Supreme Court: use of telecoms equipment can be blocked to protect national security

08 Mar 2023

The Supreme Court today handed down judgment in R (VIP Communications Ltd) v Secretary of State for the Home Department, allowing the Secretary of State’s appeal and dismissing VIP’s application for judicial review.

The appeal concerned the Secretary of State’s powers to protect national security as well as public safety and other important interests in the telecoms context. The telecoms kit at issue in the case were Commercial Multi-User Gateways (or ‘COMUGS’) which allow callers to route landline calls onto a mobile network. COMUGs pose national security risks because, when a call is routed through COMUG, communications data about the call and the caller is masked.

The Supreme Court concluded that the Secretary of State had the power to prevent Ofcom from exempting COMUGs form any prior licensing requirement. The Court of Appeal and High Court had said that the Secretary of State lacked the power to give a direction to Ofcom on national security or public safety grounds preventing exemption from licensing requirements.

In reaching this conclusion, the Supreme Court dismissed the Court of Appeal’s reliance on the ‘clear words’ principle of statutory construction – that statutory duties can only be overridden or qualified using clear words – and concluded that, outside fundamental rights or rule of law cases, no such general principle exists.

Daniel Beard KC, Michael Armitage, Imogen Proud and Will Perry acted for the Secretary of State.