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

A statutory power which contains no express procedural safeguards may nevertheless be subject to common-law requirements of fairness. However, there is no general common-law duty to consult. Such a duty normally requires a statutory obligation, a promise, an established practice, or exceptional conspicuous unfairness. The Tameside duty is distinct: it asks whether a rational decision-maker could have acted without considering particular information or making further inquiries. It is not a means of imposing consultation.

Under section 25 of the Burials Act 1857, the Secretary of State had an implied power to amend an exhumation licence without an application. The licence in this case permitted re-interment of Richard III’s remains only in Leicester Cathedral. The failure to revisit that condition was rational, and no duty to consult arose.

The claimant, a company representing a small number of collateral descendants of Richard III, sought judicial review of decisions concerning the exhumation licence granted to the University of Leicester under section 25 of the Burials Act 1857. The remains discovered in Leicester were subsequently identified as those of Richard III.

The claimant argued that the Secretary of State should have consulted descendants, the public and other interested bodies before granting the licence, or should have revisited it after identification of the remains. It also challenged decisions of the University and Leicester City Council concerning re-interment in Leicester Cathedral. The central issues were whether consultation or further inquiry was legally required, whether the licence could be amended without an application, and which body had legal responsibility for the re-interment decision.

1. Standing. Although the claimant’s genealogical connection was attenuated, the issues had sufficient wider public importance to give it standing as a public-interest litigant.
2. Fairness and consultation. Common-law fairness may supplement a sparse statutory scheme. There is, however, no general duty to consult. Consultation may be required by statute, promise, established practice or exceptional conspicuous unfairness. The asserted category of exceptional historical cases was too uncertain and open-ended to provide a principled basis for a duty.
3. Tameside inquiry. The duty to make sufficient inquiry is a rationality duty, not a process duty. The court must first identify the material known to the decision-maker and then ask whether no reasonable decision-maker, possessing that material, could have acted without further inquiry. The Secretary of State knew the principal historical, geographical, religious, public and institutional considerations. Further consultation might have been desirable or politic, but it was not rationally necessary.
4. Licence. Section 25 of the Burials Act 1857 conferred a broad discretion, subject to rationality and the general law. The Secretary of State also had an implied power to amend a licence without an application. Properly construed in its context, the licence required Richard III’s remains to be re-interred in Leicester Cathedral unless amended.
5. Other defendants. The University and its archaeological unit were acting as private bodies and owed no public-law duty to consult. Leicester City Council had no legal duty or power to determine re-interment once the licence had been granted and the remains removed from its land.

The application for judicial review was dismissed.

First-instance judicial review proceedings. No prior appellate decision is stated in the judgment.