Thursday, September 05, 2013

Richard III and The Hon. Mr Justice Haddon-Cave

I laughed when I heard that The Plantagenet Alliance was to use Article 8 of the European Convention on Human Rights (the right to respect for private and family life) to seek a judicial review of the decision to reinter Richard III’s bones in Leicester Cathedral. They argued that, as descendants of Richard, they should have been consulted.

Because Richard III has no direct descendants. The best the members of The Plantagenet Alliance  can be is descendants of his brothers of sisters, and their descendants are estimated to number in their millions. In other words, The Plantagenet Alliance has no more right to be consulted than anyone else.

But I reckoned without The Hon. Mr Justice Haddon-Cave. After hearing the Alliance’s case he granted it leave to seek judicial review.

His judgment is an odd document. It ends with the statement that “it would be unseemly, undignified and unedifying to have a legal tussle over these royal remains,” yet much of what goes before encourages just such a tussle. Haddon-Cave quotes MPs, local politicians and even counts the number of people who have signed a petition.

There was an excellent letter in the Leicester Mercury earlier this week from Helena Edwards of Birstall. She wrote:
There are lots of arguments to be had about Richard III's reinterment, but I find two compelling. 
Firstly, if a court over-rules the Ministry of Justice's licence to exhume and then rebury in Leicester cathedral, it will destroy the authority of that licensing system, which is essential to the preservation of the dignity of the human beings whose remains are moved.
Secondly, it will empower future hyena packs to cash in on the archaeological work of others, without ever having to initiate, organise, fund or take financial risks on complex multi-agency projects themselves. This can only harm the future of heritage investigation and protection projects, especially in times when state funding for such work is disappearing fast.
This seems to me exactly right. Archaeology takes matter such as the reburial of human remains immensely seriously and has established and widely accepted codes for dealing with them. There is no need for the law to come crashing in as though archaeologists have given no thought to the matter – I am reminded of a post I wrote long ago on school uniform and human rights.

Of course, there are times when judicial review of established professional or academic code is needed, but to cite Article 8 in this case still seems laughable to me.

Planes, Trains and Plantagenets put it well when the legal challenge was first announced:
There’s still a perception among some in the UK – including government ministers – that a ‘right to a family life’ is frivolous and silly. They say, laws around human rights lead to totally ridiculous legal decisions! Like dangerous criminals being allowed to stay as long as they buy a cat, and relatives of a 15th-century monarch having a trump card about where his body is buried! Human rights laws are therefore ludicrous and should therefore be struck down. 
And the Plantagenet Alliance going “ooh, we’re descended from siblings of a guy who’s been dead for 500 years. The right to respect for family life means we get to decide his burial place! You meanies!” doesn’t help with that perception. 
That’s bad! Human rights are important! Plantagenet Alliance – don’t do that! I know it’s really exciting being related to a famous dead king, and all, but please pick a way to bond over your heritage than something that affects real people!
I am not a lawyer (any more than Haddon-Cave is an archaeologist) so I shall rely for my analysis of the judgment itself on UK Human Rights Blog. There, David Hart QC points out that, where it touches on human rights legislation, the judgment appears to believe that you have a claim under Article 8 if your long-dead dead relative is famous, but not if he is obscure.

And I note that, more than once, it talks in an unqualified way about “descendants of Richard III”. If the judge is not misinformed on a central fact of the case he is hearing, he is using language in a remarkably loose way for a distinguished lawyer.

All in all I am reminded of the old legal maxim: Be ye never so high, the law is a ass.

3 comments:

Nigel Sollitt said...

You expose the weakness of your case. Your argument against King Richard III being re-interred in York consists solely of your dubious view of Article 8 of the European Convention on Human Rights being used to seek judicial review whilst you present nothing to say why he should be re-interred anywhere else. The fact is, a judicial review has been granted by those that matter! Further, regardless of the wishes of his descendants, King Richard III himself wished to be buried in York and his wishes should be respected. I can understand the dearth of argument from you because there is simply no argument that can outweigh the case for the final resting-place of this Yorkist King to be anywhere but York itself.

Anonymous said...

Nigel Sollitt, your argument for a York reburial has no weight whatsoever, given your reasons. Being a Yorkist king has nothing to do with the city of York. If that was the case then his own father, the Duke of York, would have been buried there. He is buried in Fotheringhay, in the heartland of Yorkist territory. Edward iv, another Yorkist king is buried in the royal mausoleum at Windsor.
In fact, despite the propaganda you may have heard, Richard left no will so no-one knows his wishes.

Nigel Sollitt said...

There is more weight for his resting place being at York than there is it being at Leicester. He regarded York as his home and his living descendants wanted him buried there. The only connection with Leicester is that his body was found there and the only reason his body was there is because he had been betrayed in battle and killed as a result of that betrayal. This is now all academic because, as we all know, he has been buried in Leicester but as far as I am concerned there is a small patch of ground in Leicester that will forever be York.