The case concerning reinterment of Richard III would have been one of the most interesting for years.
It was the case that every judge wanted to try and every lawyer wanted to appear in, if necessary for nothing. At issue were the mortal remains of Richard III, found under a municipal car park in Leicester more than half a millennium after he was killed in battle at nearby Bosworth.
Where should the king be reinterred? Leicester? That was certainly what the city’s university thought and it was its archaeologists who had identified the king’s distinctive skeleton. Chris Grayling, the justice secretary whose predecessor had granted the university an exhumation licence, agreed.
But that was not the view of Stephen Nicolay, a self-employed gardener and 16th great-nephew of the king through the line of Richard’s sister, Anne of York. Nicolay wanted the king’s remains returned to York.
Of course, it was not up to him. The decision was apparently one for the justice secretary. But, said the king’s collateral descendants, acting through a company they called the Plantagenet Alliance, Grayling was required to consult those with an interest in the case. In the case of a king, that must include the public.
Not so, said Grayling. His counsel James Eadie QC told the High Court that the justice secretary was under no such duty. Ministers had never consulted before in exhumation cases.
That approach was ridiculed by Gerard Clarke, counsel for the Plantagenet Alliance. Grayling was relying on the principle of ‘finders keepers’, he argued. ‘The public law of England is not the law of the playground.’
In granting the alliance permission to seek judicial review, Mr Justice Haddon-Cave had urged Grayling to refer the issue to an independent panel of experts. But that was the last thing the justice secretary was prepared to do. At the time, he was consulting on plans to limit judicial review. Grayling blamed the courts for taking a ‘wide approach to standing’ – not requiring claimants to demonstrate a close personal interest in cases they brought. He was hardly going to concede what looked like just such a case.
Then a new actor entered the stage. Applying successfully for permission to be joined as an interested party, Leicester City Council said it had allowed its car park to be dug up on the understanding that the king’s remains, if found, would be reinterred in Leicester. Without that, it would not have given permission.
On 19 November, the council filed a written argument describing itself, somewhat mysteriously, as the ‘legal sentinel’ of Richard’s remains. It produced more than 200 pages of evidence in which it referred to an agreement with Leicester University – subsequently disputed – that the council would decide what should happen to the king’s remains if they were found. It had also made contingency plans for a consultation.
In that case, said the alliance, we need to make the council a defendant – alongside the university and the justice secretary. The court should have before it all the relevant decision-makers.
No thank you, said the council when battle royal commenced at the High Court last Tuesday. The council had not made a final decision about reinterment, it said. It had not even made a decision about consultation. In any case, the alliance had left it far too late.
Those arguments failed to impress a three-judge court. ‘We are satisfied that there is clearly an issue to be determined as to whether or not Leicester City Council has a role to play as a decision-maker,’ Lady Justice Hallett announced.
But there was no time to decide that and resolve the substantive challenge during the single day set aside for the hearing. The case would have to be adjourned until 2014. Diaries were consulted. Everyone looked rather glum.
Suddenly, counsel for the council announced that his clients were prepared to embark on a consultation straight away. Haddon-Cave, unsure if he had heard correctly, asked Norman Palmer QC to repeat his offer. Hallett said it felt as if she was in Alice in Wonderland.
Eadie, for the justice secretary, began to brighten. Sensing a way out for his client, he encouraged Leicester council to take as long as it needed for the consultation. Grayling could extend the time available for reinterment, he said. There was no need for a further hearing until the consultation was over.
Clarke, for the alliance, also welcomed the move. ‘There may be the possibility still of resolving this case without the further intervention of the court,’ he said. A consultation was the best his clients could have hoped for, even one conducted by an interested party.
So it looks as if we shall soon be able to tell Leicester council what we all think. Sadly for the judges, though, they have probably buried one of the most interesting cases any of them was likely to hear.