How Will The Courts Deal With Conflicting Statutory Duties In Judicial Review Claims?

• Law Firm: Norton Rose Fulbright
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Terrorism, Homeland Security & Defence, Court Procedure
• Author: Charlie Weston-Simons, Andrew Judkins and Beth Greenwood
• Published date: 01 May 2023

One of the most important functions of judicial review claims is to hold public bodies to account and ensure they carry out their statutory duties within the boundaries of their power. InR (VIP Communications Ltd (In Liquidation)) v Secretary of State for the Home Department [2023] UKSC 10 the Supreme Court considered how the courts should approach instances where there appears to be a conflict between the statutory duties of a regulator and the Secretary of State (i.e. central government) in circumstances where the Secretary of State directed the regulator not to exercise its statutory powers. The Supreme Court upheld the Secretary of State's direction and rejected the Court of Appeal's approach to statutory construction which had concluded that the direction was ultra vires.

Background

This case concerns the regulation of telecommunications equipment. Under s.8(4) Wireless Telegraphy Act 2006 (WTA), the Office of Communications (Ofcom) has a duty to make regulations exempting the installation and use of certain wireless telegraphy equipment from the requirement for a licence if satisfied certain conditions are met. However, under s.5(2) Communications Act 2003 (CA 2003), Ofcom is under a duty to carry out its functions in accordance with directions given by the Secretary of State. Pursuant to s.5(3), the Secretary of State's powers to give such directions are confined to limited purposes, which include the interests of national security and public safety.

The Secretary of State identified a national security concern arising in relation to commercial multi-user gateways (COMUGs) which were exempt from licencing requirements. These gateways allow calls and text messages to be routed from landlines to mobile networks, but the gateways conceal a caller's communication data, such as their location and identity. The Secretary of State issued a direction to Ofcom under s.5(2) CA 2003 that COMUGs should not be exempted from the requirement for a licence. The Secretary of State accepted that this direction instructed Ofcom not to comply with its duty under s.8(4) WTA.

The claimant (VIP Communications Ltd) challenged that direction, arguing that it was ultra vires (i.e., outside of the Secretary of State's powers under s.5 CA 2003) and should be quashed. Both the court of first instance and the Court of Appeal upheld the challenge. They found that the Secretary of State had no power under s.5 CA 2003 to direct Ofcom not to carry out its statutory duty under...