VIP Communications Ltd (In Liquidation), R (On the Application Of) v The Secretary of State for the Home Department [2020] EWCA Civ 1564 (20 November 2020)

VIP Communications Ltd (In Liquidation), R (On the Application Of) v The Secretary of State for the Home Department [2020] EWCA Civ 1564 (20 November 2020)

The Secretary of State does not have power under section 5(2) of the Communications Act 2003 to direct Ofcom not to comply with its statutory duty under section 8(4) of the Wireless Telegraphy Act 2006, absent clear words to that effect. The Direction was therefore ultra vires and unlawful.

Citation
[2020] EWCA Civ 1564
Parties
Claimant/respondent: VIP Communications Limited (In Liquidation); Defendant/appellant: Secretary of State for the Home Department; Interested Party: Office of Communications (Ofcom)
Jurisdiction
England and Wales
Judgment Date
20 November 2020
Procedural Posture
Appeal (administrative Law) / Court of Appeal Judgment on Appeal From High Court
Outcome
Appeal dismissed. The Direction was ultra vires and unlawful.
Legal Topics
Ultra Vires, Statutory Duties, Ministerial Directions, National Security, Licensing of Telecommunications Equipment
Administrative Law Telecommunications Law Statutory Interpretation Ultra Vires Statutory Duties Ministerial Directions National Security Licensing of Telecommunications Equipment

Case Brief

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Parties

VIP Communications Limited (In Liquidation)

Claimant/respondent

Secretary of State for the Home Department

Defendant/appellant

Office of Communications (Ofcom)

Interested Party

Procedural Posture

Appeal (administrative Law) / Court of Appeal Judgment on Appeal From High Court

Legal Issues

  1. 1 Whether the Secretary of State had power under section 5(2) of the Communications Act 2003 to direct Ofcom not to comply with its statutory duty under section 8(4) of the Wireless Telegraphy Act 2006.
  2. 2 Whether clear words are required to confer on the executive the power to override statutory duties imposed by primary legislation.

Ratio Decidendi

The Secretary of State does not have power under section 5(2) of the Communications Act 2003 to direct Ofcom not to comply with its statutory duty under section 8(4) of the Wireless Telegraphy Act 2006, absent clear words to that effect. The Direction was therefore ultra vires and unlawful.

Court Disposition

Appeal dismissed. The Direction was ultra vires and unlawful.

Orders

  • Order of Morris J quashing the Direction of 25 September 2017 affirmed.