back to article GSM gateways: Parliament obviously cocked up, so let minister issue 'ignore the law' decree, UK.gov barrister urges court

An obscure court case about radio spectrum licensing law has jumped to greater prominence after a government barrister suggested a High Court judge “left a lacuna in relation to the protection of national security” when he ruled ministers could not tell Ofcom to ignore the law. The government had appealed against a ruling last …

  1. JetSetJim Silver badge
    Coat

    They now have a precedent for breaking the law in a limited and specific way

    1. NeilPost Silver badge

      ... and I’d take a punt it may have been David Blunkett as Home Secretary.

  2. Anonymous Coward
    Anonymous Coward

    Laws not needed in UK

    So the government can now make it up as they go along! Very dangerous precedent here.

    1. genghis_uk Silver badge

      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.

    2. Graham Cobb Silver badge

      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?

      1. Dan 55 Silver badge

        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.

      2. Anonymous Coward
        Anonymous Coward

        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?

      3. katrinab Silver badge
        Unhappy

        Re: Laws not needed in UK

        Not necessarily. Criminal contacting another criminal, yes. Criminal contacting a victim, like in all the scam and nuisance calls our phone lines are plagued with, no.

    3. TechHeadToo

      Re: Laws not needed in UK

      And it's now well used - bubbles, mixing, travel, non travel, no bubbles..... and eye tests - don't forget the get out jail card excuse...

    4. Kane Silver badge
      Childcatcher

      Re: Laws not needed in UK

      "So the government can now make it up as they go along! Very dangerous precedent here."

      Aye, won't somebody think of all those poor, out of work lawyers?

  3. Paul Smith
    Flame

    Sovereignty of Parliament vs. Ministerial decree

    1. NeilPost Silver badge

      ‘Take back control to parliament’.... not an unaccountable executive.....

  4. Anonymous Coward
    Anonymous Coward

    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.....

    1. Dan 55 Silver badge

      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 this Twitter link.

      1. TheMeerkat Bronze badge

        Re: Keeping watching the birdies everyone

        What is “international legislation”? You are confused.

        Agreement is not “legislation”, it is a contract. There might be penalty clause, but you can always drop a contract.

        1. Dan 55 Silver badge

          Re: Keeping watching the birdies everyone

          My reply is to the AC above, here is the quote:

          but can be used to change ANY UK or International legislation

          You may drop a contract, but if you're a country you'll probably end up having to follow the dispute procedure. Probably why this is such a sticking point for the UK during the Brexit negotiations.

    2. H in The Hague Silver badge

      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.

      1. Anonymous Coward
        Anonymous Coward

        Re: Keeping watching the birdies everyone

        Its a real swiss army knife of a law - for example it could also be used to dismantle the Scottish legal system, the Welsh language legislation, and local planning authorities.

      2. J.G.Harston Silver badge

        Re: Keeping watching the birdies everyone

        But that won't prevent people from continuing to use the higher standards.

        1. Mike 16 Silver badge

          Re: Using higher standards

          If the UK follows the US playbook, you will be allowed to use higher standards, but will not be allowed to use that as a sales point, nor to point out that the lower-priced competitor meets only the lower standards.

          And of course mentioning the issue, even in the course of talking about your own personal opinion, you may get SLAPPed with a "Veggie Libel" equivalent suit. (This launched the career of Dr. Phil, so make your own evaluation)

    3. martinusher Silver badge

      Re: Keeping watching the birdies everyone

      Its worth being a bit paranoid, even if it means you get issued with a tinfoil hat (which don't work, BTW). O A lot of our present woes in the US can be traced to 'passed in haste because of a national emergency' legislation that gave the executive broad powers to do things like impose trade barriers or sanctions without Legislative approval. The enabling legislation was broadly written 'just in case' and nobody figured that anyone would ever trawl around the margins looking for ways to abuse it.

      Its not the first time people have fallen for that trick.

  5. Anonymous Coward
    Anonymous Coward

    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.

    1. Jellied Eel Silver badge

      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.

  6. Doctor Syntax Silver badge

    Welcome to the new post-law world.

  7. Robert Grant Silver badge

    Here's a thought

    If legal text were code, you'd spot merge conflicts earlier.

    1. Dale 3

      Re: Here's a thought

      Would that make Parliament a type of git-hub?

      1. Teiwaz

        Re: Here's a thought

        The cabinet is already a hub of gets.

    2. Anonymous Coward
      Anonymous Coward

      Re: Here's a thought

      Laws tend to already be written in something approaching code, with definitions, pointers, and large if/elif/else blocks. Though the language itself isn't always well defined.

      So I've sometimes wondered if it would be possible to statically analyse legislation to find undefined values, edge cases, and loopholes, before it gets put into law.

      1. Mike 16 Silver badge

        Staic Analysis

        On what basis do you believe that those currently making the law (and a tidy living from bribes) would ever allow any such thing? In the U.S., changes to proposed laws can apparently be made by a "staffer", after debate has closed, and the resulting law passed with no review.

        https://www.salon.com/2000/06/14/love_7/ (Courtney Love does the Math)

  8. Eclectic Man Silver badge

    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.

  9. kirk_augustin@yahoo.com

    Privacy is Paramount

    The right to privacy supersedes any mere desire by government to make law enforcement easier for them. The right to privacy by individuals is paramount, and government has no authority to try to make the means of private communications illegal. Since government obtains all of its authority by borrowing delegated authority from us, then government can't have that authority. They can't have it because we don't have that authority to let them borrow. National security is a red herring. The actual bad guy have infinite ways of getting around this like BitTor or simple VPN encryption. The heart of the matter is that the government has exceeded its authority in such a blatant way that all those responsible should go to jail. This is the kind of abuse we would only expect from a fascist dictatorship.

    1. Paul Smith

      Re: Privacy is Paramount

      Sorry, but you are fundamentally mistaken in a number of areas.

      Privacy is not paramount in any society on Earth.

      In most countries, you have extremely limited rights to privacy, which can be overridden by multiple organisations almost at will, without informing you and for reasons they do not even need to share with you. What limited protections you have in the UK will become practically non-existent in the event of a no deal Brexit as you will no longer have recourse to any court higher then the house of Lords whose views on privacy are well known and can be para-phrased as "Nothing to hide, nothing to fear".

      In all societies, your rights to privacy comes below societies right to security and in the UK, that security includes ensuring you are not trying to sneak your child into a better school that is on the wrong side of an arbitrary line on a bureaucrats map. Where did the government get these rights? From you, the voting public.

      Government absolutely does have the right to control the means of private communications and guards those rights jealously. Your knowledge of democracy appears a little weak and you clearly have no knowledge of what a fascist dictatorship looks like if you think the controls normal to almost all democratic governments counts as abuse. I hope you never find out what real abuse of power looks like.

  10. old_nic

    Laws

    The UK is a monarchy, and as such all laws ultimately derive from the monarch. Any pretence of running a democratic system of citizens as opposed to subjects is bound to fail as there is no constitution, or the only constitution is that the monarch determines the law, and that anyone acting on the monarchs behalf with the monarchs agreement can do anything. Despite the pretence, parliament can be ignored and all existing laws overturned at the will of the monarch. If parliament does not agree the next step is civil war. This basic flaw leads to a mentality that the law can be broken by civil servants and ministers of the Crown because they have not been told not to break the law by the monarch.

    1. Anonymous Coward
      Anonymous Coward

      Re: Laws

      "a mentality that the law can be broken by civil servants and ministers", isn't that the truth?

      Why was Philip Rutnam involved?

    2. flayman

      Re: Laws

      This is not how it has worked since the early 17th century Case of Proclamations. Only Parliament can change the law of the land. The monarch provides Royal Assent and in theory can withhold it, but that hasn't happened since Anne. The courts have eroded the Royal Prerogative and Parliament has passed laws that replace it. The Crown can prorogue Parliament, but even that power, previously believed to be non-justiciable, has been curtailed recently. While Parliament is prorogued, the Crown in Parliament cannot raise money or set budgets, so that cannot practically go on indefinitely. Parliament could enact a law ending the monarchy and that would be that. The current problem in the Internal Markets Bill is that Parliament is now choosing to allow a minister to make law that is treated as primary legislation and cannot be held unlawful. It is outrageous, but the application of it is limited to what the bill covers. And the Lords have amended it yesterday.

    3. Paul Smith

      Re: Laws

      The UK *has* a Monarchy, that is not the same as saying it *is* a Monarchy.

      The UK does have a constitution, it is just uncodified (it isn't written down as one document in one place).

      In the UK, Executive Authority lies with the reigning monarch, however, execution of that authority lies exclusively with the Prime Minister and the privy council.

      The last time a king had the sort of powers you think they have was King John in 1215, and those powers were stripped from him by the Magna Carta.

  11. flayman

    "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."

    Of course! And you've got an 80 seat friggin' majority.

  12. This post has been deleted by its author

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