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The Court of Appeal has confirmed that the Home Secretary acted unlawfully by directing Ofcom, on national security grounds, not to exempt “GSM Gateways” from individual licensing requirements.

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 conclusions it had reached after a detailed review.  On 25 September 2017, however, the Minister of State for Security made a direction on behalf of the then Home Secretary, Amber Rudd MP, instructing Ofcom not to comply with its statutory duty, because of concerns about the national security implications of COMUGs.

The Court of Appeal upheld a decision of the High Court 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 permit the Minister to direct Ofcom not to comply with a statutory duty.  Lord Justice Flaux, with whom Lord Justice Underhill and Lady Justice Macur agreed, accepted that “…the Court will not construe a statutory power to give a direction as extending to giving a direction not to comply with statutory duties under that or another statute, in the absence of clear words to that effect” [54]; and reached a “…firm conclusion that there is a complete absence of clear words in either section 5(2) CA 2003 or section 8(4) WTA 2006 which would entitle the Secretary of State to give a direction to Ofcom not to carry out its statutory duty under section 8(4) WTA 2006” [65].

James Segan QC acted as sole counsel for the Claimant.

The full judgment can be found here.

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