R (Government of Bermuda) v Office of Communications
| Jurisdiction | England & Wales |
| Judge | Mr Justice Goldring: |
| Judgment Date | 13 August 2008 |
| Neutral Citation | [2008] EWHC 2009 (Admin) |
| Docket Number | Case No: CO/5573/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 August 2008 |
[2008] EWHC 2009 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
The Hon. Mr Justice Goldring
Case No: CO/5573/2008
Richard Gordon QC and Victoria Wakefield (instructed by Olswang Solicitors) for the Claimant
Christopher Vajda QC and Tim Ward (instructed by Herbert Smith Solicitors) for the Defendant
Robert Englehart QC and Charles Potter (instructed by Allen & Overy Solicitors) for the Interested Parties
Hearing dates: 6 August 2008
Introduction
This is a challenge to the decision of 7 May 2008 of the Office of Communications (“Ofcom”) to submit to the International Telecommunications Union (“the ITU”) the amended characteristics for a new frequency assignment in the broadcast-satellite service network for the Isle of Man (the first interested party), which has as its consultant Mansat (the second interested party). Bennett J ordered that there should be “a rolled-up hearing” of the claimant's application for permission and the substantive merits of the claim. Although some of the (many) points taken by Mr. Gordon QC on behalf of Bermuda are in my view unarguable, I give permission.
In spite of the amount of evidence which has been filed, the issue can be shortly stated. Ofcom is the administrative body which represents both Bermuda and the Isle of Man before the ITU. On 25 June 2002 Ofcom's predecessor, the Radiocommunications Agency, submitted to the Bureau at the ITU (“ITU-BR”) the Isle of Man's initial proposal to modify the Region 2 satellite network (“the IOMBSS-1 proposal”). Region 2 covers the Americas. One of the satellite network areas with which IOMBSS-1 would excessively interfere was that which covers Bermuda (“BERBERMU”). Mansat modified IOMBSS-1 (“Amended IOMBSS-1”). By using the same computer software (“MSPACEg”) as is used by the ITU when it assesses whether a proposal gives rise to excessive interference to a particular network, Mansat established to its satisfaction that Amended IOMBSS-1 no longer affected BERBERMU. Ofcom agreed. Bermuda agreed that by application of MSPACEg, Amended IOMBSS-1 did not give rise to excessive interference with BERBERMU. Bermuda's case, however, is that MSPACEg is not, due to Bermuda's very small land mass, a satisfactory means of assessing interference. On 7 May 2008, in the light of the MSPACEg results, Ofcom indicated its intention to file Amended IOMBSS-1 with the ITU. It has maintained that intention. Bermuda's case is that to persist in such a filing would amount to a complete abdication of Ofcom's responsibilities to represent Bermuda's interests before the ITU. Ofcom should convey Bermuda's concerns on its behalf to the ITU. It should not act in such a way as will permit Amended IOMBSS-1 to be introduced.
Although not directly relevant to the legal issues, it is part of the overall background that if Amended IOMBSS-1 is not brought into use within the strict time limits set by the ITU, Bermuda is next in line in respect of its own similar proposed network. Although not alleging bad faith on Bermuda's part, the Isle of Man makes the point that if the already substantial delay caused by this dispute is further prolonged, time will run out for Amended IOMBSS-1. That would leave Bermuda's proposed network as the modification for Region 2.
The essential issue in the case
Although Mr. Gordon QC on behalf of Bermuda has sought to attack Ofcom's decision on a number of bases, it seems to me for reasons which will become apparent, there is only one real point in this case: whether under section 22 of the Communications Act 2003 (“CA”) Ofcom has the power to act as it proposes to.
The domestic framework
Section 1 of the CA 2003 provides:
“Functions and general powers of OFCOM
(1) …[Ofcom] shall have the following functions-
(a) the functions transferred to OFCOM under section 2; and
(b) such other functions as may be conferred on OFCOM by or under any enactment (including this Act)…
(3) OFCOM may do anything which appears to them to be incidental or conducive to the carrying out of their functions, including borrow money…”
Section 3 sets out Ofcom's general duties. It is essentially concerned with domestic regulatory matters.
Section 22 of the CA provides:
“Representation on international and other bodies
(1) It shall be the duty of OFCOM to do, as respects the United Kingdom, such of the following things as they are required to do by the Secretary of State—
(a) provide representation on behalf of Her Majesty's Government in the United Kingdom on international and other bodies having communications functions…
(2) OFCOM shall also have the power, if requested to do so by the Secretary of State, to do one or more of those things as respects any of the Channel Islands, the Isle of Man or a British overseas territory.
(3) It shall be the duty of OFCOM to carry out their functions under this section in accordance with such general or specific directions as may be given to them by the Secretary of State.
(4) The Secretary of State—
(a) is not entitled to direct OFCOM to comply with a request made under subsection (2); but
(b) may give directions about how OFCOM are to carry out any representative role that they undertake in accordance with such a request.
(5) In this section—
“communications functions” means…
(c) any other function which relates to, or is connected with, a matter in respect of which OFCOM have functions…
(6) In relation to—
(a) a part of the British Islands outside the United Kingdom, or
(b) a British overseas territory,
the references in subsection (5) to matters in respect of which OFCOM have functions include references to matters corresponding, in the case of that part of those Islands or of that territory, to matters in respect of which OFCOM's functions are confined to the United Kingdom…
The ITU has an international communications function. Bermuda is a British Overseas Territory. By exchange of letters on 31 January 2005 and 1 March 2005 the Secretary of State requested and Ofcom agreed that it would represent the Isle of Man and British Overseas Territories.
In short therefore, Ofcom has the duty to provide representation on behalf of both Bermuda and the Isle of Man before the ITU. It is the only administration which can represent them before the ITU.
The Memorandum of Understanding
There is a Memorandum of Understanding (“MoU”) between the Secretary of State and Ofcom. It is agreed not to have legal force. It provides, among other things, that:
“1. Representation for the…Isle of Man, and British Overseas Territories [Bermuda] in the ITU
1.1 This [MoU] sets out the arrangements for Ofcom's representation, as appropriate, of…the Isle of Man and [Bermuda] in the ITU.
1.2 Ofcom will represent the Channel Islands, the Isle of Man and… [Bermuda] in the ITU.
1.3 Ofcom shall, in relation to representing…the Isle of Man or…[Bermuda];
(a) Attend meetings of the ITU;
(b) Make decisions or agree or disagree with any proposed decisions of the ITU;
(c) Provide any undertakings or assurances to the ITU or to third parties;
(d) Sign agreements on behalf of any of the Channel Islands, the Isle of Man or a British Overseas Territory;
(e) Do any other thing which is incidental to or necessary for the representation of any of the Channel Islands, the Isle of Man or…[Bermuda] in the ITU.”
In short therefore, the understanding between Ofcom and the Secretary of State is that Ofcom is obliged to do anything which is incidental or necessary for the representation of the Isle of Man and Bermuda in the ITU. That reflects the wording of section 1(3) of the CA.
The explanatory note
There is an “Explanatory Note Supplementing the [MoU]…between the Secretary of State…and [Ofcom]…relating to representation of the…Isle of Man and…[Bermuda] and the…[ITU].” Again, it is agreed not to have legal force.
In the introduction it is said:
“In effect, HMG has designated Ofcom to act as the “United Kingdom Administration” to the ITU, which in accordance with the ITU Constitution and Convention, means that Ofcom has the responsibility of representing the United Kingdom Member State (and all its Territories to which the ITU Convention applies). The MoUs do not give Ofcom any legal authority…[They] are not legally binding instruments.”
Section 1 sets out “Ofcom's role and responsibilities in representation for the Crown Dependencies and the British Overseas Territories in respect of the ITU.” It provides:
“It is important to underline that, in fulfilling its role when representing HMG, Ofcom is working for HMG and takes instructions accordingly. In its capacity as a “National” Regulator, Ofcom was designed to be independent from Government, but the Communications Act 2003 created an exception for some of Ofcom's international roles. It follows that Ofcom liaises very closely with HMG when preparing for ITU and related meetings and as necessary during meetings, and there should be no distinction in this regard between Government representatives in the UK or in the OTs or CDs. In other words, Ofcom would expect to liaise closely with appropriate authorities in the OTs and CDs in preparation for ITU meetings where the OTs and CDs have specific interests. While Ofcom can be directed under section 22(3) of the Communications Act to do certain things as HMG sees fit, in most cases Ofcom will simply adhere to the wishes of HMG and represent those wishes accordingly. In a limited...
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