Should the question of where Richard III is to be reburied be referred to an independent panel of experts?
Note: This article is from the Guardian.
It is ironic that the Wars of the Roses appear to be returning whence they started,” said Mr Justice Haddon-Cave on 15 August. “Legend has it that John Beaufort and Richard Plantagenet picked the symbolic red and white roses in Inner Temple and Middle Temple gardens.”
The judge made his comments as he gave permission to bring judicial review proceedings in one of the most extraordinary cases ever to come before a court. What’s in dispute is the final resting-place of the only king of England to die in battle since 1066.
On 22 August 1485, Richard III was killed at Bosworth at the age of 32. His death ended the Wars of the Roses and the Plantagenet dynasty, bringing the middle ages to a full stop. Supporters of the new Tudor king, Henry VII, brought Richard’s body from Bosworth to the nearby town of Leicester and buried it at Gray Friars church.
That church was destroyed during the dissolution of the monasteries in 1538. But Richard’s distinctive skeleton remained undisturbed until 5 September 2012, when it was discovered by archaeologists from the University of Leicester under a municipal car park.
The university took the view that Richard III should remain in Leicester, with his remains being reinterred at the city’s cathedral. That view was challenged by Stephen Nicolay, a self-employed gardener and 16th great-nephew of the king through the line of Richard’s sister, Anne of York. Not unreasonably, Nicolay thought that Richard of York should be buried at York Minster. Together with some other collateral descendants he set up a campaign group, incorporated as the Plantagenet Alliance.
As one might expect, there are laws against digging up dead bodies. Generally speaking, you need a licence under section 25 of the Burial Act 1857. That used to be given by the home secretary. These days, it’s the responsibility of Chris Grayling, the justice secretary. In September 2012, his predecessor granted the university a licence to remove the remains of “persons unknown” from the car park and reinter them at Leicester cathedral, at a local museum or in a burial ground.
So the Plantagenet Alliance decided to challenge the justice secretary’s decision. Their grounds were simple enough. The 1857 act gives the secretary of state discretion to authorise exhumation and, by implication, reinterment. But he has to exercise his powers lawfully. That means, according to the alliance, that he has a duty to consult those affected by his decision.
These arguments were put to Grayling and dismissed by him. So the alliance sought to bring proceedings for judicial review. I can’t wait to see how his reaction is portrayed when Richard III Part Two comes to be performed on the stage. I suspect it was cold anger.
Grayling has recently held a consultation designed to “tackle the burden that the growth in unmeritorious judicial reviews has placed on stretched public services”. He was particularly concerned that the courts’ “wide approach to standing” – the question of who can bring a case – had “tipped the balance too far, allowing judicial review to be used to seek publicity or otherwise to hinder the process of proper decision-making”. Conceding a challenge by a campaigner to one of his own decisions was clearly the last thing he was prepared to contemplate.
So there was no chance he would take up Mr Justice Haddon-Cave’s eminently sensible suggestion that the question of where Richard III is to be reburied should be referred to an independent panel of experts. Instead, like the archaeologists, Grayling just kept digging.
The Plantagenet Alliance is not receiving legal aid. Instead, its claim case is being funded – partly on a conditional fee agreement – by its solicitors, the Leeds firm Gordons, and their barristers, Gerard Clarke and Tom Cleaver of Blackstone Chambers. If they lose, the lawyers will be paid nothing. If they win, they can recover their costs from the justice secretary and Leicester university, subject to a cap of £70,000.
If Grayling wins, he would expect the alliance to pay its costs – which its members cannot afford to meet. So Haddon-Cave granted the alliance a full protective costs order, which means they will not have to pay any of the government’s legal fees if they lose. As the judge explained, these orders are granted to allow claims for judicial review to be brought in cases that it is in the public interest for the courts to decide but which “would otherwise be stifled for lack of financial means”.
Grayling tried to appeal against the order but his lawyers made a procedural error and applied to the wrong court. He tried again, nearly four weeks after the time limit had expired, arguing that there was no public interest in a court challenge because the the public’s interests were entirely served by debate in the press and online. Haddon-Cave dismissed this argument as “flawed and heretical” before ordering the justice secretary to pay the costs of his unsuccessful application. Those costs will, of course, be paid by the taxpayer. Grayling’s attempt to blame the alliance for a “complete waste of taxpayers’ money” was therefore a classic example of chutzpah. Comments made on his behalf to sympathetic reporters are also likely to irritate the court. As Lord Pannick QC said in his speech to the Bar conference this month, “the days are long gone when lord chancellors sat in judgment on legal claims, particularly a claim to which he is the defendant”.
The justice secretary has briefed James Eadie QC for the full hearing on 26 November. As “treasury devil”, Eadie is the government’s senior independent lawyer and doesn’t come cheap. He will argue that a minister’s duty to consult arises only on well-recognised and specific circumstances, none of which apply to this case. There was no “legitimate expectation” of consultation, he says: it was not something that had ever been done before in exhumation cases. There was nobody whose interests would be adversely affected by the decision and so there was no need to “hear the other side”.
But the alliance’s solicitor, Matthew Howarth, says this case is different. “It was extraordinary to find the remains of Richard III under a council car park. It is perhaps even more extraordinary that the decision as to where the remains of this anointed king of England should be laid to rest was based upon the completion of a pro-forma ministry of justice application form with no wider consideration or consultation.”
Consultation is the only substantive issue to be decided by the high court. The judges are not being asked to decide where Richard III should be reinterred, an issue on which I remain indifferent. If the claim is successful, Grayling will merely be ordered to go away and think again. He could save the taxpayer a great deal of money by doing so now.
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