Guidance From The Supreme Court On Statutory Construction Emphasises Importance Of Context

• Law Firm: Herbert Smith Freehills
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Court Procedure, Trials & Appeals & Compensation, Construction & Planning
• Author: Mr Andrew Lidbetter, Nusrat Zar and Jasveer Randhawa
• Published date: 29 March 2023

In R. (on the application of VIP Communications Ltd (In Liquidation)) v Secretary of State for the Home Department [2023] UKSC 10, the Supreme Court considered issues of statutory construction in the context of conflicting legislative provisions, and confirmed that the Secretary of State did not act ultra vires in directing Ofcom to refrain from carrying out its statutory duty.

Key Points

• This decision provides authoritative guidance on the approach to statutory construction when a public body has apparently conflicting statutory duties.
• The courts should consider the wider context and purpose of a statutory scheme when considering legislation, to ascertain Parliament's intention.
• There is no general principle of statutory construction that in the absence of clear words, a statutory power to give a direction cannot extend to directing a person not to comply with a statutory duty under the same or another statute.

Background

Section 8(4) of the Wireless Telegraphy Act 2006 ("WTA") places a duty on Ofcom to make exemption regulations relating to licencing requirements if certain conditions are met. However, Ofcom is also subject to a duty under section 5(2) of the Communications Act 2003 ("CA") to act in accordance with any direction it receives from the Secretary of State on limited grounds, including national security. This judgment considered whether Ofcom's duty under section 8(4) of the WTA is overridden by its duty under section 5(2) of the CA. Specifically, the court assessed whether under section 5(2) the Secretary of State could instruct Ofcom not to comply with its duty under section 8(4).

In 2017, Ofcom announced its intention to make regulations under section 8(4) exempting commercial multi-user gateways ("COMUGs") from licencing requirements. COMUGs are gateway devices that allow calls or text messages to be routed from landlines to mobile networks. The Secretary of State subsequently issued a conflicting direction to Ofcom, under section 5(2) of the CA, not to make the regulations. This direction stemmed from national security and public safety concerns since COMUGs can conceal a caller's communications data, such as their location and identity.

The claimant telecommunications company sought judicial review of the Secretary of State's direction. Both the High Court and the Court of Appeal held that the Secretary of State acted ultra vires by directing Ofcom to refrain from making an exemption regulation, as "the court will not construe a...