I have read the judgement of the High Court in the matter of the reburial of King Richard III and, frankly, find some of it startling. I have a law degree, so am interested in the legal aspects of the case as well as the historical context. This is significantly different to practising law, so my comments are my own opinion and I would defer to those more learned in such matters.
The intention of this is not to offend. I have thought carefully about posting it at all because the arguing needs to stop, not be perpetuated, and I fear that may be precisely what this has the effect of doing. That said, it is perhaps an opportunity to draw my own line under things. I shall try to distil the 40 page judgement and offer my thoughts on the matter, for what they may be worth.
The Judicial Review was asked by The Plantagenet Alliance Ltd to examine the legality of the Ministry of Justice’s grant of an exhumation licence for up to six sets of human remains at the site of the Grey Friars Priory, where it was believed Richard III had been interred. This was never, and could never, be about the correct place to inter the remains in terms of selecting a city. That is not a matter for the courts. This is an important distinction. The outcome of the case was never going to be a court instruction to reinter the remains in York, or anywhere else.
Paragraph 1, in the second sentence, states that “His death marked the end of the Middle Ages”. This has always been a prevailing view, but not a statement of fact in a linear, dated sense. I can’t help wondering whether this end of the Middle Ages being dated by the court to 22nd August 1485 will ever prove significant as it becomes absorbed by the amorphous, hoarding nature of the English Common Law. Paragraph 23 also confidently dates the end of the Wars of the Roses to the same date. I might dispute that, too.
The judgement opens with a summary of the history of Richard III’s life. Even this, though, cannot be recounted accurately. Paragraph 15 refers to Clarence’s trial and execution in 1482 when this occurred in 1478. Paragraph 16 refers to Richard’s journey from Yorkshire to London in 1483 after King Edward’s death “with Lord Hastings”, who was in fact already in London. It seems that even within the judgement of a court of law, the facts of Richard’s life can be muddled. I am nitpicking, though, and these fact are not, perhaps, material, though they are symptomatic.
The legal background provided to the Judicial Review made for very interesting reading, not least because it highlighted how easily this could have been avoided and what a doomed distraction it was. From January 2011, when initial contact was made with the Ministry of Justice (MoJ) by Ms Langley, the MoJ stated that a licence would be conditional upon the satisfaction of certain concerns, including “what arrangements are proposed to deal with the remains; whether they might command public confidence and whether there are, or might be, objections from any legitimate quarters” (Paragraph 31). The MoJ pointed out that there were “potential descendants, so this would raise greater sensitivities” (Paragraph 31). In answer to these concerns, the MoJ received from Ms Langley the “Reburial Document” describing a “potential way forward” as “reburial in Leicester Cathedral” (Paragraph 32).
When approaching University of Leicester Archaeological Service (ULAS), Ms Langley apparently advised Mr Buckley that after discussions with representatives of the Palace, the Duke of Gloucester, Leicester City Council, Leicester Cathedral and the Richard III Society, “all were content with the proposal for re-interment in the Cathedral” (Paragraph 33). Mr Buckley agreed as this approach was in line with archaeological best practice.
Three months later, in April 2011, at a meeting with ULAS and the Council, “Ms Langley again made clear her desire for the remains of Richard III, if found, to be re-interred in Leicester Cathedral” (Paragraph 35). At this same meeting, the real core of the trouble that was to follow seems to have been exposed. The Council’s Head of Arts and Museums stated that she thought there was “a less than 1% chance” of finding Richard III (Paragraph 35). Working on this assumption seems, to me, both flawed and fatal. How can a process be effectively established and confirmed when it is presumed that the purpose for it will fail? How can this be a method of decision making within a public body? Surely all should have worked on the basis that the remains would be found and established a clear, unambiguous programme of activity to follow the discovery. Failing to do this allowed the adoption of a flawed process with a somewhat slapdash attitude toward the success of the project in some quarters and therefore of its own need to be rigorous and clearly defined.
It is here that tangents created problems precisely because of the room for doubt left by the process. The Cathedral emphasised “its early agreement to re-interment” (Paragraph 36). The Council began to view itself as “responsible for all human remains found, and to have decision-making responsibility”. When a “Written Scheme of Investigation” was submitted by ULAS, in consultation with Ms Langley, “The Scheme provided for the re-interment in Leicester Cathedral” (Paragraph 37). The Scheme made no mention of where the decision making responsibility lay, allowing the Council’s impression of their authority to continue.
It was stated that the Council would have been “unlikely” to permit the dig if re-interment elsewhere than Leicester was a possibility and ULAS would “have been unwilling to spend money on exhumation if there had been a real prospect the re-interment would sever the link between Leicester and Richard III” (Paragraph 40).
The first public announcement came on 24th August 2012 when the University held a press conference, with accompanying statement, followed up on 31st August by a second press conference. At both press conferences and within the statement released it was made clear that “If Royal remains were found, they would be re-interred in Leicester Cathedral” (Paragraph 42). It was noted that “these announcements did not appear to generate controversy … over the location of reburial” (Paragraph 42).
When human remains were uncovered on the first day of the dig, 24th August 2012, an exhumation licence was immediately required by law. The application was lodged on 31st August by Mr Buckley of ULAS. Although it could have been submitted by anyone, it is usual for an archaeologist to apply for the licence to demonstrate that they can meet the requirements of the exhumation. This application allowed for remains to be placed in the Jewry Wall Museum, but further stated “… in the unlikely event that the remains of Richard III are located the intention is for these to be reinterred at St Martin’s Cathedral, Leicester, within 4 weeks of exhumation” (Paragraph 45). I am struck again by the reference to the “unlikely event” of succeeding in the stated aim of the dig and believe that this sustained pessimism is at the root of the controversy that followed.
The Secretary of State for Justice granted the licence requested on 3rd September 2012. It was granted to the University under section 25 of the Burial Act 1857. This piece of legislation and its incumbent Victorian vagaries will add to the problems as we shall see later. The licence states in section 2(c) that remains should be “deposited at the Jewry Wall Museum or else be reinterred at St Martin’s Cathedral or in a burial ground in which interments may legally take place” (Paragraph 46). This clearly permits burial in a place other than Leicester and I wonder why this lack of specificity was allowed both by the MoJ and the University, given their previous concern to ensure Richard III’s remains were kept in Leicester. Once more, the near certainty of failure possibly meant that it was overlooked. Paragraph 47 states that “Ms Bernstein of the MoJ still saw it as an inherently speculative project, as did many others.” That may be the case, but it cannot be acceptable to fail to properly provide for the success of that which a licence is being grated to permit by a government department.
At a press conference on 12th September, the University revealed that remains potentially belonging to Richard III had been found and that if they were confirmed as such, “they would be reinterred in Leicester Cathedral”. (Paragraph 49). It is here that the uncertainty of the licence grant reared its head. Mr Buckley requested a clarifying amendment to the licence regarding re-interment at Leicester Cathedral and was informed by the MoJ that the licence was to be read alongside the application form and covering letter, which made the position clear; “the precise location was for ULAS” (Paragraph 50). To my mind, this was the point at which things were settled and clear. ULAS were responsible for arranging the re-interment and the location was for them to decide. Their stated intention was to reinter at Leicester Cathedral. The end.
Leicester Council now began to investigate the notion of consultation with “key stakeholders” (Paragraph 51), identified as “the Council, the Society, the Cathedral, the Royal Household, possibly the Council of Faiths, the Secular Society, the University “and other funders”” (Paragraph 51). Fatally, this consultation was designed to investigate “the principle of reburial, the manner of reburial and the location” (Paragraph 51). The MoJ had already made the position plain, as mentioned above, so this notion was only going to add fuel to a fire that should never have started.
Nevertheless, the Council continued with their belief that there existed a “duty to consult” (Paragraph 53). The Council envisaged a consultation process via its website and a decision being made jointly by ULAS and the Council, with an opportunity to appeal the decision. Worryingly, “The decision-maker was then to be the Council in consultation with the University, and ultimately the City Mayor” (Paragraph 57). As has already been established, though, the decision making body was ULAS. Mr Buckley objected to this approach and the Council’s plans were never made public.
The Royal Household was contacted, since the MoJ Burials Team were keen that there should be “no concerns” from that quarter regarding the location of reburial. No concerns were raised (Paragraph 58).
Parliamentary interest heightened and, on 6th February 2013, 2 days after DNA confirmation beyond reasonable doubt that Richard III had been found, the City of York wrote to the Secretary of State for Justice “making representations for the re-interment to take place in York Minster” (Paragraph 62). On 7th February, York Minster issued a statement “supporting the wish of the Chapter of Leicester for re-interment in Leicester” (Paragraph 63). Shortly afterwards, York Minster retreated to a position of neutrality. This flurry of ill-conceived activity in early February was akin to poking a sleeping bear with a pointy stick that had a hornets’ nest hanging from it.
That which had long been decided and settled was made to appear as though it was open to a public vote, a popularity contest. The REX-Factor was born. And there was only ever going to be one loser.
The MoJ wrote to Mr Buckley on 26th March 2013 suggesting a meeting between interested parties “to allow attendees to make representations and express any concerns that they may have”, adding that “ultimately, the decision on re-interment remains a matter for the University to decide” (Paragraph 68). Around this time, the Society “changed to a more neutral position as between Leicester and York” (Paragraph 70). This, I believe, was an error that acted as an accelerant to the kindling fire of an argument that should never have been. I can appreciate the difficult position that the Society was propelled into; it may have felt obliged to represent its membership more evenly and not be viewed as partisan, but the fact is, it had taken a side, then backed away from that side. The message was confusing and dangerous.
By now, an impression had been created and allowed to endure that Richard III’s remains were ‘up for grabs’. If all parties had kept to the original plan and the original agreement, his remains would have been re-interred and treated with respect and dignity in a timely fashion. Some may have clung to a sour taste at the place being Leicester Cathedral, but that timely, dignified conclusion, wherever it may be, is what most will tell you is the important thing, but it has been prevented by the brawling that has pervaded social media ever since.
On 3rd May 2013, Judicial Review proceedings were lodged by the Plantagenet Alliance, seeking ostensibly to see Richard’s remains re-interred in York. This could only be achieved by bringing proceedings to review the decision to grant the original licence. The challenge was made on four fronts (Paragraph 75);
“The Licence Decision” – meaning the failure to consult or attach a requirement to consult regarding re-interment.
“The Failure to Revisit” – the lack of re-examination of the licence by the Secretary of State for Justice when it became clear that the University would not consult.
“The Council Decision” – Leicester Council’s decision to support the University’s plans to re-inter in Leicester Cathedral, and
“The Re-interment Decision” – the University’s decision to re-inter at Leicester Cathedral.
It is vital to understand that this review is a review of the legal process only. It could never and should never have sought to take account of opposing preferences or the weight that any other location may carry versus Leicester. This was a legal review of the decision by the MoJ to issue the licence in the terms in which it was issued. This is why it was doomed to fail. Paragraph 76 makes clear the flaw, stating “The Claimant’s Grounds also asserted that Leicester Cathedral was not the most appropriate place for re-interment”. This appeal was based upon a passionate plea in favour of an alternative location, not on a fault within the legal process of granting the original licence.
The subsequent legal wrangling can, in my opinion, be distilled thus. The court could not cancel the original licence. To exhume human remains without a licence is a criminal offence and cancelling the licence would retrospectively make criminals of the archaeological team. This is both undesirable and deeply inequitable. The licence could not be re-issued under different terms because the remains were already exhumed.
In order to bring proceedings for a judicial review, the Claimant must demonstrate sufficient standing in the matter; a strong enough interest. In legal jargon, this is called the ‘locus standi’ (‘place of standing’). The Plantagenet Alliance claimed locus standi based on collateral descent. Members were 16th, 17th or 18th generation collateral descendants. Importantly, the court allowed proceedings to be brought on the basis of public interest, not that of collateral descent, which was judged to be too distant (Paragraph 82).
The Burials Act 1857 is described as a “paradigm example of a sparse Victorian statute” (Paragraph 88). Modern legislation is formulated to capture all aspects and to provide thorough procedures and processes. The Burials Act 1857 has never been superseded or repealed and its language is broad and sweeping rather than specific. Where this is the case, English Common Law will insert requirements of fairness into the application of the statute. Equity is a watchword of the Common Law.
The Plantagenet Alliance relied upon three perceived duties regarding the failure to consult;
1. A duty to consult.
2. A duty to carry out sufficient inquiry.
3. A duty to have regard to relevant considerations.
There is “no duty to consult at Common Law” (Paragraph 98(1)). Such a requirement can be imposed in four defined circumstances (Paragraph 98(2)). The first is where the statute imposes a duty to consult, which the Burials Act 1857 does not. Secondly, where there has been a promise to consult, which there never was. The Council may have privately investigated the notion, but not publically, nor had the University offered such an assurance. Thirdly, where there is a precedent to consult, and finally where failure to consult would result in “conspicuous unfairness” (Paragraph 98(2)). Without one of these factors, there can be no obligation to consult. It was the last two notions upon which the Plantagenet Alliance hung its hopes.
The Plantagenet Alliance cited four documents to support their assertion of an established precedent to consult. These were the MoJ’s ‘Guidance Note on Application for the Removal of Remains’, the Church of England and English Heritage’s ‘Guidance for best practice for treatment of human remains excavated from Christian burial grounds in England’, a DCMS document entitled ‘Guidance for the Care of Human Remains in Museums’ and a Council document of 2012, ‘The Curation, Care and Use of Human Remains’.
The Court found, however, that none of these supported the circumstances at hand nor did they create an expectation of consultation with collateral relatives after a period of over 500 years (Paragraph 153). Each document was guidance rather than a statutory requirement, but was found not to be applicable anyway.
The Court further found that no unfairness could be derived from the failure to consult. The Claimant also cited the “unique and exceptional nature of this case” (Paragraph 154) as creating a requirement to consult. The Court was, I think understandably, unwilling to set such a precedent, since unique circumstances could be said to exist in virtually any given case.
Interestingly, some calculations indicated that there were potentially between 1 million and over 10 million individuals who may be able to claim the same level of collateral descent as the Claimant. The Plantagenet Alliance was also insisting firmly on a requirement for public consultation, meaning “the public consultation regarded by the Claimant is entirely open-ended and not capable of sensible limit of specificity” (Paragraph 156). Legally, case law stipulates that open ended consultation cannot be expected and that the Courts cannot impose a level of specificity that would see them effectively acting in the role of legislators (Paragraph 157).
The Court therefore dismissed the Plantagenet Alliance’s application for a Judicial Review.
In my opinion, this whole episode has been a vast white elephant that has, and will for a long time to come, cost the Ricardian community dearly. I can fully appreciate passionate believe that Richard should rest in one place or another, but the tug of war into which it has descended is grubby and lacks the decorum an anointed King of England deserves.
The University of Leicester and ULAS appear to have established their position from the outset, made it public and never moved from that position. In my opinion, that was the correct course of action. The Society (with the benefit of hindsight) erred in faltering to a neutral position. Having entered the arrangements in support of Leicester Cathedral, that is the position that they should have maintained. Leicester Council’s attempt to hijack affairs was “unnecessary, unhelpful and misconceived (as it, itself, ultimately acknowledged)” (Paragraph 164). York City’s intervention, which appeared in opposition to York Minster’s position, which itself then altered, was equally inappropriate. The Minster’s changing of position from pro-Leicester to neutral fed the uncertainty.
The legal position appears to me to have been clear from the outset. The Licence was granted to ULAS and it was clear that they were responsible for the remains and their re-interment. Their stated intention was to re-bury Richard III at Leicester Cathedral. Other parties to the project agreed with this position and proceeded on the basis of this arrangement. There was no requirement to consult and to do so would have been almost impossible in scope. As I suggested before, the level of certainty of failure with which most parties seems to have entered the project was the fatal flaw. Shocked when Richard III was, in fact, discovered, they found that they no longer wished to maintain their stated positions. This lack of forethought was calamitous. At this point, to my mind, it is too late. Your bed is made by your own hand and you must lie in it. Several parties, added to by outside bodies, instead threw off the bedclothes and sleepwalked into the debacle that, as I stated before, has only one loser.
A legal challenge to re-interment at Leicester was never going to succeed. So who is the real loser? Not the Plantagenet Alliance, nor the City of York. The Ricardian movement, inside and outside the Society, whether in Yorkshire, Leicestershire or overseas, exists to promote the study and re-assessment of the life and times of King Richard III. Many also feel an emotional connection to the king that, unfairly, is all too frequently sneered at. The discovery of the remains of King Richard III is a once in a lifetime, once in a 500 years’ time, occurrence. Never again will his worldwide profile be so high. And we, collectively, have wasted it.
There are, I think, (at least) two things upon which all Ricardians will always agree.
Firstly, regarding his re-interment, his remains should be afforded the respect that they demand as those of an anointed King of England. Catholic ceremony should probably play some part in proceedings because he was Catholic. A box in a lab is not where we want to see him. This is, I suggest, common ground for us all. I fear that in allowing the community to be consumed by the unanswerable and divisive question of where is best, we have utterly ignored the unifying and infinitely more attainable question of what is best. If we all agree on what we want to be done, where becomes an irrelevant distraction. We do not, in spite of all of the ink spilt upon the matter, know where Richard III wanted. We do know, as a Catholic, what he wanted, needed even. This has become lost in the squabbling. Why is he still unburied, possibly in a box in a lab (though we do not know precisely where his remains currently are)? Because of the fights over where. That which we purport to despise is perpetuated by our own unsettled and unsettling hand.
Perhaps Richard made some plans at some time to rest in York. Perhaps he planned, as king, to be interred with his wife at Westminster Abbey. Perhaps, had he re-married and had another heir, he would have been buried in the Yorkist kings’ mausoleum at St George’s with his second wife, mother to a future Yorkist king. Just maybe Fotheringhay held a pull upon him, to rest with his father and brother. When he took the field at Bosworth, he would been aware that losing would result in a quiet, obscure burial nearby. He might also have believed that he would one day be moved somewhere else. He had the precedent of Richard II and Henry VI to consider, but on that morning, defeat brought no certainty beyond death. One thing is for certain. We do not know what he wanted. It is therefore an irrelevant and distracting argument. It can be discussed, yes. I love discussing such things. But to allow it to detract from the dignity of his treatment is not helpful.
Ask yourself one question: Will I stop being a Ricardian if the remains of Richard III are re-interred at Leicester?
Would anyone really answer yes to that question? Will he deserve re-assessment less if his mortal remains rest in Leicester than if they were elsewhere?
If you answered no, then where simply does not matter.
The re-assessment of the reputation of Richard III is the second area of common ground. This is different to the promotion of Richard as a saintly figure. He was a medieval man and monarch, not an unblemished, flawless saint. But he was not what Shakespeare wrote either. An examination of the man, hidden for centuries behind the myth, is what is sought. One day, proof may be unearthed that he ordered his nephew’s murders. I cannot say that he didn’t do it. Neither can I say that he did. But there is plenty in the myth enshrouding his reputation that is simply, demonstrably, not true.
This is where we have all failed.
Where are the documentaries on Richard III, his life, his times and his reputation, since his discovery? I have watched a Tudor Court season on BBC2 and a three part broad sweep of the Plantagenet dynasty which felt unsatisfactory in its depth and offered nothing of note on Richard III. Why is there no Richard III season, or Wars of the Roses season even? I fear that the simple truth is that production companies and documentary makers don’t want to get their fingers burnt. We have created a hot potato at a time when we should have been serving up lashing of ginger beer and scones. Instead of providing a ready-made, out of the box set of appealing program options, all fully researched and grounded in fact, we have guarded the Precious, sometimes jealously.
The real loser is King Richard III. The greatest chance for a balanced re-assessment of his life has been lost in what time will prove to be an irrelevant distraction of an argument.
The very fact that I felt the need to preface this with an assurance that I seek to cause no offence speaks volumes. The fact that I know I will cause some offence screams further tomes.
We have a choice now. Focus on the what, initiate and embrace the debate while the opportunity lingers, or fester on the where and condemn King Richard III to 500 years more in the darkest shadows of English history.
I have chosen.
Full text of the Court judgement: http://www.judiciary.gov.uk/wp-content/uploads/2014/05/richard-3rd-judgment-.pdf
Ministry of Justice’s ‘Guidance Note on Application for the Removal of Remains’: https://www.merton.gov.uk/living/register/cemeteries/single_exhumation_guidance_notes.pdf
Church of England and English Heritage’s ‘Guidance for best practice for treatment of human remains excavated from Christian burial grounds in England’: http://www.english-heritage.org.uk/publications/human-remains-excavated-from-christian-burial-grounds-in-england/16602humanremains1.pdf
‘Guidance for the Care of Human Remains in Museums’: http://webarchive.nationalarchives.gov.uk/+/http://www.culture.gov.uk/images/publications/GuidanceHumanRemains11Oct.pdf