Communications Act 2003, section 5

Directions in respect of networks and spectrum functions

Part 1 Functions of OFCOM

(1)This section applies to the following functions of OFCOM—

(a)their functions under Part 2; and

(b)their functions under the enactments relating to the management of the radio spectrum that are not contained in that Part.

(2)It shall be the duty of OFCOM to carry out those functions in accordance with such general or specific directions as may be given to them by the Secretary of State.

(3)The Secretary of State’s power to give directions under this section shall be confined to a power to give directions for one or more of the following purposes—

(a)in the interests of national security;

(b)in the interests of relations with the government of a country or territory outside the United Kingdom;

(c)for the purpose of securing compliance with international obligations of the United Kingdom;

(d)in the interests of the safety of the public or of public health.

[F48 (3A)The Secretary of State may not give a direction under this section in respect of a function that Article 3(3a) of the Framework Directive [F49 would have requiredF49] OFCOM to exercise without seeking or taking instructions from any other body.F48]

(4)The Secretary of State is not entitled by virtue of any provision of this section to direct OFCOM to suspend or restrict—

(a)a person’s entitlement to provide an electronic communications network or electronic communications service; or

(b)a person’s entitlement to make available associated facilities.

[F50 (4A)Before giving a direction under this section, the Secretary of State must take due account of the desirability of not favouring—

(a)one form of electronic communications network, electronic communications service or associated facility, or

(b)one means of providing or making available such a network, service or facility,

over another.F50]

(5)The Secretary of State must publish a direction under this section in such manner as appears to him to be appropriate for bringing it to the attention of the persons who, in his opinion, are likely to be affected by it.

(6)The Secretary of State is not required by subsection (5) to publish a direction, and he may exclude matter from a direction he does publish, if he considers the publication of the direction or matter to be—

(a)against the interests of national security; or

(b)against the interests of relations with the government of a country or territory outside the United Kingdom.

(7)Subsection (4) does not affect the Secretary of State’s powers under section 132.

Definitions used in section 5 8

OFCOM

“OFCOM” means the Office of Communications;

Defined in s.405(1) · see it in the full Act
the enactments relating to the management of the radio spectrum

“the enactments relating to the management of the radio spectrum” means—

(a)

the Wireless Telegraphy Act 2006; and

(g)

the provisions of this Act so far as relating to that Act;

Defined in s.405(1) · see it in the full Act
the Framework Directive

(7) In this paragraph “the Framework Directive” has the same meaning as in Chapter 1 of Part 2 of this Act .

Defined in Sch.18 para.10(7) · see it in the full Act

(13) In this section and sections 4A and 5, “the Framework Directive” means Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services, as amended by Directive 2009/140/EC of the European Parliament and of the Council.

Defined in s.4(13) · see it in the full Act
body

“body” (without more) means any body or association of persons, whether corporate or unincorporate, including a firm;

Defined in s.405(1) · see it in the full Act
provide

“provide” and cognate expressions, in relation to an electronic communications network, electronic communications service or associated facilities, are to be construed in accordance with section 32(4);

Defined in s.405(1) · see it in the full Act
electronic communications network

(1) In this Act “electronic communications network” means—

(a)a transmission system for the conveyance, by the use of electrical, magnetic or electro-magnetic energy, of signals of any description; and

(b)such of the following as are used, by the person providing the system and in association with it, for the conveyance of the signals—

(i)apparatus comprised in the system;

(ii)apparatus used for the switching or routing of the signals; ...

(iii)software and stored data ; and

(iv)(except for the purposes of sections 125 to 127) other resources, including network elements which are not active.

Defined in s.32(1) · see it in the full Act

“electronic communications network” and “electronic communications service” have the meanings given by section 32;

Defined in s.405(1) · see it in the full Act
electronic communications service

“electronic communications network” and “electronic communications service” have the meanings given by section 32;

Defined in s.405(1) · see it in the full Act
associated facility

(3) In this Act “associated facility” means a facility, element or service which is available for use, or has the potential to be used, in association with the use of an electronic communications network or electronic communications service (whether or not one provided by the person making the facility, element or service available) for the purpose of—

(a)making the provision of that network or service possible;

(b)making possible the provision of other services provided by means of that network or service; or

(c)supporting the provision of such other services.

Defined in s.32(3) · see it in the full Act

“associated facility” has the meaning given by section 32;

Defined in s.405(1) · see it in the full Act

Cases considering section 5 6

R (on the application of VIP Communications Ltd (In Liquidation)) v Secretary of State for the Home Department

[2023] UKSC 10 · 8 March 2023Limits

The section reserves national security, public safety and the other specified vital national interests to the Secretary of State within the telecommunications regulatory scheme. Its direction-making power extends to preventing Ofcom from making exemption regulations (see paras [33]-[40]; [49]; [71]). Ofcom's duty to carry out its functions in accordance with ministerial directions qualifies its otherwise applicable duty to make exemption regulations. Carrying out a function includes refraining from action pursuant to a lawful direction (see paras [40]; [47]-[49]; [71]). The subsection confines ministerial directions to four purposes involving vital national interests. Those matters are reserved to the Government and lie outside Ofcom's technical and regulatory assessment under the exemption regime (see paras [33]-[34]; [39]; [43]).

VIP Communications Ltd (In Liquidation), R (On the Application Of) v The Secretary of State for the Home Department

[2020] EWCA Civ 1564 · 20 November 2020Limits

The Court treated section 5 as the source of the Secretary of State’s direction-making power, but held that its scope did not extend to overriding the exemption duty in section 8(4) of the Wireless Telegraphy Act 2006. (see paras [55]; [62]-[65]) The Court interpreted section 5(2) as requiring Ofcom to carry out functions it actually performs in accordance with directions, without empowering the Secretary of State to direct non-compliance with another statutory duty. (see paras [54]-[65]) The Court treated subsection 3 as an express limitation on the direction-making power, but held that it did not imply any additional power to override Ofcom’s statutory duties. (see paras [59]-[60]) The Court treated subsection 3A as an express limitation on the direction-making power, but held that its inclusion did not establish a further implied power to override statutory duties. (see paras [59]-[60]) The Court treated subsection 4 as an express limitation on the direction-making power, but held that its presence did not imply a further power to override Ofcom’s statutory duties. (see paras [59]-[60]) The Court treated subsection 4A as an express limitation on the direction-making power, but held that its inclusion did not imply a further power to override Ofcom’s statutory duties. (see paras [59]-[60])

Recall Support Services Ltd & Ors v Secretary of State for Culture, Media and Sport

[2014] EWCA Civ 1370 · 28 October 2014Limits

The provision empowered the Secretary of State to direct Ofcom for national-security purposes. The court doubted that it could override Ofcom’s statutory exemption duty, but held that compatibility with the directive did not depend upon that power (see paras [55]-[59]). The duty to perform relevant functions in accordance with ministerial directions could not readily be read as authorising Ofcom to disregard another statutory duty (see para [56]). The subsection protects existing entitlements from suspension or restriction. It does not prevent a direction which stops a new entitlement arising through an exemption (see para [57]).

What each judgment says about section 5 is in the case-law panel in the full Act.

Explanatory note

35.This section gives the Secretary of State a power to give directions to OFCOM in respect of: (i) their functions relating to networks, services and the radio spectrum under Part 2 of the Act; and (ii) their functions relating to the management of the radio spectrum not contained in Part 2. Such directions may only be made for one or more of the purposes listed in subsection (3). Those purposes are: national security, relations with foreign countries, compliance with international obligations, public safety and public health.

36.The Secretary of State may not use her powers under this section to direct OFCOM to suspend any person’s entitlement to provide electronic communications networks or electronic communications services or to make available associated facilities. This can only be done by a direction given by the Secretary of State in accordance with the provisions of section 132. Section 132 gives the Secretary of State express power to direct OFCOM to suspend or restrict entitlement, where this appears to her to be necessary to protect the public from any threat to public safety or public health or in the interests of national security.

  • *associated facilities are defined in section 32.

37.The Secretary of State must publish a direction issued under this section unless publication is against the interests of national security or relations with foreign countries.

All the explanatory notes for the Act

Amendments and notes

6 notes from legislation.gov.uk

Amendments

  1. F48S. 5(3A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 7(a) (with Sch. 3 para. 2)
  2. F49Words in s. 5(3A) substituted (21.12.2020) by The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 (S.I. 2020/1419), reg. 1(2), Sch. 1 para. 5
  3. F50S. 5(4A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 7(b) (with Sch. 3 para. 2)

Commencement

  1. I11S. 5 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) text for certain specified purposes only, see the commentary.
  2. I12S. 5 in force at 18.9.2003 in so far as not already in force by S.I. 2003/1900, art. 2(2), Sch. 2
  3. I13S. 5 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)