Factual and Procedural Background
The case arises from the discovery and subsequent exhumation of the remains of a historically significant individual, hereinafter referred to as "the Historical Figure," whose burial site was located beneath a municipal car park owned by the City Council ("the Council"). The Historical Figure's remains were identified through archaeological excavation conducted by University Archaeological Services ("ULAS") in partnership with the University of Leicester ("the University") and supported by a historical society ("the Society"). Following the discovery, an exhumation licence was granted by the Secretary of State for Justice ("the Secretary of State") under section 25 of the Burial Act 1857, permitting the removal and re-interment of the remains.
The Claimant, a not-for-profit entity representing collateral descendants of the Historical Figure, challenged the grant of the exhumation licence and subsequent decisions relating to the location of re-interment. The Claimant sought a judicial review on grounds including the alleged failure to consult interested parties, particularly the collateral descendants, and the absence of a public consultation regarding the appropriate place of re-interment. The Council and the University were joined as defendants. The litigation focuses on the procedural and legal propriety of the Secretary of State's decisions and associated actions, rather than on substantive issues such as the precise location for re-interment.
Legal Issues Presented
- Whether the Secretary of State had a duty to consult collateral descendants, the public, or other interested parties before granting the exhumation licence or attaching conditions regarding re-interment.
- Whether the Secretary of State was obliged to revisit or amend the exhumation licence following definitive identification of the remains.
- Whether the Council had the legal authority or duty to decide or consult on the location of re-interment.
- Whether the decisions of the Secretary of State, the Council, and the University complied with public law principles, including fairness, sufficient inquiry, and regard to relevant considerations.
- Whether the Claimant had sufficient standing (locus standi) to bring the judicial review proceedings.
Arguments of the Parties
Claimant's Arguments
- The Secretary of State should have conducted a public consultation before granting the exhumation licence or attached conditions requiring consultation about the re-interment location.
- The identifiable living collateral descendants of the Historical Figure should have had their views considered in the decision-making process.
- The Secretary of State failed in his duty to properly inform himself by not carrying out sufficient inquiries or consultation, rendering the decision irrational.
- The Council and University improperly proceeded with arrangements for re-interment in Leicester Cathedral without adequate consultation or public involvement.
- There should have been either a panel of experts appointed or a public consultation to determine the appropriate place of re-interment, given the unique and exceptional nature of the case.
Defendants' Arguments
- The Secretary of State lawfully exercised his discretion under the Burial Act 1857, with no statutory or common law duty to consult collateral descendants or the public.
- The exhumation licence was properly granted with appropriate conditions, including the re-interment in Leicester Cathedral, supported by local authorities, the Church, the Society, and the Royal Household.
- The Secretary of State had sufficient information and was entitled not to revisit the licence after identification of the remains, making the decision rational.
- The University and ULAS were private bodies not exercising public functions and thus owed no public law duty to consult.
- The Council had no legal role as "legal sentinel" over the remains and no power or duty to consult or decide on re-interment location.
- The Claimant lacked sufficient interest in the matter for personal standing but was permitted to proceed as a public interest litigant.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Turner v. Secretary of State of the Environment (1973) 28 P. & C.R. 123 |
Broad approach to locus standi (standing) in judicial review cases. |
Supported the Claimant's standing as a public interest litigant despite attenuated relationship. |
| Cooper v Board of Works for the Wandsworth District (1863) 14 CB(NS) 190 |
Common law fairness requires parties to be heard even if statute silent. |
Foundation for the principle that fairness supplements statutory silence. |
| Lloyd v McMahon [1987] 1 AC 625 |
Implied procedural safeguards to ensure fairness in statutory decision-making. |
Affirmed the court's role in implying procedural fairness requirements. |
| Board of Education v Rice [1911] AC 179 |
Public bodies must act in good faith and fairly listen to both sides. |
Supported the application of fairness in Victorian sparse statutes like the Burial Act 1857. |
| Wiseman v. Borneman [1971] AC 297 |
Presumption that statutory powers are exercised in accordance with natural justice. |
Supported implication of fairness duties into statutory discretion. |
| Pierson v. Secretary of State for the Home Department [1998] AC 539 |
Statutory powers interpreted to include common law fairness unless expressly excluded. |
Confirmed the presumption of fairness limiting statutory discretion. |
| R (West) v Parole Board [2005] 1 WLR 350 |
Express mention of one procedural requirement rarely excludes others. |
Indicated that the Burial Act 1857 does not exclude implied duties to consult if fairness requires. |
| R (Cheshire East Borough Council) v. Secretary of State for Environment, Food and Rural Affairs [2011] EWHC 1975 |
Conditions for the existence of a common law duty to consult. |
Applied to reject general duty to consult absent statutory or exceptional circumstances. |
| R (Doody) v Secretary of State for the Home Department [1994] 1 AC 531 |
Fairness is an intuitive judgment dependent on context with key principles outlined. |
Guided the court's approach to assessing fairness requirements here. |
| Secretary of State for Education and Science v Tameside MBC [1977] AC 1014 |
Duty of decision-maker to take reasonable steps to inform themselves of relevant facts. |
Applied to assess whether the Secretary of State carried out sufficient inquiry. |
| R (Fewings) v Somerset City Council [1995] 1 All ER 513 |
No such thing as an unfettered discretion; must act rationally and fairly. |
Qualified the discretion under the Burial Act 1857. |
| R (Rudewicz) v Secretary of State for Justice [2012] EWCA Civ 499 |
Section 25 of Burial Act confers wide discretion on Secretary of State regarding licences. |
Confirmed the Secretary of State's broad discretion but subject to rationality and fairness. |
| R (Khatun) v Newham LBC [2005] QB 37 |
Duty to have regard to relevant considerations and possibly consult affected parties. |
Informed analysis of duties to inquire and consult. |
| R (BAPIO Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139 |
Limitations on duty to consult; must have defined limits and specificity. |
Supported rejection of open-ended public consultation duty in this case. |
| R (Coughlan) v North and East Devon Health Authority [2001] 1 QB 213 |
Legitimate expectation must be clear and breach amounts to abuse of power. |
Applied to reject claimed legitimate expectation of consultation. |
| R (Nadarajah) v Secretary of State for the Home Department [2003] EWCA Civ 1768 |
Express representations may create a legitimate expectation of consultation. |
Found no such representation here. |
| R (Davies) v HMRC [2011] 1 WLR 2625 |
Practice may create legitimate expectation if clear and unequivocal. |
No established practice of consultation found. |
| R (Bayani) v Kensington and Chelsea Royal LBC (1990) 22 HLR 406 |
Decision-maker must have sufficient information; irrational to decide without it. |
Applied in assessing sufficiency of inquiry. |
| R (London Borough of Southwark) v Secretary of State for Education [2005] |
Decision-maker's duty to inform themselves may require consultation with knowledgeable bodies. |
Clarified the scope of inquiry duty separate from procedural fairness. |
| R (Venables) v Secretary of State for the Home Department [1998] AC 407 |
Wider discretion requires more comprehensive information gathering. |
Supported the standard for sufficient inquiry. |
| Attorney-General for Hong Kong v Ng Yuen Shiu [1983] AC 629 |
Public authorities bound by procedural promises unless conflicting with statute. |
No promise to consult found here. |
| In Re Westminster City Council [1986] AC 668 |
Legitimate expectation does not arise merely from the context or scale of decisions. |
Supported rejection of open-ended consultation expectation. |
Court's Reasoning and Analysis
The court commenced its analysis by affirming the broad discretion conferred on the Secretary of State under section 25 of the Burial Act 1857 to grant exhumation licences, noting that while the discretion is wide, it is not unfettered and must be exercised rationally and in accordance with public law principles, including fairness.
The court considered the Common Law principle of fairness, which may imply procedural duties such as consultation where necessary to ensure just decision-making. However, it found no statutory or common law duty requiring the Secretary of State to conduct a public consultation before granting the licence or attaching conditions regarding re-interment. The possibility of consultation was further limited by the impracticality of identifying and consulting millions of collateral descendants and the absence of any promise or established practice mandating consultation.
The court rejected the Claimant's argument that consultation should have occurred before the licence was granted, deeming it premature given the remote possibility at that time that the remains would be identified as those of the Historical Figure. It also rejected the contention that the licence should have included a condition requiring consultation upon identification of the remains, noting the complexities and potential detriment to the licensee if such a condition were imposed post hoc.
Regarding the duty to carry out sufficient inquiry (the Tameside duty), the court found that the Secretary of State was adequately informed of all relevant factors, including the views of the Royal Household, the Church, the Society, the Council, and the University. The court held that the decision not to revisit the licence after identification was rational and supported by the information available, including the historical, cultural, and local connections favoring Leicester Cathedral as the re-interment site.
The court further held that the University and ULAS were private bodies not exercising public functions in this context and thus owed no public law duty to consult. Similarly, the Council had no legal authority or duty to decide or consult on the re-interment location and its intervention as "legal sentinel" was misconceived.
On the Claimant's standing, the court acknowledged the attenuated genealogical connection but allowed the Claimant to proceed as a public interest litigant given the broader public importance of the issues raised.
In sum, the court concluded that no public law grounds existed to interfere with the decisions of the Secretary of State, the Council, or the University, and that the procedures followed were lawful, rational, and consistent with principles of fairness applicable in the circumstances.
Holding and Implications
The court DISMISSED the Claimant's application for judicial review.
The direct effect of this decision is that the exhumation licence granted by the Secretary of State remains valid and unamended, and the University of Leicester retains the authority to determine the location of re-interment, which is to be Leicester Cathedral as per the licence conditions and surrounding agreements. The Council has no legal role in deciding or consulting on the re-interment location.
No new legal precedent was established; the decision reaffirms the broad discretion of the Secretary of State under the Burial Act 1857, the limited scope of common law duties to consult absent statutory mandate or clear legitimate expectation, and the standard of rationality and sufficiency of inquiry required in administrative decisions of this nature.