7 September 2013

Climbing the Mountain: How to Simplify Reading Goals

In a recent post, I considered an evolutionary biology metaphor's usefulness for learning law.1 In this post, I take that idea a step further, and show how climbing a mountain's slope is easier than scaling its cliffs. R (The Plantagenet Alliance Ltd) v SS for Justice and the University of Leicester is examined.


High Court, Queen's Bench Division
Administrative Court

[2013] EWHC B13 (Admin)

15 August 2013

R (The Plantagenet Alliance Ltd) = Claimant
and
The Secretary of State for Justice = 1st Defendant
The University of Leicester = 2nd Defendant

The Honourable Mr Justice Haddon-Cave

The case is a popular one. Haddon-Cave J uses historical narrative, Shakespeare, and wit to grasp the reader's attention. Not all the popularity is attributable to Haddon-Cave J's illustrative style. The case concerns Richard III, an English king with a certain fame--the only one to be dug up 500 years after his death.

1. See the Slope for What it is

The slope leads to the peak, which represents knowledge of a complexity, which here is law. With experience, to read a case once is sufficient to understand it enough for its application. Till then, pace the valley below. Walk past the steep and rocky faces to find yourself at gentler slopes. This side is easy to climb because there are resting places on the steady gradient.

2. First Steps

Stroll to the first rest-stop, to discover the facts: seek these first for a clear framework; the case's technical details fit into this. Facts are the easiest part of case law to learn, because they are the human element--the story which brings the litigants to court.

In Plantagenet Alliance, the litigants are those with Richard III's skeleton (Leicester University), the authority who signed a licence to obtain the skeleton (the Secretary of State for Justice), and those who want a say in where that skeleton should live (the Alliance). Other relevant facts include event-chronology. Who did what and when?

The Secretary of State for Justice (SSJ) issued a licence to the University of Leicester to dig for Richard III. Under the Burial Act 1857 s 25, this procedure is the correct one. The SSJ gave instructions to reinter any positively identified remains.

The Plantagenet Alliance wanted to influence where Richard III would be reinterred. The SSJ denied their request. So they applied for Judicial Review (JR). The sought-result is to force a public body to re-examine an earlier decision. The defendants are public bodies--a JR requirement--for this case's purposes. JR requires other necessary factors.

JR challenges must be for legitimate reasons. There can be no unreasonable delay between the public body's decision and the JR application. Claimants must have standing, which means they need a close link with the decision's subject matter.

3. Rest Again

The second place to rest on the gentle slope may seem to jump ahead, but waiting at this height above sea-level eases later analysis: find out the court's conclusion. When you try to figure out the judge's reasons later, it will be possible simultaneously to work forward from the facts (from above), and backwards from the result (found now).

The result in Plantagenet Alliance declares the SSJ must decide Richard III's destination again, but this time with broader consultation in the decision-making. Haddon-Cave J suggests a special independent arbitrator is handed the decision, which may consult all the relevant parties.

4. Nearly There

The third rest-stop on the mountainside is to uncover the relationship between facts and law, which helps explain judicial reasoning, the ratio decidendi. In this case, for example, JR requirements must be complied with. Haddon-Cave J applies the facts to the JR rules.

The judge sensibly agreed the challenge was brought on acceptable grounds: the University of Leicester's decision to reinter at Leicester Cathedral without consulting interested parties raises questions.

The three month limit was excusable here, because the delay was reasonable. The Plantagenet Alliance could not proceed before they raised money for court costs. Moreover, until Richard III's skeleton was confirmed, their grievance did not exist. That is, the remains were not confirmed as Richard III's until after three months after the SSJ's decision. Before this time, there was no reason to consult the Alliance about Richard III's remains.

The Plantagenet Alliance had standing to bring a JR application. The reason for their relationship with Richard III is best summed up by a letter from Middleham's Mayor, cited late in the case report:
Richard III was a Monarch of this country. He was the last Plantagenet King and the last King to die in battle. He was a person of great historical significance. He is part of our heritage. These facts make his discovery and final resting place a matter of national importance. [34]
The Alliance claims to represent a portion of those national interests.

The SSJ created a legitimate expectation that certain groups and or individuals would be consulted about Richard III's destination. When there was no consultation, the SSJ breached the common law duty to 'act rationally and in accordance with the general law' (at [21]). This conclusion is bolstered by evidence of shady behaviour by the SSJ, whose duty was to issue the licence. That document caused the problems the case was brought to solve, because it granted the University of Leicester too-broad powers.

5. The Last Plateau

Thanks to Haddon-Cave J's judicial intervention, the Plantagenet Alliance (and others) will be consulted when the decision about where to reinter the old king is considered again. Notice that Haddon-Cave J does not tell the SSJ what decision to arrive at, only how to get there. This is the purpose of JR--to ensure public bodies decide with legitimacy and decorum.

6. Where's the Peak Gone?

You may notice that a plateau is not a peak. The slope ended on that plateau for this post because there is so much that could fill the knowledge gap between here and the peak.

With creativity, one might consider cases in the light of legal or political theory, which would increase complexity (of legal knowledge). And possibly increase one's ability to apply cases broader. One could explore the relevant law deeper to seek inconsistencies with the cases Haddon-Cave J cited. This would widen the perspective, too.

The point to this conclusion is that no matter how much a case is analysed--even with a simplifying technique such as the envisaged slope--there is always more to learn. I hope this does not discourage students from reading in the first place.

I actually wish for the opposite. That the peak is never reachable, that more can always be learned, explored, or criticised, makes law a remarkable discipline. Contrary to all those childish nightmares where goals and safety appear farther away the closer one gets, law's ever expanding realm keeps the subject fresh, and worthy of study: an ever-expanding subject is a scholar's dream, not a nightmare.

Note two particular words, 'read' and 'discipline'. No matter how easy learning law is made by metaphors, law's mastery requires hard work. That mastery is rewarded--first by praise, later by remuneration, and always with personal satisfaction--but to get there one must be disciplined, because the work is often hard. The work, however, gets easier exponentially, which means students must read, lots. The more one reads, the quicker one finds facts, decisions, and ratios, so the more enjoyable the process becomes.

Cases like this make the reading easier, and I leave you with Haddon-Cave J's enticing penultimate words to show you why:
I (…) urge the parties to avoid (…) the (legal) Wars of the Roses Part 2. In my view, it would be unseemly, undignified and unedifying to have a legal tussle over these royal remains. This would not be appropriate, or in the country's interests. The discovery of Richard III's remains engages interests beyond those of the immediate parties, and touches on Sovereign, State and Church. [40]


Endnotes
1 Richard Dawkins, The God Delusion (Black Swan 2007) 147.


Created: 6 September 2013. Version 1.0.





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