Monday 23rd October 2017
(7 years, 1 month ago)
Lords ChamberSpace Industry Act 2018 View all Space Industry Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 7-III Third marshalled list for Committee (PDF, 72KB) - (19 Oct 2017)
The Lord Speaker (Lord Fowler)
My Lords, it might be for the convenience of the House if those who are not engaged in the Space Industry Bill would like to leave at this point before we go on.
Lord McNally
Lord McNally (LD)
My Lords, I will in due course also speak to Amendments 41 and 42 in this group.
We have heard a lot recently about Parliament taking back control, yet no Government have done more in recent times to weaken parliamentary scrutiny and strengthen the power of the Executive than this one. They load up Bills with powers to be enacted by secondary legislation, and then complain if either House of Parliament objects to the powers thus taken. The truth is that we ain’t seen nothing yet. The Bill is just a taster of what is to come. We are of course dealing with our old friends the Henry VIII powers. As the Select Committee said on the matter:
“The number of delegated powers granted by the Bill is notable —the Bill has 71 clauses and confers approximately 100 delegated powers. Some of those powers are very broad”.
These should be called the Conrad Russell amendments. During my early years in this House, the late Lord Russell would root out and oppose Henry VIII clauses in Bills from both Conservative and Labour Administrations. As a Minister, I may even have tried to push through the odd Henry VIII power myself. Parliament should be wary of them.
Amendment 40 leaves out the catch-all term “enactment” and inserts the more precise and narrow reference to “secondary legislation”, so that SIs cannot amend primary legislation and only secondary legislation made under Clause 66 can be amended, repealed or revoked by secondary legislation. Amendment 42 would ensure that if we cannot stop SIs amending primary legislation, any regulation under this clause which seeks to repeal primary legislation is subject to annulment in pursuance of a resolution of either House of Parliament.
Whatever the outcome of Brexit, it is clear that the Government wish to find ways more easily to future-proof complex legislation. If we are to put the best gloss on these attempts at Henry VIII powers, this is about government trying to be more flexible as the impacts of legislation become clear. However, it involves weakening parliamentary scrutiny. Although this is a debate on the Space Industry Bill, it raises many important issues, which we should look at ways of dealing with in the long term. Certainly, the Select Committee has a good claim for taking this on as a broader issue, or perhaps the Lord Speaker and the Speaker could set up a Joint Committee. However, current parliamentary procedures are not adequate to deal with legislation such as immensely complex, technical Bills—we will soon have another one: the Data Protection Bill—which try to legislate for rapidly changing technologies. Henry VIII powers are not the solution, and although we put down these amendments in an attempt to proceed with this Bill, this is a longer-term problem that is a long way from being solved. I beg to move.
Lord Lester of Herne Hill (LD)
My Lords, I will say few words in support of the general propositions that my noble friend Lord McNally has referred to. I have come to the sad conclusion that the Government do not believe in parliamentary democracy but in executive government, and that they use every means they can to avoid Parliament’s scrutiny. The particular example that I am concerned about is what has happened to the Joint Committee on Human Rights; that goes back many years to when the noble Baroness, Lady Corston, chaired it and I first joined it. Lords committees are relatively safe, because we can protect them within this House. However, a Joint Committee of both Houses depends upon co-operation by both Houses. The Joint Committee on Human Rights is a vital constitutional safeguard that looks at every Bill and some delegated legislation for its compatibility with human rights. It is quite unacceptable that on the Commons side, the places have not been filled and the committee has therefore not met or sat, not just for weeks but for months now. It is an outrage and I very much hope that the Minister will pass on that message to some of his colleagues. Without that public watchdog, parliamentary scrutiny is very much weakened, and therefore I support everything that my noble friend Lord McNally has said.
Lord Judge (CB)
My Lords, I too support what the noble Lord, Lord McNally, has said. The whole of this part of the Bill—Clauses 66 and 67—raises the same basic point. I will address what I have to say in relation to these amendments and come back, if I may, on Clause 67.
I know that I am being very old fashioned—almost constitutional—but why are we giving a Henry VIII clause the heading of “Minor and consequential amendments”? It is perfectly true that Clause 66(1) provides for minor and consequential amendments. That is because it introduces and gives effect to Schedule 12, which contains a whole series of consequential amendments that follow from the Bill. However, thereafter we are dealing with a regulation-making power that will enable the Executive—in this case, the Secretary of State—in due course to come back to the House to get more power to overrule, set aside and get rid of primary legislation. I do not regard that as minor. It is a very serious issue for regulation, whether through the Secretary of State or anybody else, to set aside Parliament.
I shall have to reserve what I say about Clause 66(6), which concerns the devolved Administrations, to when we come to the next amendment. However, I strongly object to legislation such as this being expressly regarded as minor.
Lord Deben (Con)
My Lords, most of us are very much in favour of this Bill. Most of us want to make Britain the sort of place where space exploration right across the board is a natural part of what we offer the rest of the world. That is where we start from. Most of us are perfectly prepared to understand that minor and consequential amendments need to be made to laws as the world changes. However, most of us are here because at some point in our lives we have cared about the British constitution and about Parliament restricting the powers of the Executive by saying that, if primary legislation is to be changed, it is to be changed here in Parliament and not outside it by people who are not subject to Parliament. I am deeply concerned that much legislation will be brought into disrepute because people will believe that they no longer have a say in the proper procedure of making laws.
If this legislation were the only case where such a proposal is being made, I suppose one might be able to argue that so complex, detailed and particular is this matter that some special arrangement needs to be made. However, it is not the only case; it is a regular activity that this House has had to refuse. I have to admit that there were three occasions when the current Secretary of State was the Minister for Legal Affairs and I was one of those who managed to reverse attempts to take into the hands of Ministers power which ought to be in the hands of Parliament.
I say to my noble friend that one danger is that this House will have to take a more active part in secondary legislation if that is where the decisions are to be made. It is a very cumbersome system, and there is a mechanism here that would make it almost impossible to use, so that is not what we want to do. I say to my noble friend that this is not a small matter. Maybe the people in the Chamber who think this Bill is all about space have left it to those of us with an interest in the subject, but the fact is that every Member of this House ought to be interested in ensuring that primary legislation is not changed other than in a primary way in which Parliament plays a proper part.
I would like my noble friend to realise that this is a growing concern on this side of the House—it is not something that is going to slip through. More and more people are saying that legislation is being passed to give Ministers powers they should not have. The point I am making is that I was a Minister for 16 years, and I do not think I should have been given these powers. I know very well that when you are a Minister, you take things very carefully if you are going to have to report to Parliament. It is different from having a power to act on your best intentions. It is a much harder and tougher thing—and so it should be; that is what we are here for. We should not allow the Government to change what has been the attitude and concern of all Governments, of all sides, which is to reserve to Parliament that which is parliamentary, and not to try to steal it for the Executive.
Lord Moynihan (Con)
My Lords, I declare my interest as a member of the Delegated Powers and Regulatory Reform Committee and say that I am speaking personally in this debate and not on behalf of that committee. I support what the noble Lord, Lord McNally, is seeking to achieve in these amendments and the important principle he has raised. I also echo the words of my noble friend Lord Deben as well as the views both of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Lester.
This is an issue which, every Wednesday, I consider in detail during the Select Committee’s proceedings. It is not an issue that is receding—it is growing. In the original draft of this Bill, there was provision in regulations to allow the Secretary of State to do this, and this was consequential on any provision in the Space Industry Bill. It included a Henry VIII power to amend, repeal, or revoke any Act of Parliament made since the beginning of parliamentary history—in other words, completely changing any aspect of preceding law in the context of this Bill.
I recognise that the Government have moved on from where the draft Bill was published to where we are today. I welcome this and thank them. They have taken into account a whole series of concerns that have been expressed very eloquently this afternoon, and in previous debates. Many of the Henry VIII powers have gone. Many of the statutory instruments will now be by affirmative rather than negative resolution. It is all in the right direction to enable Parliament to determine its view on many of the key issues in this Bill.
The Space Industry Bill requires a lot of detail in secondary legislation to achieve the single most important objective—the commercial success of this industry within an appropriately regulated authority. We are focusing on the regulations, but it is all too easy for Government to either make a success or a commercial failure with the industry in terms of the regulations they propose. Because of the importance of the commercial aspect of the Bill in encouraging this industry to come to this country and to provide potentially tens of thousands of jobs and activities in areas of unemployment, what is in that secondary legislation will be critical. That is why I think it is right that the noble Lord, Lord McNally, and others have spoken to this subject in the context of this Bill as well as in principle. If we do not focus now, as we will during this debate, on the nature of the Henry VIII powers and where there will be affirmative or negative resolutions and procedures, we could be putting into law a Bill which actually is of no value, unless the secondary legislation and the negotiations with industry are successful. We will need to come back to this House to look at what is achieved in that context and have our say. That is vital for the success of the objectives of this Bill.
Having said that, I reiterate once more that there has been huge progress as a result of the reports of the Delegated Powers and Regulatory Reform Committee, reports in another place and the fact that the Government have been listening. We should also place that on record, because there are significant changes from the original draft Bill, which have taken into account the importance of Parliament having a say on the secondary legislation that will be coming forward.
Lord Rosser (Lab)
We have Amendment 42 in this group, but I will also speak to Amendments 40 and 41 since that will save me having to go through the points all over again when we come to my Amendment 45.
As has been said, the Bill gives extensive delegated powers to the Secretary of State, and thus the Government, without the policy details and parameters of those delegated powers being spelled out in the Bill. The Delegated Powers and Regulatory Reform Committee has described it as a “skeletal Bill”. Consequently, it is difficult to scrutinise it meaningfully. The Government have not published any draft regulations because such regulations are little more than a twinkle in the Government’s eye at present. Formal consultation will not even start on those draft regulations for at least another year. Even then, the Government do not expect the regulations to be laid until the summer after next—nearly two years at the earliest.
Why, then, the necessity for the Bill now? The Government maintain in a letter the Minister sent to me on 6 September that it is needed to give a, “concrete indication to investors that the UK is serious about promoting growth in the space sector and delivering on spaceflight”. So serious and committed, though, are the Government to promoting that growth that the statutory instruments will be laid in nearly two years’ time at the earliest,
“subject to Government priorities and Parliamentary time”,
according to page 5 of the Government’s policy scoping notes. It does not seem to indicate that this is a government priority when there is apparently still some doubt as to whether those statutory instruments will be laid in nearly two years’ time.
The reality is that, with the crucial regulations, a Bill of 71 clauses and approximately 100 delegated powers not being laid at the earliest for another two years and then only subject to Government priorities and parliamentary time, this proposed legislation would not yet see the light of day if the Government still had a legislative programme to enact at present. Since, because of Brexit, they do not, this skeletal Bill, which seeks to avoid proper parliamentary scrutiny on future key details through excessive use of delegated powers, is being brought forward now to try to fill up some of the gaping holes in parliamentary business arising from the Government’s programme of non-legislation in the current Session.
The Government appear to have very little idea what the surfeit of regulations will say, whose interests they will impact on or what existing legislation or even legislation still being enacted or to be enacted in the present Session will be cut across by those regulations. As a result, the Government want Henry VIII powers, giving them the right effectively to bypass Parliament by being able by regulations to make provision that is consequential on any provision made by this Act, with the power being used to,
“amend, repeal or revoke any enactment passed or made before this Act or in the same Session”.
The Government have produced policy scoping notes, which tell us that, “The purpose”, of Clause 66,
“is to give effect to the minor and consequential amendments contained in Schedule 12”.
If that is the case, why have the Government not put that in the Bill? The reason is simple: the purpose of Clause 66, despite the wording of the scoping notes, is not intended by the Government to give effect to the minor and consequential amendments contained in Schedule 12. Instead, it is merely one of the purposes of Clause 66. As even the scoping notes subsequently say,
“it is possible that other changes may be required and clause 66(2) and (3) confer a power for the Secretary of State to make such changes through secondary legislation”.
The notes then go on to say:
“This power is needed to make any further minor and consequential amendments to other enactments passed before the Act or during the same Session that become apparent during the development of detailed secondary legislation”.
What is the definition of “minor and consequential amendment”, wording used in the Bill as the heading for Clause 66? Perhaps there is not one; perhaps it is whatever the Secretary of State deems minor and consequential. The Government do not use the words, if my memory serves me right, but they use the words “minor and consequential amendments” in respect of the powers in subsections (2) to (4). Why is that?
The policy scoping notes, outlining the content of subsections (2) and (3), state:
“Spaceflight is a complex activity and whilst related areas of law have been scrutinised it is impossible to rule out the possibility that some other rule of law might be engaged in the future. Equally, spaceflight or associated activities might need to be brought in scope of other laws, as the possibility of spaceflight activities from the UK would not have been contemplated when they were drafted. Therefore the content of the regulations in relation to subsections (2) and (3) will only become known as the secondary legislation develops and further regulations may also be made in the future as and when they are required”.
Precisely—so how can the Government now say that any amendments relating to other enactments, including repeal or revocation, will be minor and consequential and go no further than that? Would the provisions of Clause 66 enable the Government to amend, repeal or revoke any part of the Space Industry Bill by regulations, once it becomes an Act?
The wording of the scoping notes and, indeed, Clause 66 makes it clear that the power to “amend, repeal or revoke” is permanent and apparently not time-limited. The Government have not proposed a time limit on the use of those powers; not even up to October 2019, when presumably the main regulations, covered by six statutory instruments, will have been made and dealt with by Parliament. We surely cannot have such largely unrestricted powers on the statute book in respect of effective parliamentary scrutiny of the powers under Clause 66(2) and 66(3) for ever and a day, on the basis of a Government statement in their policy scoping notes that because spaceflight is a “complex activity”,
“further regulations may also be made in the future as and when required”,
when these are regulations that may,
“amend, repeal or revoke any enactment passed or made before this Bill or in the same Session”.
In that context, we already know that the amendments in Schedule 12 alone already cover 20 Acts of Parliament, including two terrorism Acts and the recent Modern Slavery Act. Neither does the argument hold that there will be insufficient parliamentary time to deal with matters under Clause 66 by primary legislation where the regulations involved are amending such legislation, and that is leaving aside the argument that the convenience of government and the Executive should not take priority over the role of the legislature in examining, challenging, amending and passing proposed legislation.
The Government propose in 2019 to lay the tranche of regulations enabling them to exercise the 100 or so delegated powers in the Bill, apparently through just six statutory instruments. That suggests there would hardly be a blizzard of Bills for Parliament to consider if the Henry VIII powers in Clause 66, in respect of Acts of Parliament, were not there.
I share the views that have already been expressed that the Government need to have another long, hard look at Clause 66 and what it actually means, as opposed to what they say it means.
The Parliamentary Under-Secretary of State, Department for Transport (Lord Callanan) (Con)
My Lords, I thank all those who have contributed to the debate so far. I have carefully noted all views.
I know there is considerable concern about the granting of Henry VIII powers—I would be worried if noble Lords did not express such concerns—because of the wide scope of such powers to amend primary legislation that underwent parliamentary scrutiny and debate. However, I assure the Committee that we have given very careful consideration to the need to include such a power. The noble Lord, Lord Moynihan, acknowledged that we have already acted on many of the concerns expressed, and we have modified the Bill considerably as a result of many of the points put to us by committees in this House and the other place.
Lord McNally
Certainly, the two amendments over which I have control, Amendments 40 and 41, will not be pressed. The best compliment that Jim Callaghan ever paid me when he was Prime Minister and I was his political adviser was, “You’re my mine detector”, by which he meant that I supposedly had the knack to warn him when he was walking into a major problem. History shows that that did not always work, but that is another story.
I say with all sincerity, this is a small debate in a small Committee at the end of a Bill which, as the noble Lord, Lord Moynihan, indicated, we all want to see pass into legislation. However, the noble Lord, Lord Rosser, made some powerful criticisms which the Minister should read and take note of. When he brings to the House the noble Lord, Lord Lester, and the noble and learned Lord, Lord Judge, as well as a couple of our regulars, the noble Lords, Lord Deben and Lord Moynihan, all saying that this is a big issue that needs a lot more thought, as a mine detector—retired—I recommend that he gives it some thought between now and Report. In the meantime, I beg leave to withdraw the amendment.
Baroness Randerson
“( ) Regulations under this section may not—(a) amend or repeal an Act of the Scottish Parliament without the agreement of the Scottish Parliament;(b) amend or repeal an Act or Measure of the National Assembly for Wales without the agreement of the National Assembly for Wales; or(c) amend or repeal Northern Ireland legislation without the agreement of the Northern Ireland Assembly.”
Baroness Randerson (LD)
My Lords, I am sure noble Lords will have noted that this amendment has support from the Labour Benches. That is significant. We are still on Clause 66—not the most popular clause in the Bill. As the Bill stands, the Secretary of State could make “minor and consequential amendments”—that phrase again—to an Act of the Scottish Parliament, an Act or Measure of the Welsh Assembly or any Northern Ireland legislation, without the consent of the relevant national legislature. This amendment would require its consent if any regulations created under this section would amend legislation it had passed.
I set out the arguments for the need for specific reference to the powers of the devolved legislatures in debate last week, so I will not detain the House by going into detail on that aspect again—save to say that a spaceport would have a major impact on its surrounding area, so conflicting views on access to land, rights of way and so forth could well arise. It is therefore essential that there is no possibility that the UK Government have the power to override the legislation put in place by the devolved Administrations. I will give an example. Planning law in Wales has diverged quite considerably from that in England and could be applied in relation to spaceport building in a very different way from the way the UK Government might expect it to be applied. Since the licensing process remains with the UK Government, the likelihood of conflict exists. It is simply not acceptable for the UK Government to have the power, if they find that a conflict exists, to be able to solve that conflict by amending devolved legislation without the specific agreement of the relevant legislature.
I noted the Minister’s definition of “minor and consequential”. The sort of situation I am thinking of would be covered by the term “consequential amendment”. I draw the attention of noble Lords to the comments of the House of Lords Constitution Committee, which stated:
“The Bill does not … make any provision for the devolved legislatures’ consent to be sought in respect of regulations amending or repealing devolved legislation. We noted a comparable issue in our scrutiny of the Wales Bill 2016-17. The House may wish to consider whether it would be more appropriate for the consent of the devolved legislatures to be required when this power is used to amend or repeal legislation enacted by them—as, for example, is the case for certain statutory instruments made under the Legislative and Regulatory Reform Act 2006 and the Public Bodies Act 2011”.
That paragraph means that, first, the Government have previous on this—they tried to do the same thing in what is the now the Wales Act and provoked a huge amount of controversy; and, secondly, that there are ways of doing it, and it was done satisfactorily in both the regulatory reform Act and the Public Bodies Act. I urge the Minister to take the amendment away and give it serious thought. There is cross-party support and the judgment of the House of Lords Constitution Committee is against this aspect of the Bill. Surely those two forces together should persuade the Government to think again. I beg to move.
Lord Steel of Aikwood (LD)
My Lords, I will speak very briefly in support of what my noble friend has just said. As a former Presiding Officer of the Scottish Parliament, I must admit that I know nothing about this particular Bill—but the principle she had enunciated is very important. Indeed, it seems to me that this clause, unamended, almost falls foul of the Scotland Act as we passed it in this House. So I hope that the Minister will take this issue away. I see no reason for having this in the Bill at all. It surely should be possible, as a matter of courtesy, simply to talk to the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly—if it was recreated. I do not see the need for this issue to arise at all. It is a very dangerous principle and I am grateful to my noble friend for raising it.
Lord Rosser
My Lords, my name and that of my noble friend Lord Tunnicliffe are attached to the amendment moved by the noble Baroness, Lady Randerson. The points have already been made in support of the amendment and reference made to the views expressed by the Constitution Committee in its report. One hopes only that the Government are going to take on board what the Constitution Committee had to say.
Lord Judge
My Lords, I apologise to the Committee that when I spoke a few minutes ago I did not indicate that I was a member of the Constitution Committee. I indicate it now. I do not want to repeat everything that the Constitution Committee said—but, with respect, although I do not speak for the Constitution Committee, there is an awful lot of constitutional sense in that paper.
Lord Hope of Craighead (CB)
My Lords, I support the noble Baroness and the noble Lord, Lord Steel, in relation to this amendment, looking particularly at the devolution settlement which was the subject of the Scotland Act 1998. I think it is also relevant to mention Section 2 of the Scotland Act 2016, which put the Sewel convention into statute and expressed a principle in relation to primary legislation that would apply with equal force to the issue we are considering today.
The area of devolved competence that is most at issue here can be seen if the Minister looks at Clause 46, which refers to:
“Compensation in respect of planning decisions”.
There are two phrases there: “compensation in respect of”—so compensation is something that is devolved, in this field at least—and “planning decisions” are also a devolved competence in respect of the devolved legislatures. Planning is absolutely at the root of the enterprise that one is contemplating in setting out the locations through which spaceflights and other activities might take place.
The Scottish Parliament, for whom I speak, as best I can, because I understand the Scottish position better than the Welsh or Northern Irish one, will take a very close interest in the way in which this Act is put into force—and, indeed, in framing its own legislation for the future. One has to bear in mind that Clause 66 deals not just with the past, and with what is listed in Schedule 12, but with what the Parliament may do in future in this area. One cannot predict exactly what it will provide for but it is very likely that planning and compensation will be a matter of anxious debate in the Scottish Parliament.
None of the provisions listed in Schedule 12 are, I think, devolved measures; they are not measures passed by the Scottish Parliament, the Welsh Assembly or the Northern Ireland Assembly. So we are looking into the future and at how Clause 66(2) will operate, bearing in mind the way in which the devolved legislatures will look at these crucial issues, especially planning. So these are some words of general support for the point that the noble Baroness is making; I stress the areas of compensation and planning because of how crucial and central they are to how the Bill is likely to operate in future.
Lord Moynihan
My Lords, without repeating the arguments that I made when the noble Baroness, Lady Randerson, introduced a not dissimilar amendment to the Bill, the one vital example that has been touched upon is that in Scotland planning applications are appealed to the Scottish Government. Decisions may have been made by them and yet there is no provision in the Bill not just for consent but for even entering into dialogue with the devolved Assemblies and Parliaments. I say that in opening because it is also important to emphasise that the Bill, being a regulatory framework for commercial activity, will require a significant commitment from all parties.
Noble Lords will be pleased to learn that I was on the bus at Paisley Gilmour Street this morning, en route to Glasgow Airport, and sitting next to Philippa Whitford, the SNP MP for Central Ayrshire. Her knowledge is second to none on the subject of Prestwick’s application; her commitment is total and her enthusiasm is on the record for the success of the project with gold-medal status. I say to the noble Lord, Lord Steel, that if he does not know anything about the Bill he has an immediate invitation from all parties, not least my noble friend Lady Ford—she is my noble friend on the Bill as she lives on the other side of Prestwick, while I am on the far side of it—to come along and see for himself the tremendous opportunity that a successful application for a licence would being to South Ayrshire.
That is important because support for a bid such as this comes not just as a result of commercial arrangements but from the success of the site in gaining grants on the one hand—it would be on the basis of grants from the UK Space Agency—and of ongoing support and investment from the Scottish Government. Consultation and co-operation between devolved Administrations and commercial parties will be vital for the success of the Bill and critical to its successful implementation. For that reason, it is important to go one step further than we would normally go in Bills of this type by recognising and emphasising the importance of co-operation and consultation in the Bill, and by providing the framework to achieve that goal.
Baroness Sugg (Con)
My Lords, Amendment 43 raises the important matter of consulting the devolved Administrations of Scotland, Wales and Northern Ireland during the development of the Bill. As the noble Baroness, Lady Randerson, mentioned, we discussed this last week in Committee. As my noble friend Lord Callanan said, the devolved Administrations have confirmed with us that they are content with the provisions of the Bill as drafted and that no legislative consent Motion is required.
Last week, the noble Baroness, Lady Randerson, raised the Bus Services Act 2017. I should like to say a few words about that comparison. Section 17 of that Act inserts new provisions into the Equality Act 2010, including powers to make regulations for the purposes of facilitating travel for disabled persons and for exempting certain vehicles from those regulations. The new sections in the Act require that the Secretary of State must consult Welsh and Scottish Ministers. In this case, we believe that is appropriate, although not strictly necessary, because the new regulation-making power was at the intersection of devolved and reserved matters. The operation of bus services is a devolved matter but equal opportunities is reserved in Scotland and Wales. Therefore, the Equality Act extends to the whole of Great Britain and so do the inserted provisions.
We believe Clause 66 should be treated differently as the whole subject matter of the Bill is reserved. Although some consequential changes to existing legislation required as a result of the Bill have been identified and made under Schedule 12, further changes may be needed, especially in an evolving technology market. As such, the power to make further changes through secondary legislation is necessary to ensure the UK has an effective enabling legislative framework for spaceflight activities.
Since the subject matter of the Bill is reserved, any consequential amendments made to legislation of the devolved legislatures under the Clause 66 power could only be consequential on a reserved matter. This means that any amendments to devolved legislation that could be made under this power would not require the consent of the devolved legislature if they were made by UK primary legislation. If included in Schedule 12, for example, they would not necessitate a legislative consent Motion. It would therefore be inconsistent to require the consent of the devolved legislature just because such amendments are made in regulations instead of in primary legislation.
As we have said, we have consulted extensively with the devolved Administrations on the Bill and I can assure noble Lords that we would consult the devolved Administrations on any consequential amendments that amend, repeal or revoke their legislation both at the policy development stage and on draft regulations themselves. This is in line with long-standing government policy set out in Devolution Guidance Notes 8, 9 and 10. We have heard the arguments from the noble Baroness and from all sides of the House and we will reflect on them. I therefore ask the noble Baroness to withdraw the amendment.
Baroness Randerson
I thank the Minister for her comments. I am grateful for the support across the House for this amendment. We have two forces at work in this clause. One is the Government’s tendency to seize as much power for themselves as possible—that is not unusual in Governments—but it is fatally linked with the desire of the Government to pad out their legislative programme with a series of apparently uncontroversial good ideas. The Bill has support across the House, but we are filling in time before the Brexit blunderbuss arrives. It worries me that we have not been able to see the regulations so we cannot see what the Minister is talking about and it is difficult to imagine exactly how that situation could apply in practice.
Nevertheless, I draw the Government’s attention to the Constitution Committee’s comments. I might be misreading the Bill but I very much doubt that the Constitution Committee could possibly be misreading the Bill, and if it is worried about it, there are serious grounds to be worried about it. The fact that the devolved Governments have not yet drawn attention to it does not necessarily mean that it will not cause a problem in the end. I have tried to explain that planning issues will be at the crux of the matter. It is simply not good enough to rely on the Sewel convention in this. In fact, this undermines the Sewel convention, which states that the Government will not normally legislate on behalf of the devolved Administrations.
When we have discussed in the past what “normally” means, people have imagined that there might be a state of national emergency, where there might be a need for haste that would involve instant legislation. However, this is not the kind of thing that you would think would be an exception to “normally”. I will take this away and read the record in Hansard, but I very much hope that the Government will take this away and look at it carefully. What would the harm be in including the usual provision about consulting the devolved Governments and legislatures? I see no harm in it. We are not going to be setting up spaceports as a matter of urgent emergency—it is something that will take months and years. There would be no delay involved in consulting them, and there is a great deal of good will to be had in committing to consult them. Having said that, I am happy to withdraw the amendment.
Lord Fox (LD)
My Lords, there appears to be a theme developing in this afternoon’s debate. In moving Amendment 44, I will also speak to Amendments 46, 47, 48, 49, 50 and 51. Again, we are on the subject of catch-all powers. Despite our having about 45 minutes left, I will keep this relatively brief.
Clause 67(1) states:
“Regulations may make provision generally for carrying this Act into effect and for achieving the purpose set out in section 1(1)”.
We regard this as a catch-all power that should be removed, which would be done by Amendment 44.
Amendments 46 to 50 relate to Clause 67(6), which stipulates that general regulations must be made using the affirmative procedure but that for those that will be made under certain sections, only the first regulations are subject to it. In other words, the first go through the affirmative procedure but the rest follow behind without it. These amendments would remove the word “first” in each paragraph, subjecting all regulations that will be made under the relevant sections to affirmative procedure. I believe that Amendments 46 to 50 enjoy Cross-Bench support. During Second Reading, my noble friend Lord McNally highlighted the need for the sector to be continuously consulted to ensure that legislation is fit for purpose.
Amendment 51 proposes that before any secondary legislation is made under the Act, the Secretary of State must consult the various relevant bodies to ensure that this is done. The Minister may have a view as to which the relevant bodies are, but the principles of consultation and affirmative change are enshrined in these amendments. I beg to move.
Lord Rosser
I will be very brief. Most of the amendments in this group relate, as the noble Lord, Lord Fox, has already said, to views expressed by the Constitution Committee and the Delegated Powers and Regulatory Reform Committee. The reasons for the committees holding the views that they do are set out in their reports before us at the moment. I simply add that our names are attached to Amendments 44 to 50, and once again we hope that the Government will take note of what the Constitution Committee and the Delegated Powers and Regulatory Reform Committee have to say.
Lord Judge
My Lords, I rely on the report of the Constitution Committee but I wonder what the point of the clause actually is. We have a proposed Act of Parliament, Clause 1 of which tells us that the Act is going to regulate,
“space activities … sub-orbital activities, and … associated activities, carried out in the United Kingdom”.
Then there are the Henry VIII powers in Clause 66, with the Secretary of State able to dispense with any part of the statute. Now we have a regulation-making power in Clause 67(1) that enables the creation of regulations to carry the Act into effect, presumably because something has gone wrong with the way in which Clause 1 operates. If Clause 1 gives statutory power to regulate space activities and so on, what on earth do we need a further regulation-making power for? This Act is brim-full of regulations. Is this just belt and braces, or is it belt, braces and a rather heavy boot?
Lord Balfe (Con)
My Lords, I declare an interest as vice-president of the British Airline Pilots Association and president of the British Dietetic Association because the point I want to make is a trade union one. Amendment 51 contains an impressive list of bodies. I am sure the Minister will point out that there is no need to consult all the people listed on all the regulations that may be made, and I hope he will then say that it will of course be his policy to consult any relevant bodies to get their opinions before any regulations are made. I would like the Minister to say as part of his reply that that will also include the appropriate trade unions that represent people who will be affected. It is important that the Minister consult all the interested parties, and a specific mention of the importance of consulting the appropriate trade unions would be welcome.
Baroness Sugg
My Lords, it is of course important that regulations are made within the scope of the delegated powers in the Bill and that they are subject to appropriate parliamentary scrutiny. We have thought very carefully about the delegated powers and the oversight of such powers in the Bill and, as my noble friend Lord Callanan mentioned, we have also taken on board a number of recommendations made by the Delegated Powers and Regulatory Reform Committee. However, I note that some of the amendments we are debating here relate to recommendations by the committee that the Government have not accepted, or indeed have been raised by the Select Committee on the Constitution.
Amendment 44 relates to the broad regulation-making power for carrying a Bill into effect and seeks to remove it. I understand the intention behind the amendment and the concern that it may undercut judicial review in the event that the Secretary of State exceeds his or her delegated authority. I assure noble Lords that the Government do not believe there is any need for concern in this case. The scope in Clause 1(1) provides a limitation on the exercise of powers by the Secretary of State in making regulations. That will ensure that only regulations relating to the activities that are the subject matter of the Bill can be made by Ministers. If the Secretary of State were to exceed his or her delegated authority in making regulations under the clause, that ultra vires exercise of powers would be subject to judicial review.
In Committee last week, some concerns were raised about what “associated activities” were contemplated within the scope. These would cover only matters, such as the regulation of spaceports and the provision of range control services, that have a direct link to spaceflight activities. The purpose of the Bill covering associated activities is to provide for activities to be regulated only where there is no current applicable regulation or oversight, and where it is appropriate and necessary to regulate those activities.
The next set of amendments deal with changing the proposed initially affirmative and subsequently negative procedures to affirmative on all occasions. Noble Lords raised their concerns about this approach during our debate last week. I understand that this procedure could possibly be open to abuse. Noble Lords have argued that the Government may make the initial instruments skeletal and leave the detail to later instruments, thereby denying Parliament the opportunity to thoroughly examine the content of the instruments. I reassure noble Lords that this will not be the case. The Government are well aware that if that were to happen, the Joint Committee on Statutory Instruments would be likely to report it as an unexpected use of powers.
The development of the first sets of regulation—including those on safety and security—will be subject to a rigorous stakeholder engagement process over the coming months. This will include a call for evidence that will give everyone, including noble Lords, the opportunity to input into the development of the instruments. The Government will then issue a full and wide-ranging consultation on each of the initial draft statutory instruments prior to their being laid. I assure noble Lords that if there were any material change to the original instruments, there would be further consultation. In light of these safeguards, we believe that the current procedure set out in the Bill provides appropriate and proportionate parliamentary oversight.
Moving on to Amendment 51, it is of course important that interested persons are made aware of proposed legislative changes which may affect them, no matter how minor the change. Although we welcome the spirit of the amendment, the Government believe that creating a statutory obligation to formally consult all listed bodies and persons on any proposed amendment is unnecessary. It is not appropriate to do this for all changes made through regulations—for example where minor, incidental, transitional or saving provisions are required.
However, if the intent behind the noble Lord’s amendment is to ensure that the Secretary of State is able to demonstrate that he is seeking the views of the parties that will be impacted by the changes, we can absolutely assure noble Lords that that will be the case. In line with existing practice under better regulation principles, the Government will continue to engage with regulators and other interested persons as appropriate, including the devolved Administrations, when contemplating making legislation affecting them. This will involve full consultation with a wide range of stakeholders where substantive changes to regulations that affect their interests are proposed.
My noble friend Lord Balfe mentioned trade unions. As I said, we intend to consult widely and publicly, which will of course include relevant trade unions. I hope that I have responded to noble Lords’ concerns. As I said on the previous group of amendments, we are listening to the concern raised from all parts of the House and will take it back and reflect ahead of Report, but I ask the noble Lord to withdraw his amendment.
Lord Fox
My Lords, I thank the Minister for her answers. Some of them may have been helpful—I will review them, probably with a lawyer sitting on my shoulder to help me—but not completely so, I suggest. The noble and learned Lord, Lord Judge, has described the web of seemingly self-reinforcing executive powers, supported by another Henry VIII Act, weaving their way throughout the Bill. We will need to see what emerges: what the Government think that they have to leave in and what—we hope, having had this debate—they believe it would be more sensible to take out. We need to see that in full.
On the substance of Amendment 51, the point made by the noble Lord, Lord Moynihan, was that an awful lot of parties have to be in line for this to work. In a sense, this has to be more co-operative than many other ventures that this House debates, and to be obviously co-operative and mandate the process in the Bill would be a positive sign to all the parties that have to say yes before it can be a success. I again ask the Minister to reconsider but, with that in mind, I beg leave to withdraw the amendment.
Lord Rosser
“(6) A statutory instrument containing (whether alone or with other provision)—(a) regulations under section 4(2),(b) regulations under section 5(2),(c) regulations under section 7(4),(d) regulations under section 7(6),(e) regulations under section 9,(f) regulations under section 12(7),(g) regulations under section 18,(h) regulations under section 22,(i) regulations under section 34(5),(j) regulations under section 35(3)(a),(k) regulations under section 58,(l) regulations under section 64, or(m) regulations that create offences,is subject to the super-affirmative resolution procedure.(6A) For the purposes of this Act the “super-affirmative procedure” is as follows.(6B) The Minister must lay before Parliament—(a) a draft order; and(b) an explanatory document.(6C) The explanatory document must—(a) introduce and give reasons for the order,(b) explain under which power or powers in this Act the provision contained in the order is made, and(c) give a detailed explanation of provisions included in the order.(6D) The Minister must have regard to—(a) any representations,(b) any resolution of either House of Parliament, and(c) any recommendations of a committee of either House of Parliament charged with reporting on the draft order,made during the 40-day period with regard to the draft order.(6E) If, after the expiry of the 40-day period, the Minister wishes to make an order in the terms of the draft, he must lay before Parliament a statement—(a) stating whether any representations were made under subsection (6D)(a); and(b) if any representations were so made, giving details of them.(6F) The Minister may after the laying of such a statement make an order in the terms of the draft if it is approved by a resolution of each House of Parliament.(6G) However, a committee of either House charged with reporting on the draft order may, at any time after the laying of a statement under subsection (6E) and before the draft order is approved by that House under subsection (6F), recommend under this subsection that no further proceedings be taken in relation to the draft order.(6H) Where a recommendation is made by a committee of either House under subsection (6G) in relation to a draft order, no proceedings may be taken in relation to the draft order in that House under subsection (6F) unless the recommendation is, in the same Session, rejected by resolution of that House. (6I) If, after the expiry of the 40-day period, the Minister wishes to make an order consisting of a version of the draft order with material changes, he must lay before Parliament—(a) a revised draft order; and(b) a statement giving details of—(i) any representations made under subsection (6D)(a); and(ii) the revisions proposed.(6J) The Minister may after laying a revised draft order and statement under subsection (6I) make an order in the terms of the revised draft if it is approved by a resolution of each House of Parliament.(6K) However, a committee of either House charged with reporting on the revised draft order may, at any time after the revised draft order is laid under subsection (6I) and before it is approved by that House under subsection (6J), recommend under this subsection that no further proceedings be taken in relation to the revised draft order.(6L) Where a recommendation is made by a committee of either House under subsection (6K) in relation to a revised draft order, no proceedings may be taken in relation to the revised draft order in that House under subsection (6J) unless the recommendation is, in the same Session, rejected by resolution of that House.(6M) In this section the “40-day period” means the period of 40 days beginning with the day on which the draft order was laid before Parliament under subsection (6B).”
Lord Rosser
I will be brief in moving this amendment. When we discussed the first group, Amendments 40 to 42, which dealt with the issue of the Henry VIII powers, I expressed our concern about the extent to which they appeared to preclude proper parliamentary scrutiny of what is, after all, simply a skeletal Bill, and in respect of regulations that were not even expected to be laid for nearly two years at the earliest.
I do not wish to go through again everything that I said when we discussed the first group of amendments, but obviously the points that I made then are applicable to the reason for putting down this particular amendment. The amendment provides for the use of the super-affirmative procedure rather than, when applicable, the affirmative procedure in the Bill for considering regulations and secondary legislation under what is a skeletal Bill. The amendment is similar to the terms of the provisions of the Legislative and Regulatory Reform Act 2006.
The super-affirmative procedure provides that a Minister must lay a draft order and explanatory document before both Houses and take account of any representations. Motions passed have to be passed by either House, and recommendations of a committee of either House also have to be taken into account by the Minister. After a 40-day period, the draft order must then be passed by both Houses. The procedure also gives the committee scrutinising the order the power to kill it by recommending that no further proceedings be taken, with this recommendation being able to be overturned only by a vote of the whole House.
If the Government and any future Government are to be held in check by Parliament to try to stop any novel or expanded interpretations of minor and consequential amendments—including, of course, under Clause 66, since the Government have declined to move on that—the super-affirmative procedure provides the best route, if the Government prove to be determined to keep Henry VIII powers in the Bill. No Government ought to be concerned about the super-affirmative procedure, rather than the affirmative procedure, in the context of a skeletal Bill, which it is difficult for Parliament to scrutinise effectively, since, as I have said, the crucial regulations will not even be consulted on until next year and will not come before Parliament for nearly two years at the earliest. Through using this procedure, at least the political and statutory consequences of any overenthusiastic government interpretation of what it is appropriate to put in regulations requiring the affirmative procedure can be properly drawn to the attention of both Houses before they decide whether to give their agreement to the secondary legislation in question. I beg to move.
The Deputy Chairman of Committees (Lord Brougham and Vaux) (Con)
I advise the Committee that, if this amendment is agreed to, I cannot call Amendments 46 to 50 inclusive.
Lord McNally
Over the past hour or so we have been wrestling with the same problem: that there is a deep unease in this House—and probably down the corridor as well—that our parliamentary procedures are not flexible enough to deal with much legislation that deals with rapid technological change. I refer to the Data Protection Bill, which we will soon be considering. Over the period of my involvement, in both Houses, in broadcasting and the media, often, 10 or 20 years have passed before a new technological development has arrived—for example, the introduction of radio in the 1920s, and then television, slightly delayed by the war, in the 1940s. Now, we can have technological change within months. How do we get the proper legislative framework in which our judges can work, in a system that is rapidly changing under our feet and before our eyes?
Every Minister that I have heard has always said that SIs give both Houses of Parliament a chance to look at something. To the uninitiated, that seems perfectly reasonable. However, particularly at this end of the building, we know that, if there is any attempt to mess around with SIs, all of a sudden the skirts are lifted and there is shame and outrage at what is going on—the second Chamber ignoring the democratic wishes of the other House, because the legislation will have gone through the Commons on the nod, or with hardly any debate. The noble Lord, Lord Strathclyde, is then rolled out to give one of his opinions. The great thing about the noble Lord is that he has given an opinion in favour of almost any argument regarding change in this House, over his long and infamous career—I have enjoyed serving with him for 11 years of it.
Lord Callanan
I thank all noble Lords who have spoken in this debate, particularly the noble Lord, Lord McNally, who made a powerful contribution. I hope he will agree that many of his points did not relate to the detail of the Bill. I am sure he will accept that the issues of the scrutiny of secondary legislation and the powers of both Houses are way above my pay grade, and probably his too. He made some powerful points and I am sure that the authorities in both places will want to look at them. We will return to those arguments when the withdrawal Bill arrives here. We will have many of the same discussions, loudly and at length, late into the evening.
As we have just discussed, the Government are committed to ensuring robust scrutiny of regulations made under the Bill through proportionate use of the affirmative procedure. This amendment goes further in seeking to impose the so-called super-affirmative procedure for some regulations. This would require the Government to publish a draft order with a detailed explanation of its contents and have due regard to any representations made within a 40-day period. Although I understand the strong desire to have detailed scrutiny of secondary legislation, this is a duplication of effort.
I can assure noble Lords that the first regulations referred to in this clause will be published in draft for consultation prior to being laid before Parliament, providing a transparent, proportionate opportunity for scrutiny. We propose that such draft regulations be accompanied by a full explanation of their intent. This builds on the open approach the Government have taken through the life of this legislation. That includes publishing a draft Bill for consultation and, following the introduction of this Bill, publishing policy scoping notes setting out how we intend to use the powers we are taking.
The amendment would also mean that a committee of either House could make a binding recommendation that no further proceedings with secondary legislation take place, unless that recommendation was rejected by resolution of the House. In a case where a revised draft order is brought back to Parliament for approval, a committee of either House could again make a recommendation that no further proceedings be made in relation to the revised order unless that recommendation is rejected by the House. This would cause huge uncertainty for government, the regulators and, most unfortunately of all, our nascent space industries.
My noble friend Lord Willetts spoke on the first day of Committee about the “lively race” to gain the first mover advantage in small satellite launch from Europe. The introduction of this Bill to Parliament was an important first step to enabling spaceflight activities in the UK and a concrete indication to the industries, investors and the international community that the UK is serious about promoting growth in the space sector. We have then allowed for a period of collaborative and transparent policy development to ensure that we create a regulatory framework that is fit for purpose in what is still an emerging market. However, we cannot wait for ever. Following the consultation I set out above, we will need to be clear when we will bring forward legislation, so that industry can have confidence that UK launch is viable and make appropriate investment decisions. This will not come at the expense of parliamentary scrutiny. The regulations covering the central provisions of suborbital activities, space activities, spaceports and range will all be subject to the affirmative procedure.
It may be helpful if I give more details about the timescale. We currently intend to make delegated legislation through three main statutory instruments: on suborbital activities, space activities, and spaceports and range. It is intended that each of these SIs will set out the licensing requirements and any oversight of operations required to ensure these functions are conducted safely and securely, and to ensure the proper functioning of the regulators in overseeing those functions. These SIs would be subject to the affirmative procedure and therefore allow full parliamentary scrutiny and debate. They would be supplemented with three—
Lord McNally
Perhaps I could clarify this. When we discussed this kind of approach in the past, it was suggested that such SIs would be amendable. Am I assuming that these would be unamendable?
Lord Callanan
Under the current procedure, as I understand it, SIs are not amendable. However, if I am incorrect on that, I will come back to the noble Lord.
As I said, these measures will be supplemented with three statutory instruments subject to the negative procedure on exercise of regulatory functions, appeals and charging. By grouping powers in this way we hope to provide clarity for parliamentarians and potential operators on the regulatory requirements for each type of activity while minimising the amount of duplication between the various instruments.
The noble Lord, Lord Rosser, referred to the timescales. I confirm that we currently intend to lay these SIs from summer 2019—subject, as he said, to government priorities and parliamentary time. This will allow time for more detailed policy development and consultation as well as the drafting of the extensive range of legislation and guidance considered necessary. We envisage holding formal consultations on the draft regulations and the guidance starting in late 2018. We will continue to invite the views of all interested parties—including trade unions, my noble friend Lord Balfe will be pleased to know—throughout the development of the secondary legislation.
Lord Moynihan
It was very welcome that my noble friend just said to the House that noble Lords would be encouraged to participate in the very early stage of the transparent and collaborative consultation phase before the Government came forward with their draft statutory instruments. It is notoriously difficult for many people, not least noble Lords, to know when that consultation phase begins, as we are not necessarily directly notified about that. Could my noble friend ensure that all those who participated in the debate are made aware of those consultations immediately they become available?
Lord Callanan
I will ensure that all noble Lords who participated in these discussions are made aware of the consultations. I will even try to make sure that they reach some parts of Scotland—in which my noble friend seems to have an interest at the moment. With those assurances, I hope that the noble Lord will agree to withdraw the amendment.
Lord Rosser
I thank the Minister for his response and thank the noble Lord, Lord McNally, for his contribution to this short debate. I am sure that the Minister did not anticipate that I would stand here expressing great enthusiasm—
Lord Callanan
May I correct something I said earlier? I am told that, apparently, it is possible to amend an SI.
Lord Rosser
If the Minister has been told that, perhaps he could write to me and to other noble Lords who have spoken to set out clearly the circumstances in which an SI can be amended. Some of us may be slightly surprised by that blanket answer, which apparently covers all SIs—and which, presumably, means that any SI can be amended. I think that that has caught one or two of us slightly on the hop. So we will look forward to the letter from the Minister setting out how a statutory instrument can be amended.
Before the Minister’s interesting intervention just now, I was saying that I am sure that he will not be surprised to hear me say that I am not overenthusiastic about the response he gave. It is clear that the part of the super-affirmative procedure which causes—or appears to cause—the Government the most problem is the bit which gives a committee scrutinising the order the power to kill it by recommending that,
“no further proceedings be taken”,
with that recommendation able to be overturned only by a vote of the whole House. I suppose that that is a good example of how the Government put their own convenience and that of the Executive ahead of proper parliamentary scrutiny.
The Bill denies us proper parliamentary scrutiny. It is a skeletal Bill; the Minister has never sought to deny that. The consultation on the regulations does not even start until towards the end of next year, and they will not be laid at the earliest until the summer of 2019—and then, interestingly enough, only if they fit in with government priorities, despite the fact that the Minister and the Government have gone to great lengths to tell us that we need to pass the Bill now to provide certainty to the industry. Yet now the industry is told that the regulations may not appear in the summer of 2019 if by then the Government have decided that it is no longer a priority or that there is no parliamentary time to do it.
The reason we are in this difficulty over lack of parliamentary scrutiny is, as I say, because the Government have decided to bring the Bill forward so far in advance of the quite crucial regulations. We all know why: it is because they have a very bare legislative programme and had to think of something to fill the gap. They chose the Bill and were quite happy to see a skeletal Bill, and then to expect all of us to accept that there would be no proper parliamentary scrutiny because it is a skeletal Bill of that sort.
I am not entirely surprised by the Minister’s response. He was not overenthusiastic about the concerns raised about the Henry VIII powers. Clearly, as far as the Government are concerned, anything that will either provide proper parliamentary scrutiny of the Bill or take away some of the draconian powers contained in it are things that at this stage—I hope that the words “at this stage” have some significance—the Government are not prepared to countenance. We have Report to come and I know that the Minister is prepared to have discussions with us and, I am sure, with the Liberal Democrats and other parties. I hope that he will reflect on the very strong feelings expressed today about the powers in the Bill and that he will come forward with at least some proposals to mitigate and address the concerns that have been expressed. In the meantime, I beg leave to withdraw my amendment.