Since we posted Richard III reburial: the decision for judicial review, (22 August), a number of commentators have reviewed different aspects of the judgment of Haddon-Cave J which 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).
Their observations have become more pertinent following the reported announcement that the Ministry of Justice is working with lawyers to mount a challenge with a view to overturning the High Court’s decision to grant permission for a judicial review . Below we summarise some of the issues that have been raised in respect of the judgement, and the additional analysis of some of the cases cited. In terms of “show stoppers”, the standing of the Plantagenet Alliance and the interpretation of CPR 54.5 are critical, but if these criteria are satisfied, the argument turns to the need for the MoJ to consult, and the manner in which it did so.
MoJ and Judicial Review
In our earlier post, we noted that 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. However, whilst changes to the legislation, if any, will not be incorporated in time to influence the on-going proceedings, the Justice Secretary, Chris Grayling, is reported to be of the opinion that “… it is ludicrous that judicial reviews are used for cases such as this. This is not what judicial reviews were intended for and is a complete waste of taxpayers’ money.” More importantly, he is said to be supportive of his Department’s actions, apparently despite the additional court time involved, and will also “vigorously defend” the decision to bury the remains of Richard III in Leicester.
Gordons, which is acting for the Plantagenet Alliance, is of the view
“[t]he ability to hold the executive to account is essential and is a corrective to the potential abuse of administrative powers and failure to implement decisions in a lawful manner. We should be careful that this important message is not lost in the noise of battle of the Wars of the Roses. Judicial review is very important. It matters.”
However, neither the Cathedral nor the Alliance will welcome the additional delay before the JR proceedings in view of its impact on the planned programme for re-interment, and the additional costs , respectively. It is understood that the Ministry of Justice has already sought to overturn the Protective Costs Order, (PCO).
Haddon-Cave J cited R (Residents Against Waste Site Ltd) v. Lancashire County Council  EWHC 2558 (Admin) as one of the authorities supporting the standing of the Plantagenet Alliance. The case concerned a company formed by residents who objected to the grant of planning permission for a waste facility, for which it is well-established that such groups have standing to challenge permissions of this type, [para.16]. The company Residents Against Waste Site Ltd, (RAWS Ltd), was formed after the planning decision had been announced, and is therefore a useful comparator with the Plantagenet Alliance, with particular reference to: the status of the individuals involved in the group, before and after the formation of RAWS Ltd; the reason for forming the group; and the timing of the petition for judicial review.
The group RAWS existed before the announcement of the planning permission, during which it had “engaged in various awareness and fundraising activities” including a formal presentation to the County Council. The object of forming the company RAWS Ltd was primarily financial, in order to limited the liability of its individual members, [para 15]. Mr Justice Irwin observed, [para.14], that RAWS Ltd comprised local residents and borough councillors who, as individuals, would have sufficient standing and that although they formed an incorporated association, these individuals and any unincorporated association formed of them, could properly bring this claim.
Whilst RAWS comprised a single specific group with interests in the waste site, the category of appropriate consultees with a potential interest in the reburial of Richard III is “potentially very wide” and includes, [para. 22(2)]
“(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.”
A Press Release from Leicester Cathedral on 12 September 2012, entitled “Leicester Cathedral delighted by news of human remains found”, indicated that it would “continue to work with the Royal Household, and with the Richard III Society”, suggesting that from an early date, these two group were “in the loop” of consultations, in addition to the MoJ. Further information will no doubt be made available following Haddon-Cave’s direction:
“[t]he First and Second Defendant [i.e. Ministry of Justice and the University of Leicester], shall, within 21 days, in accordance with their respective duties of candour, each give disclosure of all correspondence, notes and other documents relevant to (i) the circumstances surrounding the original application and grant of the Licence and (ii) all subsequent discussions and exchanges concerning the remains of Richard III and their re-interment.
However, given that the Church of England, through its ecclesiastical law and courts, is the only body that can give permission for Richard III to be buried in one of its cathedrals or churches, it could be argued that consultation need not have gone beyond those initially involved.
Timing of application by Plantagenet Alliance
In his post “Judicial Review: Richard III and the relativity of time”, Brian Wong, a litigator specialising in Judicial Review at Burges Salmon, has analyzed the timing of the application by the Plantagenet Alliance with reference to the Ministry of Justice Procedure Rules relating to Judicial Review, CPR 54.5, which state that a Judicial Review claim form must be filed promptly and, in any event not later than three months after the grounds to make the claim first arose.
Whilst some may query his interpretation, there is little dispute regarding the dates on which the relevant events occurred. There are also pertinent points in the RAWS Ltd judgement [paras. 25 and 26  ] concerning the aspects of the situation which should have been apparent to each side.
Wong contends that:
“ever since the University of Leicester’s own press release and media event of 24 August 2012, the world at large will have known that the exhumation related to the very high profile hunt for Richard III.
Since 3 September 2012, it should have been clear that the Justice Secretary had required the re-interment of the remains (even if they did belong to Richard III) without consultation.
Since 12 September 2012, it will have been known that, should they be the remains of Richard III, Leicester Cathedral would be making arrangements for re-interment.”
He suggests that in these circumstances, it seems to be “stretching the boundaries of CPR 54.5 for The Plantagenet Alliance to have waited 8 months to, in effect, challenge the conditions of re-interment recorded in an exhumation licence on 3 September 2012 and a public expression of intention from 12 September 2012 to comply with those conditions through re-interment at Leicester Cathedral.”
A comparison is made between the “extraordinary leeway” given to The Plantagenet Alliance and “the significantly stricter treatment” in R(o.a.o. Nash) v Barnet London Borough Council & ors, in which the Court of Appeal upheld the analysis that the key requirement for CPR 54.5 is when the claim first arose .
“Unfettered discretion of the Secretary of State”
In his post Richard III, “unfettered discretion” and the foundations of judicial review, Mark Elliott discusses Haddon-Cave J’s observations [paras. 20 and 21] concerning the discretion afforded to the Secretary of State by s25 Burial Act 1857, , which
“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”, [emphasis added].
“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.”
Elliott notes that whilst the “unfettered” nature of the discretion is tempered by the duty ro act rationally, he raises the question: “if Parliament has conferred upon the Secretary of State a truly unfettered discretion, can the courts legitimately impose obligations to act rationally and to consult?”, ”If the power conferred by Parliament is truly unfettered, then the executive is authorised by Parliament to do with that power whatever it wishes, and it would be unconstitutional for the courts – whether by invoking a common law duty to consult or otherwise – to interfere. “
Tom Hickman’s post The High Court Rides to the Aid of Richard III is supportive of the decision reached by Haddon-Cave J, and cites In Re Westminster City Council  AC 668 as supportive of the view that “a duty to consult requires a statutory or legitimate expectation hook”, subject to the two overriding duties of fairness and the duty to take into account all relevant considerations. He notes the judge’s comments [at para.34] that it is “obvious” there is a duty to “consult widely” arising “from this singular fact alone, [i.e. the remarkable, and unprecedented, discovery of a King of England of considerable historical significance]”, a discovery which “touches upon our history, heritage and dignity.”
With regard to the “legitimate expectation hook” on which to hang a duty to consult, we have noted that Human Remains Excavated from Christian Burial Grounds in England although 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”,
it 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 was drawn up between the English Heritage and the Church of England, although Home Office officials contributed to its production. It could therefore be argued that the MoJ was not bound by this Guidance.