GSM gateways: Parliament obviously cocked up, so let minister issue 'ignore the law' decree, UK.gov barrister urges court
- Reference: 1603189935
- News link: https://www.theregister.co.uk/2020/10/20/gsm_gateway_case_court_appeal/
- Source link:
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.
Yeah, you're not having a GSM gateway, Ofcom tells hopeful operators [2]READ MORE
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 [3]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 [4]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 [5]read in this previous Register article . ®
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[1] https://www.theregister.com/2019/05/13/home_office_appeal_gsm_gateway_judgment/
[2] https://www.theregister.com/2019/05/28/gsm_gateway_ofcom_independence_ukgov/
[3] https://youtu.be/mCaTQeKmk8Y?t=727
[4] https://youtu.be/mCaTQeKmk8Y?t=1179
[5] https://www.theregister.com/2019/05/13/home_office_appeal_gsm_gateway_judgment/
[6] https://whitepapers.theregister.com/
Laws not needed in UK
So the government can now make it up as they go along! Very dangerous precedent here.
Re: Laws not needed in UK
If the government win it would be a dangerous precedent but this is just the legal teams giving their arguments.
The article did not say that a ruling has been made yet.
Re: Laws not needed in UK
I wonder if this is the real reason this is still being pursued.
Obviously the original issue is now almost irrelevant - phones have changed and any criminal well informed enough to bother using a GSM gateway provider will not be using PLMN voice or SMS as an alternative but some secure IP-based tool such as Signal.
So - the obvious question we need answered is why are the government still bothering? I can only imagine it is because they have some other regulations which would be put at risk if this decision is allowed to stand. What are they? Or maybe they want a general licence to make any "national security" regulations they want, without bothering parliament to make a law, in the future?
Re: Laws not needed in UK
So - the obvious question we need answered is why are the government still bothering?
For the same reason as the Home Office cases and IR35 appeals that drag on for years, I imagine. Because they can and they don't want to lose.
Re: why are the government still bothering?
Maybe I didn't read carefully enough, but aren't they defending the original complaint (i.e. appealing a ruling against them)? So perhaps they (at least) do not want to pay compensation?
Sovereignty of Parliament vs. Ministerial decree
Keeping watching the birdies everyone
This is another "look over there" distraction technique on the part of the Government.
The real method this contradiction will be overridden is via the unconstrained powers of ministerial fiat buried in the Internal Markets Bill, which based on my reading is NOT constrained to unilaterally changing the EU Withdrawal Agreement, but can be used to change ANY UK or International legislation with out reference to Parliament.
Im hoping against hope that I've gone totally tinfoil hat on this.....
Re: Keeping watching the birdies everyone
International legislation can't be changed, the effect is the UK doesn't do what it agreed to do and each time it happens the country looks more untrustworthy.
Moody's downgraded the UK partly because of this the other day. You can jump over the FT paywall via [1]this Twitter link .
[1] https://twitter.com/peterkgeoghegan/status/1317481089464676352
Re: Keeping watching the birdies everyone
"Internal Markets Bill, [...] can be used to change ANY UK or International legislation with out reference to Parliament."
Some folk in Scotland are already worried Westminster is going to use that to overrule the Scottish building regulations which, in areas such as fire safety, are more demanding than English regulations. It'll be interesting to see how that pans out.
Was all of this original "legislation" placed before Parliament?
The question asked is highly relevant as scrutiny and debate, before both houses, is a legally required procedure.
Re: Was all of this original "legislation" placed before Parliament?
The question asked is highly relevant as scrutiny and debate, before both houses, is a legally required procedure.
Yup. But the bigger question would be if any politician in either house understood it, or all the implications. Which was one of those little snags with the previous Communications Act enacted by the previous Labour government, where a paragraph on lawful interceptions was found to be too broad and overreaching.
But I've come across this a few times with clients. Usually when they've moved into a new building and found mobile not-spots. So then came the question over GSM (or just mobile) gateways. My advice was to point at the Ofcom website which said 'Nope', and the prospect of large fines.. But then also the mobile operators, where Vodafone, O2 etc sold legal devices for just that purpose.. As well as offloading calls onto connections someone else pays for. Those gateways weren't particularly expensive, worked pretty reliably and were legal. I guess.
Issue as I understood it was endpoints (ie phones etc) are lawful under class licence, ie don't require any specific licence to operate, or are licenced under the mobile operator's licence(s). A 'gateway' performs much the same function as a base station, and is/was considered CP (Communications Provider) infrastructure, so needed a relevant communications licence to operate, ie one of the mobile licence holders.
Which is I suspect where a lot of the pressure came from, after all the mobile operators spent a lot of money to win spectrum and operator licences, so wouldn't exactly be happy with gizmos that would allow users to bypass their billing systems.
It's similar to the way we're allowed to use PBXs without needing a communications licence, but if a PBX was available to the public, it would require a licence. Partly so Ofcom could pull licences if LemSIP's home-brew SIP 'Exchange' started bollixing up the public network(s) and partly so it could enforce licence conditions, like good'ol 112/999/911 calls, and lawful intercept provisions.
That's also all part of the fun with telecomms de-regulation, calls to require 'neutral' interconnection, and how easy it is to actually get a communications licence in the UK. At one wholesale operator I worked with, we got the voice engineers to come up with a questionnaire that could be sent to SIP trunk prospects. Aim was to reduce FUN for ops & engineering trying to troubleshoot connections, or figure out why the network's fallen over due to SIP misconfigurations. Marketing didn't like it though as the questionnaire was too difficult for them/sales to understand.
Welcome to the new post-law world.
Here's a thought
If legal text were code, you'd spot merge conflicts earlier.
Re: Here's a thought
Would that make Parliament a type of git-hub?
Re: Here's a thought
The cabinet is already a hub of gets.
Convention?
I thought the convention when two pieces of legislation were in conflict was that the later one overrode the earlier one. As there are several years between the relevant acts, the instructions to Ofcom to obey the law override the ability of ministers to instruct Ofcom to break it. (OK, you can tell I'm no lawyer, M'lud, so any competent authorities on el Reg, please advise).
In any case setting the precedent that a Judge (not in the Supreme Court) can decide that 'Parliament got it wrong and I shall implement what I think Parliament should have meant' is probably contempt of Parliament (again, legal Beagles please correct me if I'm wrong).
Oh well, back to the asylum.
They now have a precedent for breaking the law in a limited and specific way