VIP Communications Ltd (In Liquidation), R (On the Application Of) v The Secretary of State for the Home Department

VIP Communications Ltd (In Liquidation), R (On the Application Of) v The Secretary of State for the Home Department

Section 5(2) of the Communications Act 2003 does not confer power on the Secretary of State to direct Ofcom not to comply with its statutory duty under section 8(4) of the Wireless Telegraphy Act 2006, as there are no clear words in the legislation authorising such an override; the Direction was ultra vires and unlawful.

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
Civil Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
Ultra Vires, Statutory Duties, Delegated Legislation, National Security, Licensing Regimes
Administrative Law Telecommunications Law Statutory Interpretation Ultra Vires Statutory Duties Delegated Legislation National Security Licensing Regimes

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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

Civil Appeal / Court of Appeal Judgment

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 power to override statutory duties imposed by primary legislation

Ratio Decidendi

Section 5(2) of the Communications Act 2003 does not confer power on the Secretary of State to direct Ofcom not to comply with its statutory duty under section 8(4) of the Wireless Telegraphy Act 2006, as there are no clear words in the legislation authorising such an override; the Direction was ultra vires and unlawful.

Court Disposition

Appeal dismissed

Orders

  • The Direction given by the Secretary of State on 25 September 2017 to Ofcom under section 5(2) CA 2003 is quashed.
  • No relief under section 31(2A) of the Senior Courts Act 1981; the Direction is unlawful.