.
(6) The University of Leicester, as a responsible public body, should not have begun making arrangements for the re-interment of the remains of Richard III at Leicester Cathedral, prior to an appropriate consultation being carried out.
In paragraphs 24 to 34, Haddon-Cave J expanded on the particular points that are arguable on the evidence and materials presented. It is useful to analyse this under the following headings:
- Guidance and Consultation: “Official” Guidance, [para.24, 25]; failure to apply Guidance, [para. 27]; the Secretary of State’s ‘practice’, [para. 28]; consultation idea to be dropped, [para. 29]; belated attempt at consultation, [para, 32];
- Importance of case and public response: Secretary of State’s knowledge of importance of issue, [para.26]; public feeling, [para.30]; Parliamentary debate, [para. 31]; unprecedented nature, [para. 34];
- Article 8 issues: [para. 33].
Guidance and consultation
There are two separate aspects to the duty of the Ministry of Justice to consult: the common law duty to consult and the criteria by which the MoJ was bound. With regard to the latter, the document Human Remains Excavated from Christian Burial Grounds in England is described [at para. 24] as
“official guidance on the treatment of excavated human remains … issued under the aegis of the English Heritage … drawn up by a panel of experts including personnel from the Home Office”.
Paragraphs 18, 20 and 21 of the Guidance describe the issues which should be taken into consideration when undertaking excavations in this area [para. 25 of judgement].
However: the document is not statutory guidance; it is not one of the principal types of statutory consent listed by English Heritage on which it is required to consult ; and it was drawn up between the English Heritage and the Church of England, although Home Office officials contributed to its production. It might therefore be argued that the MoJ was not bound by this Guidance, although the judge stated [paras. 20 and 21]
“Section 25 of the Burial Act 1857 confers an unfettered discretion on the Secretary of State to decide to decide whether to grant a licence on what terms; and, in the absence of special circumstances, it is inappropriate for the court to treat a statutorily conferred discretion with no express limitations or fetters as being somehow implicitly limited or fettered (per Lord Neuberger MR in R (Rudewicz) v Secretary of State for Justice  QB 410 at paragraph ).
“The Secretary of State … however, has a duty when granting such licences to act rationally and in accordance with the general law. A duty arises at common law to consult before making decision law where there is a promise to do so, or a legitimate expectation that there will be consultation” [emphasis added].
However, in Rudewicz Lord Neuberger continued by saying [at para 31] that
“… unless there is some justification for doing so, it is for the Secretary of State to decide on what grounds and in what circumstances to grant a licence, and, apart from an obligation to act rationally, and otherwise in accordance with the general law (including that relating to human rights), there should be no operative fetter or presumption”.
A detailed consideration of legitimate expectations in the context of Cabinet Office consultations was given by Laws LJ in R (Bhatt Murphy) v Secretary of State for the Home Department  EWCA Civ 755, which he noted [at para 3] that “[i]t is a field much trodden in recent years, but its principles are still developing.” David Manknell discusses this case with particular reference to the duty to consult and with procedural legitimate expectations.
The actions of the Ministry of Justice need to be assessed on the extent of its knowledge and the appreciation of the implications [para17]. It is significant, therefore, that in the Application form for authority to exhume buried human remains for archaeological purposes, Section 3, Human Remains, the University states that
“A research excavation is underway to investigate the remains of Leicester’s Franciscan Friary and also potentially locate the burial place of Richard III whose remains were interred here in 1485, although these may subsequently have been exhumed and thrown into the nearby River Soar after the Dissolution in 1538 . It is proposed to exhume up to six sets of human remains”, [emphasis added].
and in Section 4, Archaeological Project,
“Please note: in the unlikely event that the remains of Richard III are located, the intention is for these to be reinterred at St Martin’s Cathedral, Leicester, within 4 weeks  of exhumation” [emphasis added].
The resulting exhumation licence of 3 September 2012 refers to the removal of the remains of persons unknown.
Importance of the case and the public response
Underpinning the argument that there was an “obvious duty to consult widely” is the “singular fact” that “this case is unprecedented. It involves the remarkable, and unprecedented, discovery of remains of a King of England of considerable historical significance, who died fighting a battle which brought to an end a civil war which divided this country” [para 34]. As noted above, the MoJ’s level of awareness throughout the timeline of events is an important factor.
With regard to the interest in the exhumation and reburial of Richard III, the court’s attention was drawn to two different e-petitions signed by people who wish to see the burial in York Minster or remaining in Leicester, which at the time of writing this post (19 August 2013) have been signed by 27,752 and 8,282 people, respectively.
It is difficult to assess such e-petitions objectively, either absolutely or relatively, although Parliament has adopted its own criteria: those achieving at least 100,000 signatures are considered for debate in the House of Commons:and those with more than 10,000 signatures are generally provided with a response from the relevant Government department . Currently, the list of e-petitions is headed by “Stop the badger cull” at 263,748 signatures, although current e-petitions pale into insignificance when compared with earlier “conventional” petitions (2 million on road charging in 2007 and 4.5 million on the ambulance strike in 1989).
Although the court noted [at para 27] that “the question of where Richard III should be reburied was considered to be sufficiently important to warrant of a Parliamentary debate”, the debate in question was a Westminster Hall debate, which is intended to give “more time for individual MPs to raise issues of importance to them with a series of Private Members’ adjournment debates” and is not the same as a full-dress debate in the Chamber in Government or Opposition time. The purpose of the debate (which took place on 12 March 2013) was for
“the Government to create a fair, independent process for arbitrating between the claims of York and Leicester, and other places, such as Westminster Abbey, just across the road … where Anne Neville, King Richard’s wife, is buried”.
Although no vote is taken after such debates, Hugh Bayley (Lab, York Central) indicated that he had received a reply from Professor Holger Schutkowski, the chair of the Advisory Panel on the Archaeology of Burials in England, (APABE), saying that
“APABE has no views about where the remains should be re-interred or how the place of burial should be marked. APABE recommends, however, that the views of those that have justifiable close links with the deceased, be they historical, cultural or religions, require balanced consideration as, for instance, set out in recent DCMS, [Department of Culture, Media & Sport], Guidance. Consideration should also be given to the rights, Canon Law and responsibilities of the Church of England as the legal successor of the Church into whose keeping the body was given at burial.”
This echoes concluding advice given by the court [para 41].
Paragraph 33 of the judgment states that
“[i]t is clear from European jurisprudence that the views of a deceased person as to his funeral arrangements must now be taken into account (per Cranston J in R (Burrows) v HM Coroner for Preston  EWHC 1387 (Admin)). For this reason, and in view of the unusual circumstances of this claim by traceable descendants of a famous Royal figure, it may be said that Article 8 has some role to play” [emphasis added].
Article 8 having “some role to play” is substantially less forceful than “Article 8 is engaged”, particularly since Article 8 is a qualified rather than an absolute right. However, there are more substantial problems when applying R (Burrows) v HM Coroner for Preston
That case concerned issues that a coroner should take into consideration when deciding who might determine where a body is to be buried. This would normally be determined under Rule 22 §1 of the Non Contentious Probate Rules 1987 which, for cases of intestacy, lists a hierarchy from (a) the surviving husband or wife through to (h) uncles and aunts of the half blood and the issue of any deceased uncle or aunt of the half-blood who died before the deceased. In his Guidance for coroners, Cranston J states [at paras 28 and 29]:
“At the present, where there is no executor or administrator, [coroners] will simply apply the order of priority set out in Rule 22 of the Non Contentious Probate Rules to decide who has the right to claim the body of a deceased person. However, if someone lower in that order of priority, or not there at all, advances a claim, they will need to consider it. It may be that in those cases they will be able to effect a compromise.”
“[w]here a compromise is not possible, coroners need to make a decision. They do this by asking themselves two questions, first, are there any special circumstances which weigh in favour of varying the order of priority set out in Rule 22. Consistently with the jurisprudence of the European Court of Human Rights, special circumstances include the wishes of the deceased person, if there is clear evidence of those wishes. Given that there are special circumstances and these weigh in favour of varying the order of priority in Rule 22, a second question they need to ask is whether it is necessary or expedient to do so” [emphasis added].
Thus, under the circumstances of the case:
(a) the wishes of the deceased person become relevant inter alia where there is no one with the right to claim the body; and, if so
(b) this only becomes effective it there is clear evidence of the wishes of the deceased person.
R (Burrows) v HM Coroner for Preston was guided by the ECtHR judgement in the Swedish case Elli Poluhas Dödsbo v Sweden  ECHR 38. In reviewing the Swedish domestic law, the court noted [para 16] the criteria to be adopted where the deceased’s wishes were not known . However, national authorities are afforded a wide margin of appreciation in such matters [para. 28] and there is no direct read-across of this aspect of Swedish domestic law. But were the Swedish approach to be applicable within the UK, the result would involve a complex balancing exercise of the various claims regarding Richard III’s affiliations that have been made to date.
As we indicated in a recent news round-up, we would not wish to make any predictions regarding the outcome of the judicial review. However, in view of the different interested parties highlighted in the judgment and elsewhere, we note that it would be pertinent to consider the correspondence that has taken place with the Royal Household, the Richard III Society, and Michael Ibsen, whose genealogical records have been subject to academic scrutiny and whose mitochondrial DNA was instrumental in the identification of Richard III’s remains.
Furthermore, the Members of the Chapter and the College of Canons of the Cathedral of St Martin, Leicester, and the Members of the Chapter and the College of Canons of the Cathedral and Metropolitan Church of St Peter, York are named as first and second interested parties. Given the possibility that the Church of England might need to justify a decision to bury Richard III in Leicester (or York), it would be prudent for it to formulate its position sooner rather than later. The Note prepared by the Rt Revd Christopher Hill, then Bishop of Stafford, on the theology of burial  at the request of the Court of Arches in relation to Re: Blagdon Cemetery, provides an example of the “high-level”, non site-specific guidance that might be prepared.
 King Alfred the Great, (849 to 26th October 899), is regarded by many as the “first King of England”, although it is believed that he himself did not use this title.
 R (Argyll Group plc) v Monopolies and Mergers Commission  1 WLR 763 and 773; R (Greenpeace Ltd) v Her Majesty’s Inspectorate of Pollution  4 All ER 329; R (Residents Against Waste Site Ltd) v Lancashire County Council  EWHC 2558 (Admin); R (Blackfordby and Boothorpe Action Group Ltd) v Leicestershire County Council; and Walton v The Scottish Ministers  UKSC 44; 2012 SLT 1211 Lord Reed at paragraphs  to ).
 Consent for Parks, Gardens & Battlefields; Conservation Area Consent; Ecclesiastical Exemption; Listed Building Consent; Marine Planning; Planning Permission; Protected Wreck Sites; Scheduled Monument Consent; Tree Consents.
 Under the Suppression of Religious Houses Act 1535 (27 Hen 8 c 28), (a.k.a. the Act for the Dissolution of the Lesser Monasteries), which according to the preamble was introduced to address the “manifest sin, vicious, carnal and abominable living is daily used and committed among the little and small abbeys, priories, and other religious houses of monks, canons, and nuns, where the congregation of such religious persons is under the number of twelve persons” [emphasis added].
 This is a somewhat a stretch of the imagination given the time involved in: the positive identification of the remains as Richard III, authorisation of their re-interment under Church legislation and the physical processes involved in re-interment. However, such issues are not of direct relevance to the judicial review application.
 This is not the case for the York Minster e-petition, despite its 27,752 signatures.
 “The deceased’s own wishes should serve as guidance for the transfer decision. When such wishes are not known, regard should be had to the deceased’s attachment to the place where he or she is buried. As a rule, removal should not be permitted if the deceased is buried in a place where he or she was active for a large part of his or her life. If, however, the cemetery is situated in a place where the deceased lived only temporarily, removal may be permitted.
In addition, the deceased should have had some connection with the place to which the remains are to be removed. According to the explanatory notes (ibid pp 36-37), examples of such a connection could be that the deceased grew up in that place, had relatives or a family grave there, or perhaps had a holiday home there.”
 An extended form of the Note is published as: C Hill, “A Note on the theology of burial in relation to some contemporary questions”, (2004) 7 Ecc Law Soc (35) 447.
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