March 13, 2023
Under s 8(4) of the Wireless Telegraphy Act 2006, Ofcom is under a duty to make regulations exempting the installation and use of certain wireless telegraphy equipment from the requirement for a licence under s 8(1) of the same Act, if satisfied that the conditions in s 8(5) are met as regards the use of that type of equipment.
Under s 5(2) of the Communications Act 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.
In July 2017, following consultation, Ofcom published a notice stating its intention to make regulations under s 8 of the 2006 Act exempting Commercial Multi-User GSMs (Global Systems for Mobile Communications) gateway apparatus (COMUGs) from the licensing requirements of s 8(1). 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 chargers. When a call is routed through a GSM gateway, the only data transmitted over the network is the number and location of the SIM card in the GSM gateway. It does not transmit information such as the identity of the calling party and (in the case of a mobile phone) the user’s location, as would ordinarily be the case without a GSM gateway.
In response, the Secretary of State for the Home Department issued a Direction that COMUGs should not be exempted by Ofcom. The Direction, challenged in these proceedings, was given on the basis of serious national security and public safety concerns.
The High Court held that the Secretary of State had no power under s 5 to direct Ofcom not to comply with its duty under s 8(4) of the 2006 Act to make regulations (exemption regulations) if Ofcom was satisfied that the conditions in s 8(5) were met. The Direction was therefore found to be ultra vires. The Court of Appeal agreed, dismissing the appeal. The Secretary of State appealed to the Supreme Court.
Lord Richards, with whom the other Justices agreed, noted that under the legislation governing the installation and use of wireless telegraphy in force between 1904 and 2003 the Government had sole responsibility. Most of the Government’s functions and powers under the legislation were transferred to Ofcom by the 2003 Act, implementing the EU Directives known as the Common Regulatory Framework.
Having been presented with this complex legislation scheme, Lord Richards found that it was obvious that the use of wireless telegraphy could give rise to national security concerns. National security, along with the other matters listed in s 5(3) of the 2003 Act, are core functions of the Government, for which it is democratically accountable, he said. A regulator, like Ofcom, is in no sense equipped to have responsibility for such matters.
In Lord Richards’ view, it was beyond argument that Parliament’s purpose in enacting s 5 was that, notwithstanding the extensive changes made to the regime for the control of wireless telegraphy, the Government should continue to be responsible for national security and the other matters listed in s 5(3) of the 2003 Act. This continued division of responsibility was consistent with the Common Regulatory Framework.
Lord Richards found that provisions such as s 5 of the 2003 Act and s 8 of the 2006 Act are to be construed as if contained within a single statute, given that they are dealing with a single system of regulation concerning wireless telegraphy. In circumstances where the legislation has carefully divided responsibility between the Government and the regulator, reserving to the former powers only in respect of matters of vital national interest that are peculiarly within the competence of the Government, Lord Richards noted that it would be very surprising if those powers did not apply so as to prevent the making of an exemption regulation where, in the reasonable and proportionate judgment of the Government, the regulation would prejudice those interests.
This was reflected in the language of s 5(2) of the 2003 Act. The drafter was not directing the language at any particular function, but was choosing words which could cover the whole field of those functions. Ofcom is as much carrying out one of its functions when, following a direction by the Secretary of State, it does not make exemption regulations as when it does make exemption regulations under s 8 of the 2006 Act.
Lord Richards did not accept the existence, relied upon by the Court of Appeal, of a general principle of statutory construction that a statutory power to give a direction does not extend to a direction not to comply with a statutory duty arising under that or another statute, in the absence of clear words to that effect. It will be relevant to the assessment of rival interpretations of a provision that, on one view, it would permit a direction to be given that has the effect of precluding the performance of what would otherwise be a statutory duty, but that is no more than one of the factors which will need to be considered in arriving at the proper construction of the provision.
Accordingly, the appeal was allowed. (R v Secretary of State for the Home Department  UKSC 10 (8 March 2023) — to read the judgment in full, click here).