The Duke of Sussex, R (On the Application Of) v Secretary of State for the Home Department

Factual and Procedural Background

The Plaintiff sought a declaration through judicial review proceedings that the protective security arrangements applied to him on visits to the UK since June 2021 were and continue to be unlawful. The Defendant is the Secretary of State for the Home Department (SSHD), responsible for national security and personal protection. Permission to apply for judicial review was granted on three grounds by Judge Lane, but the claim was dismissed. Permission to appeal was granted on two grounds by Lord Justice Bean.

The main issue on appeal concerned whether the Executive Committee for the Protection of Royalty and Public Figures ("RAVEC") had good reason to depart from its 2017 Terms of Reference (ToR 2017) when it decided on 28 February 2020 to withdraw protection from the Plaintiff and his spouse by 31 March 2020. It was undisputed that RAVEC did not commission a risk analysis from its Risk Management Board (RMB) immediately before or after this decision, contrary to ToR 2017 requirements. Around this time, the Plaintiff and spouse relocated abroad.

A subsidiary issue was whether the Plaintiff was unlawfully treated differently from individuals in the "Other VIP Category" who receive protection from RAVEC despite never carrying out public State functions.

The Plaintiff’s complaint extended beyond the decision letter, challenging the ongoing security arrangements applied during visits to the UK from June 2021 onwards. A confidential hearing was partly held due to the sensitivity of security arrangements.

Legal Issues Presented

1. Whether RAVEC had good reason to depart from its ToR 2017 by not commissioning a risk analysis from the Risk Management Board before withdrawing protection from the Plaintiff.
2. Whether the Plaintiff was unlawfully treated differently compared to other individuals protected by RAVEC, specifically those in the "Other VIP Category".
3. Whether the ongoing protective security arrangements applied to the Plaintiff during UK visits since June 2021 were lawful.

Arguments of the Parties

Plaintiff's Arguments

• The judge applied an incorrect standard of review regarding the requirement for a "good reason" to depart from a justiciable policy; such reason must be cogent, compelling, and clearly articulated.
• The judge improperly deferred to the decision maker’s interpretation of the policy; no presumption should exist that the decision maker correctly understands its own policy.
• The process was flawed because the withdrawal of lifelong protection was unjustified given unchanged risk and impact levels faced by the Plaintiff.
• It was irrational for the decision maker to conclude that the Plaintiff was not in the "Other VIP Category" without commissioning a risk analysis.

Defendant's Arguments

• The judge was correct in holding that the bespoke arrangements were reasonable and appropriate for the Plaintiff's unique circumstances.
• A risk analysis from the Risk Management Board would have added no practical value given the alternative governance arrangements tailored for the Plaintiff’s visits.
• The decision maker’s expertise justified the approach taken, supported by contemporaneous threat assessments and the bespoke process described in the decision letter.
• The review of the decision maker’s reasons for departing from policy should be on the basis of unreasonableness or irrationality (Wednesbury standard), not a more intrusive standard.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Nadarajah) v. Secretary of State for the Home Department [2015] EWCA Civ 1363	Public bodies must follow their own policies unless there is good reason not to, grounded in fairness and good administration.	The court applied the principle that a public authority’s promise or practice must be honoured unless objectively justified.
Mandalia v. Secretary of State for the Home Department [2015] UKSC 59	Guidance or policy must be followed unless there is a good reason to depart, and reasons must be cogent and clearly explained.	Supported the principle that departure from policy requires cogent reasons and the court scrutinises such reasons with intensity.
R (HZ) v. Secretary of State for the Home Department [2023] EWHC 660 (Admin)	Reaffirmed the principle that policies must be followed unless there is good reason not to.	Reinforced the flexible nature of the good reason principle in judicial review.
Secretary of State for the Home Department v. Rehman [2001] UKHL 47	Deference to executive expertise in matters of national security; courts should not usurp decision makers’ functions.	Court recognized the constitutional importance of respecting expertise and discretion in national security decisions.
Regina (Begum) v. Special Immigration Appeals Commission [2021] UKSC 7	Emphasized respect for executive assessments due to institutional capacity and democratic accountability.	Supported deference to decision makers in sensitive areas, consistent with Rehman.
Secretary of State for Education and Science v. Metropolitan Borough of Tameside [1977] AC 1014	Judicial review of administrative decisions requires irrationality to overturn adequacy of investigation.	Applied to emphasize the high threshold to challenge decisions involving national security.
Hopkins Homes Ltd v. Secretary of State for Communities, Local Government [2017] UKSC 37	Courts should respect the expertise of specialist decision makers and presume correct understanding of policy.	Applied to underscore respect for specialist knowledge in assessing decisions to depart from policy.
R (Munjaz) v. Mersey Care NHS Trust [2005] UKHL 58	Departure from policy or code requires cogent and compelling reasons clearly articulated.	Plaintiff relied on this to argue for a high standard of justification for departing from policy.
R (X) v. Tower Hamlets London Borough Council [2013] EWHC 480 (Admin)	Confirmed the requirement for clear and convincing reasons to depart from policy.	Supported the principle that public bodies must seriously consider policies and depart only for good reasons.
R (McFarland) v. Secretary of State [2004] UKHL 17	Courts decide the meaning of policy statements objectively without deferring to the decision maker.	Discussed in relation to interpretation of the ToR and the scope for deference.
R (Hemmati) v. Secretary of State for the Home Department [2019] UKSC 56	Policies have significant legal effect; courts are final arbiters of their meaning.	Supported the principle that courts decide policy interpretation as a matter of law.
Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223	Established the standard of irrationality (Wednesbury unreasonableness) for challenging administrative discretion.	Defendant argued that departure from policy should only be disturbed if Wednesbury unreasonable.
R (Lord Carlile) v. Secretary of State for the Home Department [2014] UKSC 60	Explained the constitutional and pragmatic basis for judicial deference to executive judgment in national security.	Informed the court’s approach to deference and the balance between judicial review and executive discretion.
R (Good Law Project Ltd) v. The Prime Minister [2022] EWCA Civ 1580	Distinguished types of government policies and the duty to follow them; some policies do not create enforceable duties.	Used to illustrate the spectrum of policies and the appropriate degree of judicial scrutiny.

Court's Reasoning and Analysis

The court began by affirming that the ToR 2017 and successor documents were justiciable policies that a public body must follow unless there is a good reason not to. The court emphasized the flexible ("protean") nature of the good reason principle, particularly given the constitutional and national security context, requiring deference to the expertise of decision makers such as RAVEC.

The court found that the ToR 2017 should not be read as hard-edged policy documents mandating a risk analysis from the Risk Management Board in every case. The contemporaneous email exchange between the Chair of RAVEC and the Chair of the Risk Management Board showed a deliberate decision not to commission a further risk analysis for the Plaintiff, replaced by bespoke arrangements tailored to the Plaintiff’s changed status and residence abroad.

The court accepted the evidence of the Defendant’s witnesses, who explained that the bespoke approach allowed for case-by-case consideration of the Plaintiff’s security needs on UK visits, informed by threat assessments and expert input from the Metropolitan Police Service. This bespoke process was rational and appropriate given the Plaintiff’s unique circumstances.

Regarding the Plaintiff’s argument that he was treated differently from others in the "Other VIP Category," the court found material distinctions that justified different treatment. The Plaintiff’s position was unique, and the bespoke arrangements did not constitute unlawful discrimination or irrationality.

The court rejected the Plaintiff’s contention that the judge applied the wrong standard of review or erred in deferring to the decision maker’s expertise. It held that the court must scrutinize reasons for departure from policy with appropriate intensity depending on the sensitivity of the subject matter, but that in national security matters, significant deference is warranted.

The court concluded that there was a legally sufficient and cogent reason for RAVEC’s departure from the ToR 2017 policy requiring a risk analysis from the Risk Management Board, and that the ongoing protective security arrangements were lawful.

Holding and Implications

The court’s final decision was to DISMISS the Plaintiff’s appeal, upholding the judge’s dismissal of the judicial review claim.

The direct effect is that the protective security arrangements applied to the Plaintiff on visits to the UK since June 2021 are lawful and consistent with RAVEC’s discretion to depart from its usual policy for good reason. No new precedent was established beyond affirming the flexible application of the good reason principle in the context of national security and the appropriate deference to expert decision makers. The bespoke arrangements reflect a lawful exercise of discretion tailored to the Plaintiff’s unique circumstances.