The Duke of Sussex, R (on the application of) v The Secretary of State for the Home Department

A public authority’s policy or established practice may be justiciable even where it concerns national security and the Royal Prerogative. The duty to follow it is context-sensitive. A good reason for departure may be established by the subject matter, the decision-maker’s expertise and constitutional responsibilities, and the practical utility of the prescribed process.

In national-security decision-making, the court must not substitute its own assessment of risk, impact or acceptable danger. Where no statute specifies relevant considerations, their identification is primarily for the decision-maker, subject to rationality review. Procedural fairness is likewise context-specific and does not ordinarily require disclosure of sensitive arrangements or use of a particular analytical tool.

The claimant challenged RAVEC’s decision of 28 February 2020 to withdraw his previous level of publicly funded personal protective security in Great Britain after he ceased to be a full-time working member of the Royal Family and moved mainly overseas. He also challenged arrangements made for later visits to the United Kingdom.

The grounds alleged failure to follow policy, irrationality, failure to consider material matters, inadequate transparency and procedural unfairness. The claim was issued on 20 September 2021. The court extended time for several grounds but considered the principal challenge to the 2020 framework substantially out of time.

1. Outcome. The application for judicial review was refused. Grounds alleging failure to follow policy, irrationality, failure to consider material considerations, lack of transparency and procedural unfairness all failed.
2. Policy and departure. RAVEC’s terms of reference had outward-facing elements and were susceptible to judicial review. But they were not hard-edged statutory provisions. Their meaning and scope had to be assessed in context, having regard to the subject matter, RAVEC’s expertise and its constitutional responsibilities. The Nadarajah principle therefore applied flexibly. RAVEC had a legally sufficient reason not to commission a separate Risk Management Board analysis: the bespoke, case-specific process was considered more suitable for the claimant’s unusual circumstances.
3. National security and rationality. The court’s task was supervisory. It was not entitled to substitute its own assessment of threat, vulnerability, impact or acceptable risk for that of RAVEC. The claimant’s status, background, profile, likely activities and the consequences of a successful attack were relevant matters, but RAVEC was entitled to weigh them differently and to conclude that his changed status justified a different framework.
4. Bespoke arrangements. The claimant was outside the ordinary RAVEC cohort, although he could re-enter it for particular visits or requests. That did not require application of the ordinary 2021 terms of reference or a further RMB analysis. The case-by-case process and 28-day notification requirement were not irrational.
5. Fairness and transparency. Procedural fairness depended on the context. The claimant and his representatives had sufficient channels through which the relevant security issues could be raised. An RMB assessment was an analytical tool, not a legal right or benefit. Sensitive information about other individuals and RAVEC’s arrangements did not have to be disclosed.
6. Delay. The 28 February 2020 decision established the framework and was challengeable when made. Later visit decisions did not postpone time running or convert the matter into a rolling judicial review. Time was nevertheless extended for certain grounds because of substantial overlap between them.

First-instance judicial review. The court refused the application.