Leicester celebrates its king

So Skeleton 1 will be buried back in Leicester next spring. It will be some two and half years since it was dug up, and two since it was identified as the remains of an English king.

The exhumation licence proposed in effect that reburial would occur by October 3 2012 (“within 4 weeks”). Extensions on dates quoted in these licences are not uncommonly obtained, but I doubt anyone thought the reburial would be postponed so long. Neither do I imagine that many informed people expected that the burial would occur anywhere other than in Leicester, though (depending on your point of view) you might have feared or hoped otherwise.

The judicial review has been an expensive process that seems to have achieved little beyond causing a lot of anguish. We learnt today that the legal costs for the defendants were around £245,000 – £85,900 for Leicester City Council, £82,000 for the Ministry of Justice, £70,158 for Leicester University and around £7,000 for Leicester Cathedral. It cost the claimants, the Plantagenet Alliance who lost the case, nothing. But we can take more from it. For one thing, the delay is no bad thing.

The original plan was for the reburial ceremony to have taken place this spring. That looks wildly optimistic when you see the state today of the place where the remains were excavated and where they are to be buried (see photos below). For different reasons, the cathedral (a £2.5m landscaping project that was planned before any of this archaeology malarkey began) and the car park (frenzied visitor centre construction) are useless for any public gathering, let alone a major burial ceremony watched around the world. The bronze statue of the king that used to stand down near the river by Bow Bridge, and will in time be resited at the cathedral, is in Lincolnshire for restoration (Richard is to get a new sword). And most of the peer-reviewed research into the remains has yet to be published. We might have been burying Richard III to a eulogy replete with pendings and forthcomings.

Grey Friars

visitor centre entrance to be

the car park and the site of Richard III’s grave

So reburial in a year’s time allows for the dust to settle on the developments around Peacock Lane, for the grass to grow and for the people of Leicester to accommodate the changes. It will allow the scientific and archaeological community, and all of us, to digest the detailed research into the king’s remains. And, hopefully, we will be able to distance the ceremony from the often unhelpful and at times deeply ill informed debate that has been happening since February last year.

The other dividend is the judges’ analysis. One wouldn’t necessarily wish it this way, but now that we have it, the judgment on The Queen (on the application of Plantagenet Alliance LTD) -v- Secretary of State for Justice and Others, is a fascinating document. If you enjoy these things as much as I do, you won’t need me to summarise the 19,000-word report (and if you don’t, you wouldn’t want me to). But there are a few points worth drawing out.

The Plantagenet Alliance’s case was that where Richard III’s remains were to be reburied should have been subject to consultation (at least that is how it was turned to practical argument – its true case, of course, was that Richard III should not be buried in the ungrateful Leicester, but far away in his loving York). You can see from what I wrote at the time about the hearing on March 13–14, that I (and I believe many others) felt that any case it thought it might have had was roundly demolished. And so it turned out: on May 23, the application for judicial review was dismissed.

There were essentially two reasons for this (notwithstanding the expected bluster from both sides). Firstly, other things being equal, there was no legal requirement for the Secretary of State for Justice to consult about the matter. Secondly, he knew enough about what everyone thought, so consultation would not have achieved anything useful.

One of the interesting things along the way is the judgment’s lucid excursion on what it describes as the English Common Law principle of “fairness” (para 83ff). The Burials Act 1857 (which concerns archaeological exhumation, something the act’s creators had clearly not designed it to cover, as archaeology barely existed then) is what’s known as a “sparse” act – indeed, it is a “paradigm example of a sparse Victorian statute” (para 88). This means the act itself is pretty restrained on what it says, but, to see that the act’s implementation was always fair, the gaps were expected to be filled in by courts interpreting Common Law.

The judgment quotes a passage written by Lord Mustill (para 89). Arguably this seems at least partly to offer a case against the need for a UK constitution. We do, it seems to say, in effect have a constitution (“there is a presumption that [an Act of Parliament] will be exercised in a manner which is fair in all the circumstances”, etc), but one that can be interpreted according to the mores of the time (“the standards of fairness are not immutable”, etc). In this manner (for example), we do not end up with something that was deemed appropriate in 1791 (the right of individuals to keep and bear arms) carried forward unchanged into times when it might seem less appropriate. But who knows. As I’ve said before, I’m no lawyer.

In any event, that leads into, first, the observation that the Burials Act 1857 allows for a consultation were that deemed necessary for a fair decision (para 92), but that none of the circumstances under which Common Law would recognise a duty to consult actually applies (para 98).

That, then, leaves a requirement to consult, if there be any, a matter of the Secretary of State for Justice needing to be fully informed (para 99ff and para 136ff). So what, ask the judges, did the Secretary of State know? A great deal, it seems, including ten points which link Richard III’s place of burial to Leicester (“The Cathedral was close to the battlefield where the men who fought for and with Richard III were killed, and were probably buried”, etc). The 11th says the Secretary would have been more than aware that “there was a great deal of strong public feeling” about the reburial (para 143).

In other words, the Secretary knew all he needed to, including the facts that Henry VII and our present Queen were both happy for Richard III to be buried in Leicester. “It is difficult to see what more the Secretary of State needed” (para 145). Proving the point, nothing new came out in Mr Clarke’s presentation of the case for the Plantagenet Alliance (para 146).

It didn’t help that, as I described in my review of the hearing, the Court was not impressed with Mr Clarke’s inability to explain exactly what he meant by a public consultation. “His fundamental problem”, says the Judgment, “was that he was not able to formulate any limit to the generality of the duty to consult” (para 156). The fact is, it continues, regarding the reburial site, there are “only two possible contenders (Leicester and York), and the rival arguments are clear and known to the decision-maker” (para 158).

Leicester Mercury’s Peter Warzynski before the result

That I think is the key stuff. But there are several little gems it would be a shame to miss. Here are some.

1. We learn that the Ministry of Justice (which does not routinely publish such figures) receives annually about 1,200 applications to exhume named individuals buried generally less than 100 years ago; and about 200 to exhume “ancient”, unnamed persons “for archaeological purposes” (para 106). Note that these applications might be for more than one person; as we know, Leicester University’s was in this case for six, but they can be for many more than that.

2. The Ministry of Justice could recall only one other instance of a request about “named ancient remains” (para 108). He or she remains unnamed: does anyone know who that was?

3. The Plantagenet Alliance “put some weight” on a document published by English Heritage and the Church of England in 2005, called Guidance for Best Practice for Treatment of Human Remains Excavated from Christian Burial Grounds in England (see my earlier blog). Another document relied upon by the Alliance was Guidance for the Care of Human Remains in Museums, published by the government in 2005 (see this other blog).

The former, says the Judgment, “is neither MoJ guidance, nor guidance adopted by it, nor guidance adopted by ULAS or the [Leicester City] Council” (para 112). The latter, “By its title, …has no direct relevance to the issues here” (para 115), nor was it “guidance which any body promised that it would follow or represented itself as following” (para 117). That’s telling them.

4. There is an interesting, and it seems reasonable clarification on exactly what constitutes an exhumation licence. This was discussed on the hearing’s second day, as I reported (starting a little before the image of the application form). Mr Justice Ouseley rightly said that, read on its own, the licence issued to ULAS by the MoJ allows reburial of Richard III’s remains anywhere. Counsel for the university said no, you need to take into account the application form as well, which says reburial will occur in Leicester Cathedral: so the licence only allows reburial there.

The Judgment agrees with Ms Proops. “The licence must be construed in the light of the circumstances known at the time of grant.” They were planning to dig up six groups of human remains. If they found Richard III’s, the intention was for them to be buried in the cathedral, and if they found any others, they were not expected to be buried in the cathedral. So “the licence means that Leicester Cathedral is the only place in which ULAS can inter the remains of Richard III” (para 122). “There is no reason why the application form, and the letter from the MoJ which accompanied the licence, should not be read together… The letter and form confirm that the meaning of the licence… is the one which both applicant and grantor understood and agreed” (para 123).

This has use beyond the present case.

5. Were the Secretary of State for Justice to think the terms of a licence wrong, he could put them right. Had ULAS proposed to bury Richard III in a common burial ground, for example, he could have amended the licence (124).

This immediately disposes of one of the Alliance’s points, regardless of any other views on the matter, that there should have been a consultation when the licence was issued. At that stage, “the possibility the remains might be those of Richard III was remote”, and if in the event they were proved in fact to be so (remember at that point, none had been excavated), the Secretary could if he had so wished have amended the licence (para 128).

6. This leads into an interesting consideration of whether or not the licence might have been “quashed”. This was mentioned early in the hearing, when (apparently contrary to a position taken by the Alliance’s lawyers, who had explicitly stated that the terms of the licence should be quashed), Mr Clarke seemed to prefer to “revisit” rather than “quash”

Yet Mr Clarke’s argument, says the Judgment, if followed through, had the consequence that either the licence, or the reburial condition, would have had to be quashed. If the licence was quashed, the (unlicensed) exhumation would have been a criminal offence. Meanwhile, no new licence to exhume could be issued, as the remains have already been dug up (para 130). QED.

So the only option left would be for the Court to impose a different condition on the permission, after it had been acted on. That would be too much. “If the Court had the necessary power, the arguments against its exercise as a matter of discretion would be very powerful” (para 132).

7. Neither the university nor the council should have been in court at all. The former was not exercising a public function (para 162), and the latter “had no legal duty to consult nor power to intervene” (para 164). The claim against both “was bound to fail”. One might wonder why that was not apparent to all earlier in the proceedings.

8. Among information we see for the first time are quotations that explain the curious business of Leicester City Council, when late in 2013 it said it saw itself as “the official owner of the [king’s] remains”. This was a nonsense – in England and Wales the law does not treat human remains as property. How could the council be so ignorant of such a basic matter? And why did it want to claim ownership, anyway? What could it possibly have to gain, beyond costs and responsibilities which the council could not afford?

The immediate effect was to close down the hearing being held on November 26; it was moved to March this year and extended to two days. And this time, the council were added to the list of defendants (which alone, as we saw, cost it £85,900).

Now we know what was going on. If I was a city ratepayer, I would not be impressed. Neither were the judges. On one particular point, “The Council’s intervention… was unnecessary, unhelpful and misconceived” (para 164). It’s all to do, we are told, with Sarah Levitt, Head of Arts & Museums at Leicester City Council.

Ms Levitt has featured rarely in the huge media coverage about the excavation of Richard III’s remains. Earlier this year we learnt that she is on the board of trustees for the visitor centre under construction at the former Alderman Newton school. The building was bought by the council for £891,000 and it is spending £4,190,000 on the development. However, said Ms Levitt, the centre is not expected to make a profit.

In our respective books, Philippa Langley and I both make it clear that Ms Levitt, as a council representative, was important to Philippa in the months of planning and permission-seeking before the dig took place. We learn from the Judgment, for example, that it was Ms Levitt who introduced Ms Langley to the Dean of Leicester Cathedral (para 36). In her book’s acknowledgments, Ms Langley calls Ms Levitt a “colleague and friend”. Perhaps, without her help, the dig would never have happened.

Perhaps that is how Ms Levitt sees it.

“From late April 2011,” says the Judgment, “the Council started developing its view of its own role in the project. It saw itself as very much party to it. Ms Levitt wanted to work on the specification for consultation on deciding what to do with any remains which might be found, and who would be responsible for reburial. Consultation would take time. She saw consultation as important to the Council, and in her application of the Department for Culture, Media and Sport (“DCMS”) “Guidance for the Care of Human Remains in Museums”. She expressed the point to Ms Langley in August 2011 that adherence to set guidelines included an “obligation to consult and respect the wishes of living decedent [sic], the Royal family, or any other descendant”. The Council claimed to be responsible for all human remains found, and to have decision-making responsibility. This was not, however, made public.” Neither did the archaeologists express any views on it: “The Written Scheme of Investigation [prepared by ULAS, MP] was silent on this aspect.” (Para 38, entire.)

Skeleton 1, that would in time be identified as that of Richard III, was excavated in September 2012. Now Ms Levitt saw her “decision-making responsibility” come into play.

“The likelihood of the remains being those of Richard III prompted Ms Levitt of the Council to take up the question of consultation again. She said that it was agreed that she would be the lead officer on the reburial process, both as to whether the remains should be buried in Leicester, and if so, where and how. The remains should be treated as if they belonged to the Council. It should implement its policy on “consulting key stakeholders”. These were the Council, the Society, the Cathedral, the Royal Household, possibly the Council of Faiths, the Secular Society, the University “and other funders”. This would cover the principle of reburial, the manner of reburial and the location. She said, “[p]rovided no major objections, we would request the cathedral to inter there…”. The final decision would be with the Council, which would be mindful of public opinion. The first task was to develop a decision-making process, which she was to lead. She saw it as requiring of the Council the impartiality of an electoral returning officer. She referred to the strong local support for burial in Leicester Cathedral, but others supported York Minster, and Westminster Abbey. She stated that other candidates could emerge.” (Para 51, entire.)

Ms Levitt informed the mayor that the Queen should be involved.

“Ms Levitt confidentially briefed the City Mayor, Sir Peter Soulsby, on 20th September 2012 about this process. She envisaged a decision-making process group, including the Council, the Dean and the Lord Lieutenant as representing HM The Queen, with various expert bodies in support. Part of its work was to identify a decision-making body, which was not to be the Council because of its interest. She said that the Council nevertheless had a duty to consult on significant matters and so there would be consultation as part of the process.” (Para 53, entire.)

Richard Buckley urged caution. “[C]oncerned that the field should not be opened to all claimants, [he] emphasised that the starting point had to be that reburial would take place in Leicester, unless some there were good reasons to the contrary [sic, MP]. He made the point that ULAS was the licensee of the remains with a duty to rebury them, and the MoJ would have to be involved were the remains to be buried elsewhere” (para 54).

But Ms Levitt was not to be stopped.

“Ms Levitt had developed her thinking further by 3rd October 2012, when she presented another confidential briefing to the City Mayor of a proposed announcement of the Council’s intentions in mid-to-late November. The joint announcement by the Council, ULAS and the Diocese was to be that re-interment would be in Leicester Cathedral, with a reasoned justification. That was to be followed by a process for considering claims from other locations, representations from those who felt they had a legitimate interest and the views of the Palace and Cathedral. There would be consultation via the Council’s website; an advisory panel would then consider requests for re-interment.

“Ms Levitt envisaged that requests for re-interment elsewhere than Leicester Cathedral would be decided upon by adapting the DCMS “Guidance for the Care of Human Remains in Museums”. This was thought to offer a reasonable approach, albeit that the remains were not in a museum. The decision would be made by the Council and the University. There would be an appeal process for disappointed claimants.

“The Council’s plans continued to develop, and become more specific as to what was to be done, both before and after the announcement about claims for alternative reburial locations. The decision-maker was then to be the Council in consultation with the University, and ultimately the City Mayor. However, the attempt to agree a memorandum of understanding with the University ran into opposition from ULAS, which contended that the Council had no responsibility for reburying or deciding on reburial for the remains. It argued that had been dealt with by the licence and/or was for the MoJ. Mr Buckley did not agree with the Council’s proposals for handling competing claims for re-interment. In the end, nothing came of the Council’s proposals for consultation, which were not made public. Reference was made in a draft City Council press release to a more general public consultation as follows: “If and when the identity of the remains are confirmed [sic], there will be an opportunity for the public to comment on the plan [for re-interment in Leicester Cathedral]”. This sentence was, however, removed from the final draft after Mr Buckley voiced objection to it.” (Paras 55–57, entire.)

All this led to the council claiming, at the first substantive hearing on November 26 2013, that it was the “legal sentinel” of the remains, and “the sole body entitled to take the decision as to where the remains were to be reinterred”. The council’s counsel, Mr Norman Palmer QC (Hon.), “indicated, to considerable surprise, that the Council would make its decision after carrying out a public consultation” (para 78).

And so the hearing was adjourned until this March. The council subsequently said it realised it had been “misconceived”, but sadly for the ratepayers of Leicester (£85,900), the Plantagenet Alliance, “undeterred by that volte face, nevertheless continued with the claim against the Council, even to the extent that the Council became its second target, ahead of the University” (para 79).

It seems unnecessary to add much. Encouraged by Ms Levitt, Leicester City Council came to the view that it should take responsibility for the remains of Richard III, above all other parties. Richard Buckley, at least, pointed out that there were matters such as the exhumation licence that would interfere with what even the council came to accept were “misconceived” views. But perhaps the most damaging claims were that consultation was required and would take place. This would, it seems, have been a form of consultation that meant one thing to the council, who apparently believed the remains should stay in Leicester, and to the public, who would, one imagines, have seen a consultation as something that would not just listen to their views, but take them into account and act on them. Could it even be, had not Ms Levitt cooked up the prospect of consultation about the reburial, there might not have been a judicial review at all?

When Mr Justice Haddon-Cave ordered permission for the review proceedings in August 2013, he listed as the first challenge from the Plantagenet Alliance, “The Decision of the Secretary of State for Justice… to grant the Licence “without consulting, or attaching requiring the licensee to consult…”” (para 9).

His first “arguable proposition” was that “There was a legitimate expectation that the Secretary of State for Justice would… consult widely…” (para 22). In evidence, he offered several points, starting with the English Heritage and Church of England Guidance noted above. Then, at point 5, comes this:

“…there is evidence that a plan to consult interested parties was mooted at an early stage by the University of Leicester, but then appears to have been quietly dropped. In an e-mail dated 25th September 2012, the Head of University of Leicester Archaeological Services (Mr Richard Buckley) wrote inter alios to the Head of Leicester Arts and Museums Services (Ms Sarah Levitt) [and, MP] another member of the University (Mr Richard Taylor) stating: “I accept that there are conflicting views of where the reburial should be and that these need to be taken into account.” Mr Taylor replied: “We should work together to make sure that we retain as much control as possible. I think that the question is ‘Leicester is the plan, are there reasons why not?’ rather than ‘Where should he be reinterred?’. The Claimant [the Plantagenet Alliance, MP] has not (yet) been provided with a copy of Ms Levitt’s reply. Further, an undated press release prepared by the University of Leicester (which has come into the possession of the Claimant) states under the heading “What about alternative locations to Leicester?” as follows: “If and when the identity of the remains are confirmed, there will be an opportunity for the public to comment on the plan.” This sentence does not appear in the press release as published on 14th January 2013. It is not clear why.” (Para 29, entire.)

With hindsight, we might see Mr Buckley and Mr Taylor’s unexplained remarks as being some form of response to a discussion involving Ms Levitt. We might also wonder if whatever had become available of such correspondence to the Plantagenet Alliance, encouraged a belief that consultation was a proper expectation. It seems unlikely that the Plantagenet Alliance have any grounds for appeal. But the story is not yet over.

Ather Mirza, Leicester University Press Office, after the result