Duke of Sussex loses appeal over security protection

What is the background?

When the Duke and Duchess of Sussex stepped back from Royal duties in 2020, the security protection which they had previously been afforded in the UK was withdrawn.

The decision in respect of the Sussexes’ security arrangements was taken by the Executive Committee for the Protection of Royalty and Public Figures (known as ‘RAVEC’), which is responsible for security arrangements for individuals assessed to be at particular risk.

The decision was communicated by way of a letter from the Chair of RAVEC dated 28 February 2020 in which RAVEC stated that it would “continue to monitor the security of the Sussex family” but that the existing security provision provided by the Metropolitan Police would “no longer be appropriate” and that there was “no basis for publicly-funded security support” for the Sussexes. The letter went on to note that it was “difficult to judge what might be appropriate without knowing the Duke of Sussex’s forward programme” and that it may be necessary to issue guidance “about the support to be provided and the mechanisms for liaison and the approval of support in individual cases”.

What was the legal basis for the claim?

The Duke of Sussex sought to challenge the decision of RAVEC by way of Judicial Review claim against the Secretary of State for the Home Department who has ultimate responsibility for matters of national security.

The claim was unsuccessful at the first instance and permission to appeal was granted on the grounds that RAVEC’s decision was unlawful on the basis that RAVEC failed to apply its own policy and acted irrationally by failing to treat the Duke as falling within the RAVEC cohort.

The policy in question was the RAVEC terms of reference which provided that, in order to determine which individuals should receive protection measures, RAVEC would evaluate the “risk analysis conducted by the Risk Management Board”. The Duke of Sussex’s complaint was that RAVEC did not commission any risk analysis from its Risk Management Board before deciding to remove him from the RAVEC cohort.

The judge at first instance held that whilst the the terms of reference were ‘justiciable’, they were not to be treated as “hard-edged policy documents”. He went on to conclude that, in any event, RAVEC had good reason for departing from its policy, that reason being that it was not deemed necessary given that alternative governance arrangements were to be established on a case-by-case basis in future. As to the question of whether the Duke had been treated differently from other individuals protected by RAVEC, the judge found that the ‘Other VIP Category’ was “wholly exceptional” and that there was no public law error in RAVEC’s treatment of the Duke as his position was different from that of the comparators identified.

On appeal, the Duke of Sussex argued that:

• The judge wrongly applied the standard of review in relation to whether there is a good reason to depart from policy – such reason must be “cogent and compelling” and “spelled out clearly, logically and convincingly”
• The judge wrongly deferred to the judgement of RAVEC and should not have presumed that the decision maker’s interpretation and understanding of the policy was correct
• There cannot have been a good reason for the withdrawal of protective security given that the risks he faced had not reduced as a result of his change in status
• It was not open to RAVEC to decide that he was not in the ‘Other VIP Category’ without commissioning a risk analysis from the Risk Management Board and it was irrational to conclude that his position was not analogous to those other individuals protected by RAVEC.

Whilst the government’s position was that the judge’s decision was right, there was one aspect of the decision with which the government did not agree. This concerned the test to be applied when determining whether a decision maker had good reason to depart from its policy. Whereas the judge had said that it was a question for the court to decide, the government argued that the court could only “disturb the exercise of the decision maker’s discretion” if it was unreasonable.

What did Court of Appeal decide?

In his leading judgment Sir Geoffrey Vos, Master of the Rolls, answered the following questions:

Did something go wrong with the process?

Whilst the Duke’s argument, that something must have gone wrong with the process given that he was still subject to the same risks as before stepping back from Royal duties but would henceforth be provided with a lower level of security, was “powerful”, the court could not see how the Duke’s “sense of grievance translates into a legal argument for the challenge to RAVEC’s decision”.

Should RAVEC have placed the Duke in the ‘Other VIP Category’ by analogy with other individuals protected by RAVEC?

The court noted that the Duke’s position was unique, that RAVEC had not deprived him of “all protection for all time” and accordingly held that the steps taken by RAVEC in relation to the comparator individuals added nothing to the legal question for determination.

Was the judge right to decide that RAVEC had a good reason for departing from its policy?

This was, the court said, the “crucial question”. The court explained that there is “a spectrum of different kinds of policy” and that the “required deference” as to whether the decision maker had good reason to depart from the policy “is also on a spectrum”.

In respect of the government’s argument that the court can only review an authority’s reasons for departing from a policy if it is unreasonable, the court held that there is “no bright line rule…that good reasons can only be reviewed if they are irrational or unreasonable”.

In dismissing the appeal, the court noted that RAVEC’s terms of reference were “inward facing and unpublished” despite being formal policies and that they concerned an area of national importance which was “peculiarly within the expertise of law enforcement agencies, RAVEC and the Royal Household”. As such, the judge was right to “respect the expertise of decision makers in this space” and to accordingly place weight on the reasoning of the witnesses, in particular the “compelling reasons” given by the Chair of RAVEC for having concluded that “the appropriate course was to establish bespoke arrangements” for when the Duke returned to the UK on future visits and that his security “would be considered as appropriate depending on the circumstances”. The court found that it was “impossible to say that this reasoning was illogical or inappropriate”.