VIP Communications Ltd (In Liquidation), Regina (on The Application of) v The Secretary of State for The Home Department: CA 20 Nov 2020

Exemption Direction was Ultra Vires

The Direction sought to prevent Ofcom from introducing regulations which would have the effect of making it lawful to operate a species of GSM gateway known as a commercial multi-user gateway without a licence. GSM gateways are telecommunications equipment which contain one or more SIM cards such as are placed in mobile phones. They enable phone calls and text messages from landlines to be routed directly on to mobile networks with the intention of saving money on call charges. Commercial deployment of a GSM gateway may be as a commercial single user gateway or as a COMUG. COSUGs are gateways serving a single end-user, such as a large commercial entity. In contrast, COMUGs involve the use of a GSM gateway to provide an electronic communications service to multiple end users.
The Direction was given because of national security and public safety concerns about the use of COMUGs.
Held: The Secretary of State’s appeal failed. The Act did not contain a power for the appellant to do that which was sought, and it would be wrong to seek to construct one through a strained reading of the 2006 Act. The appellant did have power under the 2003 Act 5(2) to include directions with regard to national Security as part of any exemption it allowed.
The direction actually given however went beyond these powers, and was ultra vires.

Underhill, Macur, Flaux LJJ
[2020] EWCA Civ 1564, [2020] WLR(D) 626
Bailii, WLRD, Judiciary
Communications Act 2003 5, Wireless Telegraphy Act 2006 8
England and Wales
Citing:
At AdmnVIP Communications Ltd, Regina (on The Application of) v Secretary of State for The Home Department Admn 17-Apr-2019
Order outwith Home Secretary’s powers
The claimant sought judicial review of an order requiring OFWAT to limit certain licenses to exclude technology which the SSHD said would pose a threat to National Security. It said that no power to do this existed.
Held: Review allowed. The . .

Lists of cited by and citing cases may be incomplete.

Utilities, Administrative

Updated: 31 October 2021; Ref: scu.656229