Common law duty to consult on Richard III's reburial

It is "plainly arguable" that there was a common law duty on the justice secretary and the University of Leicester to consult on the reburial of Richard III, the High Court has held.

The court heard that on 3 September 2012, the day before he was replaced by Chris Grayling in a cabinet reshuffle, justice secretary Ken Clarke granted a licence to Leicester University to remove the remains.

They were found in a council car park near the site of Gray Friars Church in Leicester, where Richard's body was taken after the Battle of Bosworth.

The licence obtained by the university under Section 25 of the Burials Act 1857, referred only to "persons unknown". However, the university's archaeological service announced on 12 September 2012 that preliminary investigations indicated the remains were Richard III, which was confirmed the following February.

Delivering judgment in R(on the application of the Plantagenet Alliance) v Justice Secretary and the University of Leicester [2013] EWHC B13 (Admin), Mr Justice Haddon-Cave said there were good reasons why no challenge was made until the DNA results were obtained.

He said the Plantagenet Alliance, which he described as a "group of collateral descendants of Richard III who are aggrieved at the decisions taken regarding his re-interment without consultation", did have 'sufficient interest' to bring the challenge.

Haddon-Cave J said although the justice secretary had unfettered discretion under the Burials Act, he was under a duty to "act rationally and in accordance with the general law".

He said the Alliance had raised arguable propositions regarding the legitimate expectation of a consultation, and the wide potential categories of consultees from the citizens of this country to Richard III's living descendants, ecclesiastical and civic bodies and the Queen.

The judge said other arguments were equally arguable, such as the justice secretary's failure to consult prior to issuing the licence and Grayling's failure to revisit the decision, together with the university's decision to make arrangements for a reburial in Leicester Cathedral without consultation.

Haddon-Cave J said it was not clear why Clarke did not follow the English Heritage on the treatment of human remains excavated from Christian burial grounds.

He said there was evidence of a plan by the university to consult parties at an early stage, but this "appears to have been quietly dropped".

The judge also said that, belatedly, the MoJ sought in April 2013 to facilitate a meeting of interested parties, including the Richard III Society, the Church of England and the Queen, but the meeting was postponed following the launch of the judicial review.

Haddon-Cave J argued that Article 8 may also have some role to play, both in terms of "the views of the deceased person as to his funeral arrangements" and a claim by "traceable descendants of a famous royal figure".

He accepted that the case was unprecedented and involved the discovery of remains of a King of England who "died fighting a battle which brought to an end a civil war which divided his country", resulting in an "obvious duty to consult widely".

Haddon-Cave J granted the application for judicial review on all grounds.

He recommended that to avoid a "legal tussle" which would be "unseemly, undignified and unedifying", the matter should be referred to an independent panel of experts and Privy councillors.

A spokeswoman said the MoJ would "vigorously defend this judicial review".

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