In R (VIP Communications Ltd) v SSHD (2019) EWHC 994 (Admin) Morris J allowed an application for judicial review and held that a Direction made by the SoS, under a regulatory framework put in place following the implementation of EU Directives, was ultra vires his statutory powers, and therefore unlawful. Morris J, at paragraph 50, stated the principles of statutory interpretation, as follows:-
(1) Subordinate legislation is invalid if it has an effect or is made for a purpose outside the scope of the statutory power pursuant to which it was made i.e ultra vires;
(2) In considering whether subordinate legislation is ultra vires the Court must determine the scope of the power conferred by statute to make that subordinate legislation;
(3) The interpretation of any statutory provision conferring a power to make secondary legislation is to be effected in accordance with normal principles of construction;
(4) In determining the extent of the scope of the power conferred on the executive by primary legislation, the Court must consider not only the text of that provision, but also the constitutional principles which underlie the text and the principles of statutory interpretation which give effect to those principle;
(5) One such principle is the rule that, specific statutory rights are not to be cut down by subordinate legislation passed under the vires of a different act in the absence of clear words;
(6) In the light of the following principles, this principle must give way in the face of clear words;
(7) If the legislature intends to confer a power (a) to amend the enabling Act or other legislation (i.e. Henry VIII powers) or (b) to interfere with fundamental rights, it will usually do so expressly.
(8) In the absence of express provision, a Court may be reluctant to find that the legislature intended to confer such powers;
(9) In the case of fundamental rights, these cannot be overridden by general or ambiguous words.
(10) In the absence of express language or necessary implication to the contrary, the Court presumes that even the most general words were intended to be subject to the basic rights of an individual;
(11) The more general the words, the harder it is likely to be to rebut the presumption;
(12) A similar principle applies in the case of a so-called Henry VIII power, i.e. a delegated power under which subordinate legislation is enabled to amend primary legislation;
(13) The Court will scrutinise with care a statutory instrument made under such a Henry VIII power;
(14) In such a case, if the words used to delegate a power are general, the more likely it is that an exercise within the literal meaning will be outside the legislature’s contemplation;
(15) The Court can take into account the fact that delegation to the executive of a power to modify primary legislation is an exceptional course and if there is any doubt about the scope of the power conferred upon the executive, it should be resolved by a restrictive approach; and
(16) In the case of a power by way of subordinate legislation to modify or to override the effect of primary legislation, the Courts may be inclined to adopt a similar approach to that adopted in the case of a Henry VIII power properly so-called.
Morris J concluded, at paragraph 61, that, as a matter of pure construction of the statutory words, in their context, a directive by the SoS “not to carry out a duty” could not be a direction “as to” or “in relation to” the carrying out of that duty, and thus could not be a direction to the subordinate body to carry out “functions” within the SoS’s direction making statutory power.
Moreover, Morris J said, at paragraphs 66/67 that whilst the SoS (in the main) retained responsibility for matters of national security and other matters, such as public safety and public health, that consideration does not conclusively point towards the SoS’s construction of the statutory power. There are other mechanisms open to the SoS to exercise his powers to safeguard national security and other public interests.
Further, Morris J stated, at paragraphs 81-85 inclusive, that the Claimant’s construction was not an absurd construction and did not give rise to a lacuna.