VIP Communications Ltd (In Liquidation), R. (on the application of) v Secretary of State for the Home Department [2023] UKSC 10 (08 March 2023)
Citation:VIP Communications Ltd (In Liquidation), R. (on the application of) v Secretary of State for the Home Department [2023] UKSC 10 (08 March 2023)
Rule of thumb:If the Government sees what it perceives as criminal activity going on in society, such as with people using VPN’s and then going on the internet largely untraceably, can a member of the Cabinet, such as the Home Secretary, introduce a direct to Ofcom for Regulations to be introduced to ban this and justify this on the grounds of ‘national security’ across the UK? Yes, people being able to communicate & operate completely anonymously & untraceably on the internet, effectively on dark webs, poses such a massive threat to security in the UK that this does not overstep the remit given in relation to this under statute.
Background facts:The basic facts were that some telecommunications companies allowed people to operate VPN’s – commercial multi-user gateways (COMUGS), also called onion rings, where it is not one whether a communication was from 1 of thousands of IP addresses, virtual private networks (VPN’S) - one of the companies who offered COMUG’s/VPN’s was a VIP Communications Ltd, who offered people an anonymous internet service & profited from it. This service offered by companies like VIP basically meant that a person’s IP address & details were disguised when went onto a website – this effectively legalised ‘dark webs’ on the internet in the UK. The Telecommunications Regulator has the power to introduced Regulations upon telecommunications companies if they feel that certain online practices are dangerous and they want the telecommunications companies to stop facilitating this dangerous practice. The central Government & the Police were wanting these anonymous online practices offered by companies like VIP outlawed & banned, to try to put an end to ‘dark webs’ on the internet in the UK, and put pressure on the telecommunications regulator to introduce Regulations to ban it. The Telecommunications Regulator refused to do so to try to preserve online anonymity for those who want it. The Home Office therefore introduced an order/direction for Ofcom to introduce Regulations to ban VPN’s/COMUG’s, and thereby out-law anonymous internet operating services like that being offered by VIP, and when questioned over how they had a mandate to introduce these Regulations the Home Office stated that they were doing so for ‘national security’ reasons.
Parties argued:VIP sought a Judicial Review of the Home Office introducing these Regulations, and argued that this was an unlawful introduction of Regulations by the Home Office when the Home Office was given no mandate to do this by Parliament. The Home Office argued that anonymous internet postings meant that dark webs on the internet in the UK were effectively legalised thereby meaning criminals could communicate with each other online much more easily, and it was far easier for them to do this undetected, and this could be abused to such an extreme degree once users/criminals became completely efficient & knowledgeable about it that it was a ‘national security’ matter to jeopardise safety across the UK. VIP argued that in order for ‘national security’ to be invoked there actually has to be an imminent & real risk of danger presented – they argued that there was not an actual case or cases, rather this was an over-extension of the border of the ‘national security’ principle.
Court held:The Court upheld the arguments of the Home Office and declared that the order/direction for Ofcom to introduce Regulations banning as far as they could complete internet anonymity and dark webs in the UK. The Court affirmed that the Home Office’s arguments regarding this were not irrational and they paid deference to the additional security expertise which they possessed. The Court has affirmed that efforts to ensure that no one in the UK is anonymous on the internet in the UK on COMUG’s/VPN’s do fall within the scope of the national security principle.
Ratio-decidendi:
‘In the circumstances, it is not necessary to dwell on VIP’s submission that the security concerns of the Secretary of State could be met by attaching conditions to an exemption regulation. I would, however, make three short observations. First, there is a clear difference between, on the one hand, requiring an applicant for a licence to demonstrate compliance with conditions before a licence is issued and, on the other hand, ascertaining only after the event that a person has not complied with a condition attached to a general exemption regulation. Second, even if the security concerns could be met by conditions in the case of COMUGs, it does not follow that they could be similarly met in the case of other equipment. Third, it is not the function of this court, or of the courts below, to make a judgment on these questions. VIP’s application was concerned solely with whether the Secretary of State’s direction was ultra vires. It accepted that the Secretary of State had serious concerns on national and public security grounds and it did not seek to argue that the Direction was irrational because it precluded the making of an exemption regulation, rather than simply requiring conditions to be attached to an exemption regulation. There was therefore no evidence adduced by any party going to any such point. As regards the court’s role in such circumstances, see R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7, [2021] AC 765, paras 108-109 and 134’, Lord Richards at 72.
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.