Vip Communications Ltd, R (On the Application Of) v Secretary of State for the Home Department

A general statutory power to direct a regulator does not, without clear words, authorise a direction requiring it to disregard or override a duty imposed by another Act of Parliament. The expression “functions” may include statutory duties, but a direction must still relate to the carrying out of those functions and be in accordance with them. Where Parliament intends conflicting duties to be resolved, it can say so expressly. Alternative mechanisms for protecting national security do not make a restrictive construction absurd. A direction under section 5(2) Communications Act 2003 requiring Ofcom not to make exemption regulations required by section 8(4) Wireless Telegraphy Act 2006 was therefore ultra vires.

VIP Communications Ltd sought judicial review of a direction given by the Secretary of State to Ofcom under section 5(2) Communications Act 2003. Ofcom had concluded that the statutory conditions for exempting commercial multi-user gateways from individual licensing under section 8(4) Wireless Telegraphy Act 2006 were satisfied. The direction required Ofcom not to make the exemption regulations, relying on national security and public safety concerns.

The central issue was whether section 5(2) authorised the Secretary of State to override Ofcom’s duty under section 8(4). The issue had been considered differently by Rose J in Recall Support Services Ltd v Secretary of State for Culture, Media and Sport [2013] EWHC 3091 (Ch) and by the Court of Appeal in Recall Support Services Ltd v Secretary of State for Culture, Media and Sport [2014] EWCA Civ 1370.

1. The claim was allowed. The Direction was ultra vires and unlawful.
2. Section 5(2) Communications Act 2003 applies to Ofcom’s “functions”, a term broad enough to include the section 8(4) duty. That does not determine the permissible content of a direction. The direction must still be one “in relation to” the carrying out of the relevant function.
3. A direction requiring Ofcom not to perform the section 8(4) duty is not a direction concerning its carrying out. “In accordance with” means in line with, rather than subject to or overriding. Clear words would be required before a power to make secondary legislation could override a statutory duty imposed by another primary Act.
4. The constitutional and interpretive principles identified in R (Public Law Project) v Lord Chancellor [2016] UKSC 39, R (Ingenious) v HMRC [2016] UKSC 54 and R (UNISON) v Lord Chancellor [2017] UKSC 51 supported a restrictive construction. The express provisions in section 94(3) Telecommunications Act 1984 and section 3(5) Wireless Telegraphy Act 2006 demonstrated that Parliament knew how to resolve conflicting duties.
5. The court declined to follow Rose J’s contrary reasoning in Recall. The Court of Appeal had upheld the result on the continuing effect of the earlier exemption regulations and had expressly declined to reach a concluded view on the section 5 issue. EE Ltd v Office of Communications [2017] EWCA Civ 1783 provided substantial support for the claimant’s construction.
6. The construction did not create an absurd lacuna. National security could be protected through conditions or limitations in exemption regulations under section 8(3), or through a direction under section 132 Communications Act 2003. Relief was not barred by section 31(2A) Senior Courts Act 1981, and the court would in any event have disregarded that restriction for exceptional public interest.

First-instance judicial review proceedings. The judgment records earlier proceedings in Recall Support Services Ltd v Secretary of State for Culture, Media and Sport before the High Court, [2013] EWHC 3091 (Ch), and the Court of Appeal, [2014] EWCA Civ 1370. The present court allowed the claim and declared the Direction unlawful.