The Plantagenet Alliance Ltd, R (On the Application Of) v Secretary of State for Justice & Anor

Factual and Procedural Background

The case concerns the unprecedented archaeological discovery of the mortal remains of a former King of England after over 500 years. The remains were discovered in 2012 beneath a municipal car park on the former site of Gray Friars Church in The City. The discovery was made by a collaborative effort involving a campaigning society, The University, and The City Council.

Following the discovery, The University applied to the Secretary of State for Justice for an exhumation licence under the Burial Act 1857, which was granted on 3rd September 2012. The licence permitted the removal of human remains from the site with conditions regarding their subsequent deposit or re-interment.

DNA testing confirmed the identity of the remains as those of the former King on 4th February 2013. Subsequently, Judicial Review proceedings were issued by the Claimant on 3rd May 2013 challenging:

1. The Secretary of State's decision to grant the exhumation licence without requiring consultation on the re-interment of the remains;
2. The Secretary of State's refusal to revisit the licence once it became clear that no appropriate consultation would take place;
3. The University's decision to arrange re-interment at Leicester Cathedral without consultation.

The Secretary of State and The University resisted the challenge, asserting lack of standing and delay. The court considered these procedural issues and granted permission for Judicial Review proceedings, finding the challenge clearly arguable.

Legal Issues Presented

1. Whether the Secretary of State for Justice had a common law duty to consult relevant interests before granting an exhumation licence for the remains of the former King;
2. Whether the Secretary of State was obliged to revisit the licence decision after the remains were confirmed and concerns about re-interment arose;
3. Whether The University of Leicester, as a public authority, was required to conduct appropriate consultation before arranging re-interment;
4. Whether the Claimant has sufficient standing and the proceedings were brought promptly;
5. Whether Article 8 of the European Convention on Human Rights (right to family life) applies to the treatment and reburial of the remains.

Arguments of the Parties

Claimant's Arguments

• The Secretary of State had a duty at common law to consult widely with relevant parties, including citizens, collateral descendants, and ecclesiastical bodies, before granting the exhumation licence and deciding on re-interment.
• The Secretary of State failed to carry out any proper consultation prior to granting the licence or afterwards, despite knowing the significance of the remains.
• The University of Leicester improperly proceeded to arrange re-interment without consultation.
• The Claimant asserted standing based on its status as a campaigning organisation representing collateral descendants of the former King.
• Article 8 ECHR rights support consideration of the deceased's wishes and family interests in burial arrangements.

Defendants' Arguments

• The Secretary of State and The University resisted the claim on the merits.
• They asserted the Claimant lacked standing.
• They alleged the Claimant delayed unreasonably in bringing proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Argyll Group plc) v. Monopolies and Mergers Commission [1986] 1 WLR 763	General principles on standing and sufficient interest in judicial review.	Supported the wide meaning of "sufficient interest" for standing in judicial review.
R (Greenpeace Ltd) v. Her Majesty's Inspectorate of Pollution [1994] 4 All ER 329	Standing and public interest in judicial review proceedings.	Reinforced the principle of public interest standing relevant to the Claimant's status.
R (Residents Against Waste Site Ltd) v. Lancashire County Council [2007] EWHC 2558 (Admin)	Standing and public interest in environmental and public matters.	Supported Claimant's standing on conventional principles.
R (Blackfordby and Boothorpe Action Group Ltd) v. Leicestershire County Council	Standing and public interest.	Referenced as part of the jurisprudence on standing.
Walton v The Scottish Ministers [2012] UKSC 44; 2012 SLT 1211	Standing and procedural requirements in judicial review.	Confirmed the wide approach to standing in cases involving public interest.
Ali v. Head Teacher and Governors of Lord Grey School [2004] QB 1231	Definition of public authority amenable to judicial review.	Supported finding that The University is a public authority for present purposes.
R (Rudewicz) v. Secretary of State for Justice [2013] QB 410	Discretion under Burial Act 1857 and Article 8 ECHR family life rights.	Clarified the scope of Secretary of State's discretion and relevance of consultation and family life rights.
R (Burrows) v. HM Coroner for Preston [2008] EWHC 1387 (Admin)	Application of Article 8 ECHR to funeral arrangements and deceased's wishes.	Supported argument that deceased's views on burial must be considered.
R (Corner House Research) v. Secretary of State for Trade and Industry [2005] WECA Civ 192	Protective Costs Orders in public interest litigation.	Guided the court’s decision to grant a Protective Costs Order to the Claimant.
Morgan v. Hinton Organics [2009] EWCA Civ 107	Flexible approach to Protective Costs Orders.	Supported the court’s flexible approach in granting the Protective Costs Order.

Court's Reasoning and Analysis

The court recognized the unprecedented nature of the discovery and the significant public and historical interest involved. It found it plainly arguable that a duty existed at common law for the Secretary of State to consult widely before granting an exhumation licence, especially given the known sensitivities and the prominence of the remains.

The court reviewed relevant guidance on treatment of excavated human remains, which emphasized ethical treatment through consultation with interested parties, including descendants and the public. The Secretary of State was aware of these sensitivities but failed to apply the guidance or conduct consultation before granting the licence.

The court considered the Secretary of State’s discretion under the Burial Act 1857 to be broad but subject to rationality and general legal principles, including legitimate expectation to consult. It found that the duty to consult was non-delegable and could not be discharged by delegating to The University, which had a vested interest.

The court accepted the Claimant’s standing, noting its representation of collateral descendants and the wide interpretation of "sufficient interest" in judicial review. It also found no unreasonable delay in bringing the proceedings, given the need to await DNA confirmation of the remains’ identity.

The court acknowledged the public controversy and strong feelings surrounding the re-interment location, supported by petitions and parliamentary debate. It criticized the failure of consultation and the unilateral arrangements by The University.

Finally, the court ordered full disclosure from the Secretary of State and The University in accordance with their duty of candour and granted a Protective Costs Order to facilitate the Claimant’s access to justice.

The court expressed a strong recommendation that the parties refer the question of reburial to an independent advisory panel of experts and Privy Councillors to consult all interested parties and make recommendations promptly, emphasizing that a legal battle over the remains would be inappropriate and contrary to the country's interests.

Holding and Implications

The court granted permission for Judicial Review proceedings on all grounds raised by the Claimant, finding the challenge clearly arguable.

The court held that:

• There was a plainly arguable duty at common law for the Secretary of State to consult widely before granting the exhumation licence and before any re-interment decisions;
• The Claimant has sufficient standing to bring the proceedings;
• The proceedings were brought promptly and without unreasonable delay;
• The University of Leicester is amenable to judicial review as a public authority;
• A Protective Costs Order was appropriate to prevent the Defendants from recovering costs against the Claimant;
• Full disclosure of relevant documents should be made by the Defendants;
• The court recommended referral of the burial question to an independent advisory panel to avoid undignified litigation.

These decisions directly affect the parties by allowing the Claimant to proceed with the Judicial Review and imposing procedural obligations on the Defendants. The court did not establish new binding precedent but clarified the application of consultation duties and public interest considerations in the unique context of royal remains.