Judicial review in the headlines – Prince Harry v Home Office

The process

On application by a claimant, the court examines the decision to see if the decision was illegal, against human rights, irrational and/or procedurally fair. The court is therefore solely focused on reviewing whether the decision taken properly, rather than assessing whether they would have made the same decision on the same set of facts.

Such is the nature of judicial review challenges, there is no automatic right to be able o bring them. A potential challenger must file an application at the court promptly, and in any event within three months of the decision complained of, setting out the alleged grounds for the judicial review in full. The defendant (decision maker) then has 21 days to reply to the claim, setting out for the court the arguments against the challenge they wish the court to take into account. The court then decide, on the basis of these papers, whether the claimant should be given permission to continue.

Many judicial reviews fall at this hurdle, but if the court is persuaded that there is sufficient merit in the claim to allow it to continue, further detailed arguments are filed by the parties and the claim will progress to a hearing.

The fact that judicial review is an examination by the court of a decision that has been brought to their attention by a challenger who is seeking to point out the flaws in the decision is perhaps best reflected by the structure of the case name. Rather than a straightforward X v Y case name, the case name reflects that it is the Crown (through the courts) scrutinising the decision, giving this challenge the case name of R (on the application of the Duke of Sussex) v Secretary of State for the Home Department (an especially strange case name in this particular example given the family relationship between the Crown and the claimant!)

The Duke of Sussex’s case

In the Duke of Sussex’s case, he has challenged the decision concerning his security arrangements made by the Executive Committee for the Protection of Royalty and Public Figures (RAVEC) on behalf of the Home Secretary following his change in status in the Royal Family.

The allegations are that the decision made was unlawful as it failed without good reason to follow RAVEC’s own policy and that it was irrational, as RAVEC reached a decision that no reasonable decision-maker could have reached. The challenge further alleges that the Duke of Sussex also suffered procedural unfairness, as he was prevented from putting forward arguments he might have wished to, had he been aware of certain matters.

In February 2024, the High Court found that there had not been any unlawfulness in RAVEC’s decision making; any departure from policy was justified, the decision was not irrational, and the decision was not marred by procedural unfairness. The court went on to say that even if such procedural unfairness had occurred, the court would in any event be prevented from granting the claimant relief on the basis that, leaving aside any such unlawfulness, it is highly likely that the outcome for the claimant would not have been substantially different.

And this leads us to the Duke of Sussex’s current two-day stint at the court as he asks the Court of Appeal to revisit these findings. This will undoubtedly receive a lot of attention and be widely reported on, but the context is important in understanding the nuances of what the court is looking at and what decisions can be made in a judicial review challenge.

Blake Morgan’s Judicial Review team has extensive and highly regarded experience across numerous areas of public law and is recognised as a leader in this area. Find out more about how we can help here.