They paved Plantagenet ‘n put up a parking lot

22 August 2013 by

p180vajuda12ijjc57ac1qhh37s1The Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and others, Haddon-Cave J, 15 August 2013  read judgment

I spent long hot summers in the 1970s digging up the remains of Saxons and prehistoric Greeks. In Greece, skeletons were good time-consuming cannon-fodder for incompetent interns, whilst real archaeologists got on with the serious stuff of looking for walls and post-holes. So I can understand the impulse which took the Plantagenet Alliance to court about the bones of Richard III with its diagnostic severe scoliosis. 

The judge gave the Allliance permission to seek judicial review of the Secretary of State’s decision about re-burial. But I question the result –  does the Alliance really have a legal right to be consulted about where Richard III is to be re-buried?

The story begins 528 years ago, this day, on 22 August 1485, when the horseless monarch was cut down on Bosworth Field, and the Plantagenets lost the Wars of the Roses to the Tudors. Richard was buried in Grey Friars Church, Leicester, itself cut down in the Tudor Henry VIII’s dissolution of the monasteries. Fast forward hundreds of years. Leicester City Council (obviously under a Tudor-inspired administration),  constructed a municipal car park – sorry, Joni, about the title – to compound the indignity. But then LCC, in conjunction with diligent members of the Richard III Society and the local archaeological service, sought to make amends  by authorising this scrupulously carried out investigation. Richard’s skeleton was found in 2012, and his identity was  confirmed in February 2013 by testing of his mitochondrial DNA.

But what now to do with his remains? In September 2012, the University of Leicester was granted a licence by the Secretary of  State for Justice to exhume various remains and to place them either in the local museum or re-inter them. This was the decision under challenge, taken under the Burial Act 1857.

The claimant in the challenge is a campaigning organisation incorporated on 21 March 2013 by the 17th great-nephew of Richard III, Mr Stephen Nicolay. It represents a group of collateral descendants of Richard III who are aggrieved at the decisions taken regarding his re-interment without consultation. It says that the licence should have included a condition requiring consultation about re-interment, and that the University should have consulted before arranging the re-interment at Leicester Cathedral.

One would not quarrel with the finding that the claimant had sufficient interest and standing to challenge the proceedings, as this has been interpreted by the courts – though the Government’s threatened proposals to reform judicial review – see post here– would lead to a challenge in such terms being automatically dismissed. Nor would I disagree with the view that it might have been politically sensible to see what people said about where he should be reburied, and there is “soft” guidance about it being good and ethical practice to do so.

But I do question the judge’s conclusion that there may be a duty in law to consult.  Look at the two key passages where he summarises the submissions which he accepts as being arguable:

the core submission is that the Secretary of State for Justice had a duty in law to consult ‘relevant interests’, including descendants, as to how, and where, the remains of Richard III should be reburied, but he failed to comply with that duty prior to issuing the Licence or at any time thereafter. The Claimant submits that the ‘relevant interests’ are: (i) the citizens of the UK who have an interest in the fate of the rediscovered body of a historically important anointed former monarch of the realm; (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.

ad

Tenth, 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. The obvious duty to consult widely arises from this singular fact alone. It was obvious that there would be intense, widespread and legitimate public interest and concern in many quarters as to the treatment and final resting place of Richard III’s remains.

Hmm. That the public might be intensely interested in the discovery of Richard’s skeleton is plain. But does it even begin to follow that the precise nature of his re-interment gives rise to a legal duty to consult? That job is vested by statute in the Secretary of State for Justice, who will doubtless take into account whether the proposal involves reasonably sympathetic re-burial. But must the SoS must seek and take into account the interests of (in truth) very remote relatives who form part of the Alliance, let alone the desire of Leicester or indeed York to have Richard re-buried in Leicester or York respectively – with the commercial interests that each have in maximising their tourism?  For the latter, one cannot help thinking of the unsavoury disputes which have broken out in the Mandela family about his resting-place – see here.

Human rights get a brief mention:

In the absence of a close personal or even close familial relationship, it is normally difficult to see how Article 8 rights can be directly engaged (see R(Rudewicz) v. Secretary of State for Justice (supra) at paragraph [30]). It is clear from European jurisprudence, however, 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 [2008] 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.

Tentative, but questionable all the same. Why should you have an Article 8 right if your long-dead dead relative is famous, but not if he is obscure?

In summary, let’s keep the lawyers out of this historical dispute. And lay quickly to rest our late troubled king (d.o.b 2.10.1452).

And a thought for our current royal heirs in case they contemplate more children. What about calling the next boy Richard – in a reconciliatory move towards their Plantagenet predecessors?

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

6 comments


  1. To be frank, once you cut through the BS this all strikes me as amounting to nothing more than an unseemly contest over the location of a potential tourist trap.

  2. Paul Dowson says:

    The key issue is what Richard would have wanted? ‘Richard, is it to be York Minster or Leicester Cathedral?’ Yes, we thought you’d choose England’s second city. How do I join the Plantagenet Alliance to safeguard Richard’s (likely) choice?

  3. Andrew says:

    Oh b*gger, that’s Henry VII . . .

  4. Andrew says:

    Nobody is descended from him unless he had any little accidents not known to history. Descended from his siblings and cousins, yes; but he had only child, a son who died young.

    The correct place for the funeral is of course not Leicester or York but the Abbey. Nenry VII’s Chapel. Fingers in the eye of that usurping bastard Lancastrian.

  5. squawk parrot says:

    I read somewhere the other day that the late King has almost a million descendants. Are we to ask their opinion in a vote. But first they will have to all be DNA tested to ensure legitimacy in all respects. A legal point that has to be a requirement when deciding on the internment of a monarch. Ligitimacy not only in the DNA sense, afterall what self respecting King would wish to acknowledge their bastard heirs. Surely the exercise wouldwbe prohibitably expensive?

  6. “But I question the result – does the Alliance really have a legal right to be consulted about where Richard III is to be re-buried?”

    So do I. If, in R(Rudiewicz), Fr Jarzebowski’s first cousin once removed had fewer rights in regard to Fr J’s exhumation and reburial than did the Provincial Superior of the Marian Fathers (Fr J’s religious order) then I fail to see in what way the interests of the umpteenth-generation collateral descendants of Richard III can realistically be engaged in this particular set of circumstances. For all we know, given the size of the population of England in 1485 or thereabouts and the fact that 528 years have passed, you or I might be descended from him as well.

    I’m not saying that the overall decision is necessarily wrong but, with great respect to His Lordship, that particular point might better have been left on one side.

Leave a Reply

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:

Commissioning Editor:
Jasper Gold

Assistant Editor:
Allyna Ng

Editors:
Rosalind English
Angus McCullough KC
David Hart KC
Martin Downs

Jim Duffy
Jonathan Metzer

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

Tags


A2P1 Aarhus Abortion Abu Qatada Abuse Access to justice administrative court adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Appeals Arrest Article 1 Article 1 Protocol 1 Article 2 article 3 article 3 protocol 1 Article 4 article 5 Article 6 Article 7 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos Assisted Dying assisted suicide asylum Attorney General Australia autism benefits Best Interest Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Business care orders Caster Semenya Catholicism Chagos Islanders charities Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Closed Material Proceedings Closed proceedings Coercion common law confidentiality consent conservation constitution contempt contempt of court Control orders Copyright coronavirus Coroners costs court of appeal Court of Arbitration for Sport Court of Protection covid crime Criminal Law Cybersecurity Damages Dartmoor data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability discipline disclosure Discrimination disease divorce DNA domestic violence DPA DSD Regulations duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment environmental rights Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice euthanasia evidence extradition extraordinary rendition Extraterritoriality Fair Trials Family family law Fertility FGM Finance findings of fact football foreign criminals foreign office Foster France freedom of assembly Freedom of Expression freedom of information freedom of speech Free Speech Gambling Gay marriage Gaza gender Gender Recognition Act genetics Germany gmc Google government Grenfell Hate Speech Health healthcare high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration immunity India Indonesia information injunction injunctions inquest Inquests international law internet interview Inuit Iran Iraq Ireland Islam Israel Italy IVF Jalla v Shell Japan Japanese Knotweed Journalism Judaism judicial review jury jury trial JUSTICE Justice and Security Bill Land Reform Law Pod UK legal aid legal ethics legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice Mirror Principle modern slavery monitoring murder music Muslim nationality national security NHS Northern Ireland NRPF nuclear challenges nuisance Obituary open justice ouster clauses PACE parental rights Parliament parliamentary expenses scandal Parole patents Pensions Personal Data Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Private Property Procedural Fairness procedural safeguards Professional Discipline Property proportionality Protection of Freedoms Bill Protest Protocols Public/Private public access public authorities public inquiries public law reasons regulatory Regulatory Proceedings rehabilitation Reith Lectures Religion Religious Freedom RightsInfo Right to assembly right to die Right to Education right to family life Right to life Right to Privacy Right to Roam right to swim riots Roma Romania Round Up Royals Russia sanctions Saudi Arabia school Schools Scotland secrecy secret justice Section 55 separation of powers Sex sexual offence sexual orientation Sikhism Smoking social media Social Work South Africa Spain special advocates Sports Sports Law Standing statelessness Statutory Interpretation stop and search Strasbourg Strategic litigation Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture Transgender travel travellers treaty TTIP Turkey UK UK Constitutional Law Blog Ukraine UK Supreme Court Ullah unduly harsh united nations unlawful detention USA US Supreme Court vicarious liability voting Wales war War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks Wild Camping wind farms WomenInLaw World Athletics YearInReview Zimbabwe

Tags


A2P1 Aarhus Abortion Abu Qatada Abuse Access to justice administrative court adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Appeals Arrest Article 1 Article 1 Protocol 1 Article 2 article 3 article 3 protocol 1 Article 4 article 5 Article 6 Article 7 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos Assisted Dying assisted suicide asylum Attorney General Australia autism benefits Best Interest Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Business care orders Caster Semenya Catholicism Chagos Islanders charities Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Closed Material Proceedings Closed proceedings Coercion common law confidentiality consent conservation constitution contempt contempt of court Control orders Copyright coronavirus Coroners costs court of appeal Court of Arbitration for Sport Court of Protection covid crime Criminal Law Cybersecurity Damages Dartmoor data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability discipline disclosure Discrimination disease divorce DNA domestic violence DPA DSD Regulations duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment environmental rights Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice euthanasia evidence extradition extraordinary rendition Extraterritoriality Fair Trials Family family law Fertility FGM Finance findings of fact football foreign criminals foreign office Foster France freedom of assembly Freedom of Expression freedom of information freedom of speech Free Speech Gambling Gay marriage Gaza gender Gender Recognition Act genetics Germany gmc Google government Grenfell Hate Speech Health healthcare high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration immunity India Indonesia information injunction injunctions inquest Inquests international law internet interview Inuit Iran Iraq Ireland Islam Israel Italy IVF Jalla v Shell Japan Japanese Knotweed Journalism Judaism judicial review jury jury trial JUSTICE Justice and Security Bill Land Reform Law Pod UK legal aid legal ethics legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice Mirror Principle modern slavery monitoring murder music Muslim nationality national security NHS Northern Ireland NRPF nuclear challenges nuisance Obituary open justice ouster clauses PACE parental rights Parliament parliamentary expenses scandal Parole patents Pensions Personal Data Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Private Property Procedural Fairness procedural safeguards Professional Discipline Property proportionality Protection of Freedoms Bill Protest Protocols Public/Private public access public authorities public inquiries public law reasons regulatory Regulatory Proceedings rehabilitation Reith Lectures Religion Religious Freedom RightsInfo Right to assembly right to die Right to Education right to family life Right to life Right to Privacy Right to Roam right to swim riots Roma Romania Round Up Royals Russia sanctions Saudi Arabia school Schools Scotland secrecy secret justice Section 55 separation of powers Sex sexual offence sexual orientation Sikhism Smoking social media Social Work South Africa Spain special advocates Sports Sports Law Standing statelessness Statutory Interpretation stop and search Strasbourg Strategic litigation Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture Transgender travel travellers treaty TTIP Turkey UK UK Constitutional Law Blog Ukraine UK Supreme Court Ullah unduly harsh united nations unlawful detention USA US Supreme Court vicarious liability voting Wales war War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks Wild Camping wind farms WomenInLaw World Athletics YearInReview Zimbabwe

Discover more from UK Human Rights Blog

Subscribe now to keep reading and get access to the full archive.

Continue reading