Do or die
рикардианскоеJUDICIAL REVIEW, Tuesday 26 November 2013 (adjourned)
© Annette Carson, 2013
Important Note: The following summary is a personal impression of the events in the High Court which the writer attended as a member of the public. They are by no means a verbatim transcription, and indeed from my seat at the back it was quite difficult to hear the arguments. Please accept my apologies for any inaccuracies, and do not quote this account as authoritative.
Heard before:
Lady Justice Hallett
Mr Justice Ouseley
Mr Justice Haddon-Cave
For the Plantagenet Alliance (claimant): Gerard Clarke
For the Secretary of State for Justice (first defendant): James Eadie, QC
For the University of Leicester (second defendant): Anya Proops
For Leicester City Council: Norman Palmer, QC
The proceedings opened, to our surprise, not with arguments for the Plantagenet Alliance’s case but with a wholly unexpected application by Mr Clarke, acting on their behalf, seeking the Court’s permission to join Leicester City Council to the existing two defendants in the case. It was only later in the course of the morning that Mr Clarke spoke the words which he had doubtless originally prepared as his opening remarks: that this was the most extraordinary Judicial Review in modern times, and practically unrepeatable. As such it was probably non-precedential. The Court was being asked to decide whether the defendants had failed to conduct the due consultation that was called for in the case of the reburial of the human remains of a King of England.
The first business of the day, however, concerned itself with the request by the Plantagenet Alliance (PA) to have Leicester City Council (LCC) joined as co-defendant. The Council had very recently made a written submission to the effect that it considered itself to be the custodian of the remains. Mr Clarke said that the LCC had a reasonable case to claim custody, but had been persuaded by the University of Leicester (UoL) to take a background role. The Council now says it merely suspended its decision-making process, and proposes to return to it after the conclusion of the Judicial Review.
The PA’s concern was that in returning to its decision-making role once the Court had given judgment, there was no reason to suppose that the Council would then carry out the consultation sought by the claimants. What if, after the judicial process, the LCC simply maintains that it has legal control of the disposal of the remains? This was the PA’s main argument for not leaving the LCC merely as an interested party, but for wishing to have it joined as a co-defendant – so that it, too, would be bound by the ruling of the Court. [There are already two named interested parties in the case: Leicester Cathedral and York Minster.]
Interestingly, at this point the LCC was observed to have clearly broken ranks with the University, in that it disputes the UoL’s role and claims to have overall direction of the matter, in its capacity both as the land-owner and as a public authority.
Given that this submission was received only on 19 November, the PA needed to hear the LCC’s arguments in full in order to determine whether the target of the Judicial Review should rather be (or should include) the LCC. Asked why this was not considered at the outset, Mr Clarke stated that they could not have known of the LCC’s role because the public position on the remains was adopted by the UoL in February 2013.
Lady Justice Hallett sought for other remedies as she was well aware that to consider the joining proposal now would almost certainly prevent the conclusion of the hearing, for which only this one day had been set aside. She added that there was now further disagreement relating to how the remains should be laid out – whether they should be placed in their anatomical position in the coffin.
There was considerable discussion as to the LCC’s history in the matter and its stated willingness to conduct consultations with various parties, some of whom were mentioned. Mr Justice Ouseley evinced an ongoing interest in what consideration it had given to other reburial locations: he had noticed that the LCC’s early intentions to consult on them had been dropped. In the end Mr Palmer, acting for the LCC, stated that the Council was firmly committed to a policy of consultation in respect of the remains.
Discussion also centred on the exhumation licence issued by the Ministry of Justice (MoJ). The PA was surprised that an expedition order had been made, i.e. an order to expedite compliance with the terms of the licence. For readers who are unaware, the licence, issued in September 2012, permits the exhumation of remains and gives the licensee responsibility to arrange for their reburial within two years. It was applied for by University of Leicester Archaeological Services (ULAS) but issued to the UoL as licensee.
The question was asked whether the Secretary of State had the power to amend the order as to the two-year deadline. Mr Eadie, acting for the Ministry of Justice, replied that the MoJ does not assert the power to do anything other than to issue such a licence in the proper form.
Mr Clarke envisaged that in the event that the PA succeeded, the Secretary of State would probably issue a fresh licence. The problem facing the Court was: what if the LCC then objected to it? The PA wanted to avoid any further legal challenges in the future. The LCC’s statement said that it had ceased its own consultations because they were not required by the MoJ’s licence. It had also made its position clear that it was in favour of reburying Richard III in Leicester.
The Justices then decided to take a brief adjournment, the issue to be determined being whether the LCC has a role to play in the case and whether it is appropriate to join them as co-defendants. On returning they ruled that the LCC would now be co-defendants, which meant that the hearing must be adjourned to await new submissions. Lady Justice Hallett wanted to schedule the hearing for as early as possible in the new year, but they were looking at two days in the Court calendar as well as time to prepare, so they could not predict how soon this would be.
It was established that there would be no problem amending the original exhumation licence to provide a slightly longer time. Mr Eadie did not appear to have been briefed as to several aspects relating to the licence, and answered “Pass” when asked by Mr Justice Ouseley whether the phrase ‘burial ground’ had any geographical limits, and whether it signified an exterior burial site or one within a building.
Meanwhile Mr Palmer had taken new instructions from the LCC and gave the Court an undertaking that the Council was prepared to embark on consultations – now. Ms Proops, for the UoL, said the University was bound by the terms of the licence as issued and had no room for manoeuvre, otherwise they would be in breach of the law. Mr Palmer for the Council disagreed on this point of law.
© Annette Carson, 2013
Important Note: The following summary is a personal impression of the events in the High Court which the writer attended as a member of the public. They are by no means a verbatim transcription, and indeed from my seat at the back it was quite difficult to hear the arguments. Please accept my apologies for any inaccuracies, and do not quote this account as authoritative.
Heard before:
Lady Justice Hallett
Mr Justice Ouseley
Mr Justice Haddon-Cave
For the Plantagenet Alliance (claimant): Gerard Clarke
For the Secretary of State for Justice (first defendant): James Eadie, QC
For the University of Leicester (second defendant): Anya Proops
For Leicester City Council: Norman Palmer, QC
The proceedings opened, to our surprise, not with arguments for the Plantagenet Alliance’s case but with a wholly unexpected application by Mr Clarke, acting on their behalf, seeking the Court’s permission to join Leicester City Council to the existing two defendants in the case. It was only later in the course of the morning that Mr Clarke spoke the words which he had doubtless originally prepared as his opening remarks: that this was the most extraordinary Judicial Review in modern times, and practically unrepeatable. As such it was probably non-precedential. The Court was being asked to decide whether the defendants had failed to conduct the due consultation that was called for in the case of the reburial of the human remains of a King of England.
The first business of the day, however, concerned itself with the request by the Plantagenet Alliance (PA) to have Leicester City Council (LCC) joined as co-defendant. The Council had very recently made a written submission to the effect that it considered itself to be the custodian of the remains. Mr Clarke said that the LCC had a reasonable case to claim custody, but had been persuaded by the University of Leicester (UoL) to take a background role. The Council now says it merely suspended its decision-making process, and proposes to return to it after the conclusion of the Judicial Review.
The PA’s concern was that in returning to its decision-making role once the Court had given judgment, there was no reason to suppose that the Council would then carry out the consultation sought by the claimants. What if, after the judicial process, the LCC simply maintains that it has legal control of the disposal of the remains? This was the PA’s main argument for not leaving the LCC merely as an interested party, but for wishing to have it joined as a co-defendant – so that it, too, would be bound by the ruling of the Court. [There are already two named interested parties in the case: Leicester Cathedral and York Minster.]
Interestingly, at this point the LCC was observed to have clearly broken ranks with the University, in that it disputes the UoL’s role and claims to have overall direction of the matter, in its capacity both as the land-owner and as a public authority.
Given that this submission was received only on 19 November, the PA needed to hear the LCC’s arguments in full in order to determine whether the target of the Judicial Review should rather be (or should include) the LCC. Asked why this was not considered at the outset, Mr Clarke stated that they could not have known of the LCC’s role because the public position on the remains was adopted by the UoL in February 2013.
Lady Justice Hallett sought for other remedies as she was well aware that to consider the joining proposal now would almost certainly prevent the conclusion of the hearing, for which only this one day had been set aside. She added that there was now further disagreement relating to how the remains should be laid out – whether they should be placed in their anatomical position in the coffin.
There was considerable discussion as to the LCC’s history in the matter and its stated willingness to conduct consultations with various parties, some of whom were mentioned. Mr Justice Ouseley evinced an ongoing interest in what consideration it had given to other reburial locations: he had noticed that the LCC’s early intentions to consult on them had been dropped. In the end Mr Palmer, acting for the LCC, stated that the Council was firmly committed to a policy of consultation in respect of the remains.
Discussion also centred on the exhumation licence issued by the Ministry of Justice (MoJ). The PA was surprised that an expedition order had been made, i.e. an order to expedite compliance with the terms of the licence. For readers who are unaware, the licence, issued in September 2012, permits the exhumation of remains and gives the licensee responsibility to arrange for their reburial within two years. It was applied for by University of Leicester Archaeological Services (ULAS) but issued to the UoL as licensee.
The question was asked whether the Secretary of State had the power to amend the order as to the two-year deadline. Mr Eadie, acting for the Ministry of Justice, replied that the MoJ does not assert the power to do anything other than to issue such a licence in the proper form.
Mr Clarke envisaged that in the event that the PA succeeded, the Secretary of State would probably issue a fresh licence. The problem facing the Court was: what if the LCC then objected to it? The PA wanted to avoid any further legal challenges in the future. The LCC’s statement said that it had ceased its own consultations because they were not required by the MoJ’s licence. It had also made its position clear that it was in favour of reburying Richard III in Leicester.
The Justices then decided to take a brief adjournment, the issue to be determined being whether the LCC has a role to play in the case and whether it is appropriate to join them as co-defendants. On returning they ruled that the LCC would now be co-defendants, which meant that the hearing must be adjourned to await new submissions. Lady Justice Hallett wanted to schedule the hearing for as early as possible in the new year, but they were looking at two days in the Court calendar as well as time to prepare, so they could not predict how soon this would be.
It was established that there would be no problem amending the original exhumation licence to provide a slightly longer time. Mr Eadie did not appear to have been briefed as to several aspects relating to the licence, and answered “Pass” when asked by Mr Justice Ouseley whether the phrase ‘burial ground’ had any geographical limits, and whether it signified an exterior burial site or one within a building.
Meanwhile Mr Palmer had taken new instructions from the LCC and gave the Court an undertaking that the Council was prepared to embark on consultations – now. Ms Proops, for the UoL, said the University was bound by the terms of the licence as issued and had no room for manoeuvre, otherwise they would be in breach of the law. Mr Palmer for the Council disagreed on this point of law.
@темы: Richard III