On 25 September 2017 the Government issued a direction to Ofcom concerning the authorisation of commercial multi-user gateways (COMUGs) used for the purpose of voice calls over a publicly available telephone service or SMS. The direction made under section 5 of the Communications Act 2003, which was made on national security grounds, required that these commercial multi-user gateways could only be authorised by a Wireless Telegraphy Act licence and only in such cases where specific conditions, as outlined in the direction could be met.
In light of the direction, Ofcom did not make the regulations contained in our document “Commercial Multi User Gateway Review Notice of proposed regulations Statement & Notice” (PDF, 1018.1 KB) published on 6 July 2017.
On 8 March 2023, the Supreme Court handed down its judgment on the Government’s appeal against the Court of Appeal’s judgment that had found the Government’s direction of 25 September 2017 to be unlawful. The Supreme Court allowed the Government’s appeal and found the Government had not acted unlawfully in making the direction. The direction therefore remains in force and, in accordance with the direction and Ofcom’s duties under s.5 of the Communications Act 2003, Ofcom will not be making licence exemption regulations under s.8 of the Wireless Telegraphy Act 2006 relating to use of commercial multi-user gateways.
On 15 December 2021, the Supreme Court granted the Government permission to appeal the Court of Appeal’s judgment finding the Government’s direction of 25 September 2017 to be unlawful. The Supreme Court’s permission order maintains the suspension of the High Court order in respect of the Government Direction, pending the determination of the appeal.
In light of this, for the time being Ofcom will not be taking action to issue any licence exemption regulations under s.8 of the Wireless Telegraphy Act 2006. We will be keeping the position under review to ensure that Ofcom continues to act appropriately.
The Government has filed an application for permission to appeal to the Supreme Court against the Court of Appeal’s judgment finding the Government’s direction of 25 September 2017 to be unlawful. The Government has also applied for the High Court order of 13 May 2019 quashing the Direction to remain suspended pending the Supreme Court’s determination of their application for permission to appeal, and, in the event their application for permission is granted, until the Supreme Court’s determination of the appeal.
On 20 November 2020, the Court of Appeal issued a judgment which upheld the earlier judgment of the High Court finding the Government’s direction of 25 September 2017 to be unlawful. We are considering the judgment, before deciding any next steps.
Given the national security concerns that have been identified in relation to the authorisation of COMUGs, we are liaising with the Home Office to understand their position.
We will provide a further update on our next steps as soon as possible.
On 13 May 2019 the High Court issued an order suspending its earlier order which quashed the Government’s direction of 25 September 2017 following its judgment that the direction was unlawful. This suspension is to remain in force pending the expiry of the deadline for the Government to file an application for permission to appeal the High Court’s judgment with the Court of Appeal, and, should such an application be filed, pending the Court of Appeal’s determination of that application (or further order of the Court, if sooner). Therefore, for the time being, Ofcom will not be taking action to issue any licence exemption regulations under s.8 WTA06. We will be keeping the position under review to ensure that Ofcom continues to act appropriately.
On 17 April 2019, the High Court issued a judgment in judicial review proceedings which found the Government’s direction of 25 September 2017 to be unlawful. We understand the Government are presently considering their response to the judgment.
We are currently liaising with the Home Office to understand how they wish to proceed given the national security concerns they have identified in relation to the authorisation of COMUGs. We will provide a further update on our next steps as soon as possible.
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Ofcom
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