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The High Court has quashed a direction given by the Home Secretary to Ofcom which sought to limit, on national security grounds, the use of telecoms devices known as “GSM Gateways”.

On 6 July 2017, Ofcom published a notice of its intention to liberalise the use of “multi-user” GSM Gateways, known as “COMUGs”.  Ofcom was under a statutory duty to do so by reason of s.8(4) of the Wireless Telegraphy Act 2006, as a result of its conclusions reached in a detailed review.  On 25 September 2017, however, the Minister of State for Security made a direction on behalf of the Home Secretary instructing Ofcom not to comply with its statutory duty, because of concerns about the national security implications of COMUGs.  The High Court held, on a judicial review challenge, that the power under which the Minister of State for Security claimed to be acting in issuing the direction, in s.5(2) of the Communications Act 2003, did not extend to directing Ofcom not to comply with a statutory duty.  Mr Justice Morris considered and summarised the principles applicable to statutory construction in this area (see [50]) and concluded that “clear words are required to give a power, by way of secondary legislation, to override a statutory duty imposed by other primary legislation” (see [54]), of which there were none (see [61]).

 James Segan acted as sole counsel for the Claimant.

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