Connor Palmer & Ors v National Crime Agency
[2024] EWCA Civ 1095
R (on the application of VIP Communications Ltd (In Liquidation)) v Secretary of State for the Home Department
8 March 2023
[2023] UKSC 10
Supreme Court
The government can stop Ofcom from exempting certain equipment from needing a license if it's a national security risk, even if the law doesn't say so directly. The Supreme Court said the government's power to tell Ofcom what to do includes the power to stop Ofcom from doing something.
Key Facts
- •The appeal concerns the interpretation of section 8(4) of the Wireless Telegraphy Act 2006 (WTA 2006) and section 5(2) of the Communications Act 2003 (CA 2003).
- •Section 8(4) WTA 2006 mandates Ofcom to create regulations exempting wireless telegraphy equipment if certain conditions in section 8(5) are met.
- •Section 5(2) CA 2003 allows the Secretary of State to direct Ofcom to perform its functions in accordance with directions, notably for national security and public safety.
- •The dispute centers on whether the Secretary of State can direct Ofcom *not* to create exemptions under section 8(4) WTA 2006 based on national security concerns.
- •The case involves Commercial Multi-User GSM Gateway apparatus (COMUGs), which mask caller identification data, raising national security and public safety concerns.
- •VIP Communications Ltd, a liquidated company, challenged the Secretary of State's direction to Ofcom not to exempt COMUGs from licensing.
Legal Principles
A restrictive approach to statutory construction should be adopted; clear words are needed to override a statutory duty with secondary legislation.
Morris J in R (on the application of VIP Communications Ltd (In Liquidation)) v Secretary of State for the Home Department
Statutory interpretation involves an objective assessment of what a reasonable legislature would convey.
Lord Hodge in R (O) v Secretary of State for the Home Department [2022] UKSC 3
There is no general principle that a power to give directions cannot be used to prevent compliance with a statutory duty unless explicitly stated.
Lord Richards' judgment in R (on the application of VIP Communications Ltd (In Liquidation)) v Secretary of State for the Home Department
Outcomes
The Supreme Court allowed the appeal and dismissed VIP's application for judicial review.
The Secretary of State's power under section 5(2) CA 2003 to direct Ofcom extends to preventing Ofcom from making exemption regulations under section 8(4) WTA 2006 where national security is at stake. The court rejected the lower courts' interpretation that this would require explicit wording. The court held that Ofcom is carrying out its function when it refrains from issuing exemptions under a direction from the Secretary of State.