H.R.H. The Prince Henry Charles Albert David, Duke of Sussex, R (on the application of) v Secretary of State for the Home Department

A public authority may formulate a general policy on whether privately funded specialist police protection should be made available, even though the statutory power to provide and charge for special police services belongs to the chief officer of police. A decision-maker need not resolve every difficult question about another authority’s statutory powers before expressing a policy view, particularly where the legal position is genuinely uncertain and policy reasons independently determine the outcome. The rule against fettering applies to the holder of the statutory discretion. General policy may be expressed in unqualified terms where the decision-maker remains willing to consider departure in an individual case. Procedural fairness does not ordinarily require representations from one affected person before deciding a general issue of policy.

The claimant challenged the Home Secretary’s decision to refer to RAVEC the question whether a person outside its usual protective-security cohort should be permitted to receive Metropolitan Police protection if willing to reimburse its cost. RAVEC decided in principle that privately funded protective security should not be permitted.

The challenge alleged that the decision-making was ultra vires, that RAVEC misunderstood the scope of the charging power under the Police Act 1996, failed to make reasonable enquiries, acted irrationally, and breached procedural fairness. Permission had previously been refused on the papers by Swift J. The issue before Chamberlain J was whether the renewed application disclosed an arguable ground for judicial review.

1. Permission refused. Neither the Home Secretary’s decision to refer the issue to RAVEC nor RAVEC’s decision was arguably unlawful.
2. Section 25(1) of the Police Act 1996 gives the chief officer of police the power to provide and charge for special police services. That did not prevent the Home Secretary or RAVEC, as her delegate, from formulating a policy view about whether particular specialist protective-security services should be made available. No application had been made to the Commissioner to exercise the statutory discretion.
3. The rule against fettering applies to the authority on which the statutory discretion is conferred. It did not require RAVEC’s general policy view to be expressed with an express reservation for exceptions. In any event, the Home Secretary confirmed that RAVEC would consider whether to depart from its in-principle view in an individual case.
4. There was no general duty to determine every conceivable legal question about the extent of another public authority’s powers before expressing a policy opinion. RAVEC’s policy and moral reasons independently supported its conclusion. Its view that the application of section 25(1) to protective security was uncertain was also permissible, given the different factual context and the factors identified in Harris v Sheffield United Football Club Ltd and Leeds United Football Club Ltd v Chief Constable of West Yorkshire Police.
5. The complaint about reasonable enquiries was unarguable. A decision-maker is not generally required to investigate previous exercises of a statutory discretion by other authorities, especially where there was no comparable precedent. The claimant also identified no irrational distinction between RAVEC’s cohort and other individuals.
6. It was rational to consider at the in-principle stage the effects on fairness, limited specialist resources and the risk of an uncontainable precedent. The issue was one of general policy, not an individualised security assessment. RAVEC’s terms of reference did not arguably require representations from the claimant before that general issue was decided.

• High Court (Administrative Court): Swift J refused permission on the papers on 15 February 2023. On renewal, Chamberlain J refused permission to apply for judicial review.