R (on the application of VIP Communications Ltd ((in Liquidation))) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Richards,Lord Reed,Lord Lloyd-Jones,Lord Sales,Lord Stephens |
| Judgment Date | 08 March 2023 |
| Neutral Citation | [2023] UKSC 10 |
| Court | Supreme Court |
[2023] UKSC 10
Lord Reed, President
Lord Lloyd-Jones
Lord Sales
Lord Stephens
Lord Richards
Appellant
Daniel Beard KC
Imogen Proud
Michael Armitage
Will Perry
(Instructed by the Government Legal Department)
Respondent
James Segan KC
(Instructed by Maddox Legal Ltd)
Heard on 4 October 2022
Lord Richards ( with whom Lord Reed, Lord Lloyd-Jones, Lord Sales and Lord Stephens agree):
This appeal raises an issue of statutory construction. Under section 8(4) of the Wireless Telegraphy Act 2006 (“the WTA 2006”), the Office of Communications (“Ofcom”) is under a duty to make regulations exempting the installation and use of wireless telegraphy equipment of any particular description from the requirement for a licence under section 8(1), if satisfied that the conditions in section 8(5) are met as respects the use of that type of equipment. Under section 5(2) of the Communications Act 2003 (“the CA 2003”), Ofcom is under a duty to carry out its functions in accordance with directions given by the Secretary of State on very limited grounds, which include the interests of national security and public safety. The issue is whether Ofcom's duty under section 8(4) of the WTA 2006 is qualified, or overridden as the respondent puts it, by its duty under section 5(2) of the CA 2003.
The Court of Appeal (Underhill, Macur and Flaux LJJ) [2020] EWCA Civ 1564; [2021] 1 WLR 2839, affirmed the decision of Morris J, sitting in the Administrative Court [2019] EWHC 994 (Admin), to quash a direction dated 25 September 2017 given by the Secretary of State under section 5(2) of the CA 2003 (“the Direction”), holding that Ofcom's duty under section 8(4) of the WTA 2006 was not qualified by its duty under section 5(2) and that the Secretary of State therefore had no power to direct Ofcom not to make regulations under section 8(4).
Section 5 of the CA 2003, in the form in force as at the date of the Direction, provided:
“ Directions in respect of networks and spectrum functions
This section applies to the following functions of OFCOM
(a) their functions under Part 2; and
(b) their functions under the enactments relating to the management of the radio spectrum that are not contained in that Part.
(2) It shall be the duty of OFCOM to carry out those functions in accordance with such general or specific directions as may be given to them by the Secretary of State.
(3) The Secretary of State's power to give directions under this section shall be confined to a power to give directions for one or more of the following purposes—
(a) in the interests of national security;
(b) in the interests of relations with the government of a country or territory outside the United Kingdom;
(c) for the purpose of securing compliance with international obligations of the United Kingdom;
(d) in the interests of the safety of the public or of public health.
(4) The Secretary of State is not entitled by virtue of any provision of this section to direct OFCOM to suspend or restrict—
(a) a person's entitlement to provide an electronic communications network or electronic communications service; or
(b) a person's entitlement to make available associated facilities…
(5) The Secretary of State must publish a direction under this section in such manner as appears to him to be appropriate for bringing it to the attention of the persons who, in his opinion, are likely to be affected by it.
(6) The Secretary of State is not required by subsection (5) to publish a direction, and he may exclude matter from a direction he does publish, if he considers the publication of the direction or matter to be –
(a) against the interests of national security; or
(b) against the interests of relations with the government of a country or territory outside the United Kingdom.
(7) Subsection (4) does not affect the Secretary of State's powers under section 133.”
Section 8 of the WTA 2006, in the form in force at the date of the Direction, provided:
“ Licences and exemptions
(1) It is unlawful—
(a) to establish or use a wireless telegraphy station, or
(b) to instal or use wireless telegraphy apparatus,
except under and in accordance with a licence (a “wireless telegraphy licence”) granted under this section by OFCOM.
(2) Subsection (1) does not apply to—
(a) the use of a television receiver (within the meaning of Part 4 of the Communications Act 2003) for receiving a television programme; or
(b) the installation of a television receiver for use solely for that purpose.
(3) OFCOM may by regulations exempt from subsection (1) the establishment, installation or use of wireless telegraphy stations or wireless telegraphy apparatus of such classes or descriptions as may be specified in the regulations, either absolutely or subject to such terms, provisions and limitations as may be so specified.
(3A) OFCOM may not make regulations under subsection (3) specifying terms, provisions or limitations in relation to the establishment, installation or use of wireless telegraphy stations or wireless telegraphy apparatus for the provision of an electronic communications network or electronic communications service unless the terms, provisions or limitations are of a kind falling within Part A of the Annex to Directive 2002/20/EC of the European Parliament and of the Council.
(3B) Terms, provisions and limitations specified in regulations under subsection (3) must be—
(a) objectively justifiable in relation to the wireless telegraphy stations or wireless telegraphy apparatus to which they relate,
(b) not such as to discriminate unduly against particular persons or against a particular description of persons,
(c) proportionate to what they are intended to achieve, and
(d) in relation to what they are intended to achieve, transparent.
(4) If OFCOM are satisfied that the conditions in subsection (5) are satisfied as respects the use of stations or apparatus of a particular description, they must make regulations under subsection (3) exempting the establishment, installation and use of a station or apparatus of that description from subsection (1).
(5) The conditions are that the use of stations or apparatus of that description is not likely to –
(a) involve undue interference with wireless telegraphy;
(b) have an adverse effect on technical quality of service;
(c) lead to inefficient use of the part of the electromagnetic spectrum available for wireless telegraphy;
(d) endanger safety of life;
(e) prejudice the promotion of social, regional or territorial cohesion; or
(f) prejudice the promotion of cultural and linguistic diversity and media pluralism.”
The type of equipment relevant to the appeal is known as commercial multi-user Global Systems for Mobile Communications (“GSM”) gateway apparatus (“COMUG”). GSM gateways are telecommunications equipment containing one or more SIM cards, as used in mobile phones. They enable phone calls and text messages from landlines to be routed directly on to mobile networks, taking advantage of lower mobile call charges. They have been widely used by businesses and public bodies to reduce their telephone bills. A commercial operator may use a GSM gateway to provide services to a single end-user, so that all the calls diverted through the gateway come from one user, which is called a commercial single-user GSM gateway (“COSUG”). Alternatively, a commercial operator may use a COMUG to provide a similar service to multiple end-users, so that the calls diverted through the gateway come from more than one end-user.
The use of COMUGs gave rise to national security and public safety concerns which led the Secretary of State to give the Direction to Ofcom under section 5(2) of the CA 2003 which is the subject of these proceedings. When a call is made from a landline or a mobile phone, information identifying the calling party is transmitted over the network, as is information as to the user's location in the case of a mobile phone. However, when a call is routed through a GSM gateway, this information is not conveyed to the network. Instead, the only data is the number and location of the SIM card in the GSM gateway, which masks communications data about the call and the caller.
Until 2016, the use of any GSM gateway equipment was subject to the licensing requirements of section 8(1) of the WTA 2006. This was modified by the Wireless Telegraphy (Exemption) (Amendment) Regulations 2016 (SI 2016/486), which exempted the use of COSUGs from the licensing requirements, but COMUGs remained subject to them. This change followed the decision of Rose J in Recall Support Services Ltd v Secretary of State for Culture, Media and Sport [2013] EWHC 3091 (Ch), [2014] 2 CMLR 2 (“ Recall HC”), affirmed by the Court of Appeal ( [2014] EWCA Civ 1370, [2015] 1 CMLR 38) (“ Recall CA”), that under EU law (and under domestic law as it then stood) it was permissible to require individual licensing on public security grounds, and that on the evidence before the court this requirement was justified for COMUGs, but not for COSUGs.
Following a public consultation, Ofcom published in July 2017 a notice stating its intention to make regulations under section 8 exempting COMUGs from the licensing requirements of section 8(1). It was satisfied that the conditions provided by section 8(5) were met. Those conditions do not include national security or the three other matters which, under section 5 of the CA 2003, entitle the Secretary of State to give a direction to Ofcom as to the performance of its functions.
In response to this notice, the Secretary of State (acting by the Minister of State for Security) issued the Direction under section 5(2) of the CA 2003 challenged in...
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