Richard III: fairness and public interest litigation

28 May 2014 by David Hart KC

The Plantagenet Alliance Ltd (R o.t.a) v. Secretary of State for Justice and others [2014] EWHC 1662 (QB) 23 May 2014 – read judgment

Some 527 years after his death, Richard III’s skeleton was found beneath a car park in Leicester. The Plantagenet Alliance, a campaigning organisation representing a group of collateral descendants, sought judicial review of the decision taken by the Secretary of State to exhume and re-inter the monarch in Leicester Cathedral without consulting them and a wide audience.

The case had become a bit of a stalking horse for Lord Chancellor Grayling’s plans to reform judicial review: see my post here. Grayling may have backed off for the moment from his specific plans to reform standing rules, though he still has it in for campaigning bodies participating in judicial reviews. As we will see, counsel for MoJ had a go at saying that the Alliance had no standing, but to no avail.

But MoJ had better points, and was successful overall. And this is the moral of the story. You cannot sensibly justify the bringing of entirely meritless judicial review. But it is wrong to seek to defeat a meritorious claim by relying on standing points, without considering the public interest of the underlying case. As I pointed out in my post, the irony of the cases chosen by MoJ last year to make its case that the standing rules were all very awful were ones where government had been behaving unlawfully.

The Alliance’s principal case was that there was an obligation on the part of the Ministry of Justice to revisit or reconsider the exhumation licence once the remains had been conclusively identified as those of Richard III.

The Divisional Court (three judges, including Haddon-Cave J who had given the case permission) unanimously rejected this argument on all grounds. It could not be said in public law terms that the Secretary of State failed to act as a reasonable or rational decision-maker when deciding not to revisit the exhumation licence in the light of the information which he already had. There was

no sensible basis for imposing a requirement for a general public consultation, with leaflets, on-line petitions, publicity campaigns, nor for advertisements trying to ascertain who is a relative and then weighing their views against the general public, when there are, in reality, only two possible contenders (Leicester and York)

So far, so straightforward.

But in reaching this conclusion, the Divisional Court set out with considerable clarity ([83] onwards) the English common law principle of fairness, in various of its incarnations. The present context was an excellent example of its application. The court was construing the Burials Act 1857 –

a paradigm of a sparse Victorian statute

It does not contain any procedural requirements which may be connected with the obtaining of licences. But the statute is supplemented by the general principle of common law fairness in dealing with those who may be affected, out of which such fair procedures may be implied. The more complicated the statute and the more procedures are expressly provided for, the less room there is for implying additional machinery. The exercise of implying fairness rules was one essentially of intuitive judgment [94].

The three aspects of fairness said to be in play here were

• the duty to consult
• the duty to carry out sufficient inquiry
• the duty to have regard to relevant considerations – which added nothing new to the case.

The law on each is summarised, the first in 10 propositions at [98] of the judgment, the second in 6 propositions at [100], and the third at [101]. If the whole territory is unfamiliar, do read these paragraphs, but I will do my best to summarise the most important of them.

Duty to consult?

The starting point for consideration of any duty to consult is that there is no general duty to do so (Proposition or P1 in [98]). There are four main circumstances (P2) where a duty may arise,

• where there is a statutory duty,
• where there is a promise to consult,
• where there is an established practice of consultation, and
• the exceptional case where a failure to do so would lead to “conspicuous unfairness”.

A duty to consult is not open-ended: P4. It will not be required as part of a statutory function if it would require a specificity which it is for a legislator not the courts to impose: P5. It will not be required if a democratically elected body has decided not to impose such a duty: P6. The doctrine of a legitimate expectation of consultation does not arise merely from the scale or context of particular decisions; that would lead to open-endedness, and no public body would know where it was: P9. Even if a legitimate expectation did arise, it must be shown that there was unfairness amounting to an abuse of power: P10.

Applying this to the facts, there was no established practice of consultation [153], and exceptionality did not simply arise because of the (probably unique) facts of disinterring a long-lost English king [154]. The exceptionality argument also fell foul of P4 and P9 open-endedness for any consultation process.

Duty to carry out sufficient inquiry/Tameside argument

This formulation derives from Lord Diplock’s speech in the 1977 Tameside case, where he formulated the issue as whether the decision-maker did

ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable to answer it correctly

The Court emphasised that this was not a back-door way of imposing a duty to consult [137]; it had different rules, set out at [100]. The test for a Tameside duty is one of rationality, not of process, the test is a higher  one than whether deciding consultation was required, and the Tameside information must be of such importance or centrality, that its absence renders the decision irrational [139]

A decision-maker need do no more than take reasonable steps to inform himself: P1 at [100].

And it was for him to decide what those were, subject only to an (onerous) Wednesbury challenge to that rationality: P2.

A court should not intervene merely because it considered further inquiries would have been sensible or desirable: P3.

It should ask itself – what material did the authority have, and only strike the decision down if no reasonable authority could suppose that those inquiries were sufficient: P4.

That last may involve consultation, but not as an issue of procedural fairness, but because its duty to inform itself sufficiently: P5.

The wider the discretion on a decision-maker, the more important it is that he has all relevant material before him: P6.

The Court looked at the information before the SoS, including the then stated preferences for where Richard III should be re-interred, and the rival views expressed in the media. This information included the fact that there could be no close relatives. The prime mover of the Alliance was a 16th generation great-nephew. Richard III had no surviving children at his death, but the potential number of descendants might number in the millions.

What new factor might then emerge to give the SoS more information? Answer, said the Court,  nothing significant: [146]. Hence no Tameside basis for quashing the decision arose.

Standing

One can see that the remoteness between the Alliance’s members and the issue was of potential relevance to both consultation and Tameside issues. But it did not operate as a knock-out blow as it would on a standing argument. The Court gave that argument short shrift at [80]-[82]:

80….The Defendants insist that the Claimant lacks a sufficient interest in the subject matter and therefore has no standing (locus standi)….

81. A claimant in an application by way of judicial review must have “sufficient interest in the matter to which the application relates” (section 31(3) of the Senior Courts Act 1981). The phrase “sufficient interest” has traditionally been given a wide meaning. The direction of travel of the authorities……has been an increasingly catholic view of locus standi (see e.g. R(Residents Against Waste Site Ltd) v. Lancashire County Council [2007] EWHC 2558 (Admin)).

82, It is fair to say that the relationship of Mr Nicolay and the other collateral relatives to their ancestor, Richard III, is, on any view, attenuated in terms of time and lineage. The Claimant’s interest – indeed, that of the 16^th, 17^th and 18^th generation descendants – may not suffice for personal standing. However, the points raised have a broader public interest sufficient for the Claimant to have standing in this case as a public interest litigant.

The underlined words are probably not what Grayling wants to read. He would like there to be rules for personal standing, and nothing else.

Conclusion

In the end, it appears to have been all one-way traffic against this claim. But I do recommend that public lawyers (exam-taking, aspirant, or established) read the pellucid material on fairness. And I hope that the Lord Chancellor will have read and reflected on the very to-the-point 3 paragraphs on standing.

Oh, and if anyone’s 15th century English history is rusty or non-existent, the Court gives a good summary of our monarch’s life starting at [8]. Headlines something like this. Father killed in battle when he was 8. Brother seized the throne when Richard was 9. Fled to Burgundy when he was 17. Returned to command the vanguard of the Yorkist armies in two major victories when a mere 18. On the throne at 30, and dead at 32, and

so all besprung with mire and filth  was brought to a church in Leicester for all men to wonder upon, and there irreverently buried

as one chronicler put it.

Ironic that people should now be fighting about where he is reverently to be buried. But Leicester is firmly in the ascendant over York for that honour.

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