They paved Plantagenet ‘n put up a parking lot
22 August 2013
The 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.
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 ). 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  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?
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