An obscure court case about radio spectrum licensing law has jumped to greater prominence after a government barrister suggested a High Court judge “left a lacuna in relation to the protection of national security” when he ruled ministers could not tell Ofcom to ignore the law.
The government had appealed against a ruling last year that ministers cannot order UK comms regulator Ofcom to disregard its own statutory duties. The case hinged on objects called GSM gateways – essentially cost-saving VPNs for mobile phones.
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Spies and police workers insist that GSM gateways are a threat to national security because the identity of someone calling a gateway is not forwarded through the device, making it more difficult for State agencies to eavesdrop on phonecalls. The original High Court case was brought by a (now former) GSM gateway operator, VIP Communications Ltd, whose business was destroyed by a unlawful government ban in the early 2000s.
Explaining the government's case, Matthew Beard QC told the Court of Appeal last week: "It concerns the question, essentially, whether Parliament intended the statutory scheme which exists under the Communications Act 2003 to permit a requirement to hold a licence before you can use such pieces of equipment because of national security concerns."
Lord Justice Underhill commented: "If we take the view that it would be a very strange construction to make [the words of the law] have the meaning you contend for, what we've then got to say is, is the result so nonsensical that we could adopt the same construction?"
Why the conflict?
At its heart the case is about two conflicting pieces of law: section 5 of the Communications Act 2003, which lets government ministers issue legally binding decrees to radio spectrum regulator Ofcom; and section 8(4) of the Wireless Telegraphy Act 2006, which sets out Ofcom's public duties in law. Those duties include a requirement to publish regulations that GSM gateway operators must obey. Back in the mid-2000s the government banned GSM gateways on technical grounds, though it became obvious that the real reason was because they inconvenienced police investigators.
Yet the law didn't allow ministers to issue banning decrees on national security grounds. Beard argued that Parliament had obviously got it wrong when it wrote section 5 and that the Court of Appeal should rule in ministers' favour anyway.
On the flip side, James Segan QC for VIP Communications told the court in written submissions: "There is, however, no discernible reason of logic or legal policy why such an approach should be adopted. The reasons of principle, identified in numerous decisions of the highest authority, why the Courts require clear words where the claimed power is one to modify primary legislation or override fundamental rights, apply equally where the claimed power is one to modify or override a statutory duty arising from primary legislation (a fortiori where the statutory duty is one to modify the general law)."
Segan's written arguments concluded: "If the Secretary of State considers that the current scheme strikes the wrong balance, and that he should now have the broader power he claims in this case, then the correct avenue to do so is to amend the legislation."
A full history of the case can be read in this previous Register article. ®
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