Implied Terms in UK Law

Nothing elsewhere in domestic legislation leads, in my judgment, to a different conclusion. I accept Mr Saini's submission that the 2006 Act is the lex specialis in relation to Ofcom's duties as regards the radio spectrum. The limited powers for the Secretary of State to give directions to Ofcom contained in section 5 of the 2003 Act cannot hobble the wide power to give directions under section 5 of the 2006 Act.

Similarly, the obligation in Article 8(1) is on Member States. In this case it was the Secretary of State which determined the basis on which fees were to be set, the UK as the Member State having provided for that possibility in section 5 of the 2006 Act. In other words, Ofcom's discretion was lawfully constrained and it was left with the task of implementing the Secretary of State's policy decision.

Subsequently the use of telecommunications equipment became subject to EU regulation. The current EU regime is the Common Regulatory Framework (“CRF”), introduced in 2002 and which had to be implemented by 24 July 2003. The CRF includes Directive 2002/20/EC of 7 March 2002 of the European Parliament and of the Council on the authorisation of electronic communications networks and services (the “Authorisation Directive”).

Section 5 of WTA 2006 allows the Secretary of State to give directions to Ofcom These include the power to set licence fees which is contained in s.12 (see s.5(4)(b)). It is phrased in terms of requiring Ofcom to exercise its powers so as to implement the package of reforms including directing Ofcom to raise the licence fees.

It did not obviously contemplate or in my view authorise the performance of the Article 8 duty by someone who was not the regulator and who was not carrying out the relevant function to which the duty relates. In the absence of clear words, the s.4(2) duty is to be treated as non-delegable and there is nothing in s.5 of WTA 2006 which in terms allows the Secretary of State to relieve Ofcom of the statutory duties which Parliament has expressly imposed on it.

I do not accept that the principles and objectives of the CRF required Ofcom, in considering whether BT was in breach of Condition H3.1, to take into account the lower charges for the terminating sections of PPCs sold by BT. On the contrary, that would undermine the regulatory regime imposed in 2004 by way of ex-ante regulation.

When parties stipulate in their contract the circumstances that must occur in order to impose a legal obligation on one party to pay, they necessarily exclude any obligation to pay in the absence of those circumstances; both any obligation to pay under the contract and any obligation to pay to avoid an enrichment they have received from the counterparty from being unjust.