The Queen (on the application of Vip Communications Ltd ((in Liquidation))) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morris |
| Judgment Date | 17 April 2019 |
| Neutral Citation | [2019] EWHC 994 (Admin) |
| Docket Number | Case No: CO/115/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 April 2019 |
and
[2019] EWHC 994 (Admin)
Mr Justice Morris
Case No: CO/115/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
James Segan (instructed by Jury O'Shea LLP, Solicitors) for the Claimant
Daniel Beard QC, Michael Armitage and Imogen Proud (instructed by Government Legal Department) for the Defendant
The Interested Party did not appear
Hearing dates: 13 November 2018 and 1 February 2019
Approved Judgment
(1) Introduction
This is an application by VIP Communications Limited (in liquidation) (“the Claimant”) for judicial review of a direction made by the Secretary of State for the Home Department (“the Secretary of State”) to the Office of Communications (“Ofcom”) under section 5(2) Communications Act 2003 (“CA 2003”).
The application raises a point of construction of s.5(2) CA 2003, namely whether that subsection confers upon the Secretary of State the power to make a direction which overrides a statutory duty imposed upon Ofcom by other primary legislation; in this case, the duty upon Ofcom to make exemption regulations imposed by section 8(4) Wireless Telegraphy Act 2006 (“WTA 2006”).
This point of construction was considered in earlier proceedings, Recall Support Services Ltd v Secretary of State for Culture, Media and Sport and was the subject of differing views expressed at first instance by Rose J [2013] EWHC 3091 (Ch) [2014] 2 CMLR 2 (“ Recall HC”) and then, on appeal, by Richards LJ [2014] EWCA Civ 1370 [2015] 1 CMLR 38 (“ Recall CA”).
On 6 July 2017 Ofcom issued a notice (“the COMUG Notice”) stating its intention to make regulations under s.8(4) WTA 2006 exempting commercial multi-user gateway GSM apparatus (“COMUGs”) from the individual licensing requirement in s.8(1) WTA 2006.
On 25 September 2017 the Minister of State for Security (“the Minister”) gave a direction to Ofcom (“the Direction”) under s.5(2) CA 2003 not to make such regulations. The Direction was given on the basis of serious national security and public safety concerns. Those concerns are not disputed by the Claimant.
The Claimant contends that the Direction was ultra vires the Secretary of State's powers to make a direction under s.5(2) and that the Direction is therefore unlawful and should be quashed. It contends, in summary, that s.5(2) CA 2003 does not confer any power upon the Minister to direct Ofcom not to comply with its duty under s.8(4) WTA 2006. If a statute is to confer upon a member of the Executive the power to override a duty in other primary legislation, then clear and specific words are required. Section 5 contains no such clear and specific words. That conclusion is supported by specific observations made by Richards LJ in Recall CA.
The Defendant contends in summary that, whilst s.8(4) WTA 2006 places a duty on Ofcom to introduce regulations, that is not the only relevant duty which Ofcom is under. It is also under a duty to act in accordance with directions given by the Secretary of State pursuant to s.5 CA 2003 on grounds such as national security and public safety. As a matter of pure construction of the power under s.5 CA 2003, the Direction was clearly not ultra vires. The Secretary of State's interpretation of the power was expressly approved by Rose J in Recall HC and this Court ought to follow that decision.
(2) The legislative provisions in issue
The legislative and regulatory framework is set out in detail in paragraphs 17 to 24 below. The two legislative provisions directly in issue are s.8(4) WTA 2006 and s.5(2) CA 2003.
Section 8 WTA 2006, in its amended form at the relevant time, provides as follows:
“(1) It is unlawful–
(a) to establish or use a wireless telegraphy station, or
(b) to install or use wireless telegraphy apparatus, except under and in accordance with a licence (a “wireless telegraphy licence”) granted under this section by OFCOM.
…
(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.
…
(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.”
( emphasis added)
The legislative history leading to s.8 WTA in its present form is set out in paragraphs 18, 21, 23 and 24 below.
Section 5 CA 2003 provides as follows:
“Directions in respect of networks and spectrum functions
(1) This section applies to the following functions of OFCOM—
(a) their functions under Part 2;
(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.
(3A) The Secretary of State may not give a direction under
this section in respect of a function that Article 3(3a) of the Framework Directive requires OFCOM to exercise without seeking or taking instructions from any other body.
(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.
(4A) Before giving a direction under this section, the Secretary of State must take due account of the desirability of not favouring—
(a) one form of electronic communications network, electronic communications service or associated facility, or
(b) one means of providing or making available such a network, service or facility, over another…
…
(7) Subsection (4) does not affect the Secretary of State's powers under section 132”
(emphasis added)
Under s.405 CA 2003, as amended by Schedule 7 paragraph 34(2)(a) and (b) of the WTA 2006 itself, “ the enactments relating to the management of the radio spectrum” referred to in s.5(1)(b) “ means (a) the Wireless Telegraphy Act 2006; and (g) the provisions of this Act so far as relating to that Act”. No “ enactments” other than the WTA 2006 are mentioned in this definition and the definition does not distinguish between particular provisions of the WTA 2006.
(3) The factual background
GSM gateways
The Direction relates to telecommunications equipment known as a “GSM gateway”. GSM gateways contain one or more of the same SIM cards as are placed into mobile telephones. They enable telephone calls and text messages from a landline to be routed directly on to mobile networks, with the invention of saving money on call charges. These devices are used by a wide range of businesses and public bodies, with the aim of reducing their telephone bills. Commercial deployment of a GSM gateway may be as a “commercial single user gateway” (“COSUG”) or as a “commercial multi-user gateway” (COMUG). COSUGs are gateways which serve a single end-user. That single end-user may be an entire company or a large entity. By contrast, COMUGs involve the use of a GSM gateway to provide an electronic communication service by way of a business to multiple end-users. A COMUG is a device that multiple users can connect to, and their calls to networks, other than that on which their phone operates, will all be converted such that they appear to be on network calls with other network operators. Further background in relation to GSM gateways is conveniently set out at paragraphs 4 to 9 in the judgment of Rose J in Recall HC.
National security issues
There are national security and public safety concerns surrounding the use of COMUGs. When a caller dials a number from a fixed line or a mobile phone, information identifying the number of the calling party is transmitted over the network, and in the case of a mobile phone, information as to the user's location is also transmitted. This is referred to as “caller line/location information” or “CLI”. Such communications data has considerable utility for national security and public safety purposes as well as law enforcement purposes more generally. However where a call is routed through a GSM gateway, communications data concerning the caller is not conveyed to...
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