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

• Author: Mr Andrew Lidbetter, Nusrat Zar and Jasveer Randhawa
• Law Firm: Herbert Smith Freehills
• 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...