Tuesday 14th November 2017
(7 years, 1 month ago)
Lords ChamberSpace Industry Act 2018 View all Space Industry Act 2018 Debates Read Hansard Text Amendment Paper: HL Bill 7-R-I(Rev) Revised marshalled list for Report (PDF, 90KB) - (13 Nov 2017)
The Parliamentary Under-Secretary of State, Department for Transport (Baroness Sugg) (Con)
My Lords, the UK space industry is a global success story. I am grateful for the productive debate we had in Committee, which will ensure the Bill puts this country at the forefront of new space services.
The Government continue to invest in the success of the UK space sector—for example, we recently invested more than £100 million in new satellite test facilities at Harwell, and manufacture and test facilities for rocket engines at Westcott in Buckinghamshire. As we discussed, another measure of our support to the UK space sector will be through our negotiations with the EU on future collaboration on the EU space programmes. The UK has played a major part in developing the main EU space programmes, Galileo and Copernicus, which have supported the rapid growth of the UK space sector and contributed directly to our prosperity and security. We are working to ensure we get the best deal with the EU to support strong growth in the sector. Last month, the Government published a science and innovation discussion paper and an external security discussion paper. Both set out the Government’s wish to discuss options for future arrangements in the EU space programmes.
My noble friend Lord Moynihan asked about continued support for the space industry. The European Space Agency programmes will continue to play an important role in delivering the UK national space objectives and, in December last year, the UK negotiated an investment of more than €1.4 billion over the next five years in ESA space initiatives. This sustained investment, alongside our industrial strategy, will ensure that we build on the strengths of the UK’s growing space industry. The UK’s membership of the European Space Agency will not be affected by the UK leaving the EU.
The Government hold a mix of qualitative and quantitative analysis of the impact of leaving the EU on sectors of the UK economy, including the UK’s space industry. This is contained in a range of documents developed at different times since the referendum. The analysis in this area is constantly evolving and being updated based on our regular discussions with industry and our negotiations with the EU. As the Secretary of State for Exiting the EU said in his Written Statement on 7 November, the intention is to provide this information to the Exiting the EU Select Committee as soon as possible, and within three weeks of the date of that Statement.
My noble friend Lord Callanan has confirmed to the House that we anticipate sharing the same information on the same basis with the Lords EU Committee as with the House of Commons Select Committee, subject to our being able to agree the terms of that disclosure. Given that this evidence will be published in the coming weeks, I ask the noble Lord to withdraw Amendment 1.
Lord McNally
My Lords, I thank the Minister for that reply. We look forward to this information being gathered together into one clear document, as at the moment it is scattered among many documents. I am sure that not only the EU Committee but the whole House will read it with great interest.
This is not a hostile amendment but one that genuinely searches after facts. A generation of us—not including the Minister—remember our last great adventure into the space industry with Blue Streak and Black Arrow over 40 years ago. I also exclude my noble friend on these Benches from that. I had better not go any further: I remember Blue Streak and Black Arrow and finding out that this was too expensive a game for us to go it alone. As we take forward what is still a very exciting industry—the Minister herself announced a number of new facets—we need to ensure that we are at its cutting edge and do not miss this chance. In that spirit, I beg leave to withdraw the amendment.
Baroness Randerson (LD)
My Lords, I was pleased to be able to add my name to Amendment 2. Before I speak to it, I welcome the Government’s Amendment 9, because it adds to Schedule 1 both noise and emissions as factors that should be taken into account when granting a licence. That is a step forward. However, it is still a narrow interpretation of the problems that I anticipate local communities and the slightly wider area might encounter. If these spaceports are a success—across the House we very much hope that they will be—they will have an impact on local communities and on the environment that those communities currently enjoy. These are by definition remote and peaceful places at this moment, and they will be significantly less remote and less peaceful after the development of a spaceport.
Other potential issues include the following. First, there is the issue of visual amenity in what could well be beautiful areas. These will be large installations and will not easily blend into the landscape. Secondly, there is the impact on local roads. I do not know the situation in Scotland, but I know that the roads in Wales are hardly even small motorways in that area. We are talking about moving large, wide loads across the country and along roads, often moving them slowly on to the site, and that will be disruptive. I remember how the noble Lord, Lord Tunnicliffe, in a memorable phrase, described a rocket as a controlled explosion. There is also potentially air pollution, as well as noise pollution.
Finally, I point to the basics of many of the issues and problems arising from planning applications for large or even small developments. Clearing a site to establish a spaceport could well impact on existing wildlife, and the ongoing use of the spaceport could, for example, disturb nesting birds.
I do not want to be a doom-monger but we need to be realistic. The enthusiasm of the Welsh and Scottish Governments may not be shared by local people. Any of us here who have been local councillors— I was a councillor for 17 years, albeit a long time ago—know that what I have outlined are routine planning issues that, appropriately, get in the way of wholesale development that does not take into consideration the amenities of local people and the environment beyond. Spaceports should not be exempt from the rules, and that needs to be flagged in this Bill.
Baroness Sugg
My Lords, I recognise noble Lords’ concerns that there are currently no specific provisions in the Bill regarding the environmental impacts of spaceports and spaceflight activities on local communities, particularly in relation to noise and emissions. However, Clause 2 requires the regulator to take into account the environmental objectives set by the Government. I know that some noble Lords have raised concerns that future objectives cannot be predicted—indeed, the noble Lord, Lord Rosser, raised that again today—but the inclusion of that requirement was intended to promote environmental protection, as the regulator will have to take account of existing guidance, such as Defra’s air quality plan.
As noble Lords will be aware, there already exists a comprehensive body of environmental and planning legislation that spaceports and spaceflight operators will need to comply with independently of the requirements under the Bill. For example, an environmental impact assessment may be required for airport-related development under Schedule 2 to the environmental impact assessment regulations where it is,
“likely to have significant effects on the environment by virtue of factors such as its nature, size or location”.
In such cases, the local planning authority will be obliged to scrutinise the environmental impact, taking into account the concerns of local communities such as the noble Baroness, Lady Randerson, has just raised. An environmental assessment will be required as part of any airspace changes.
However, there might be circumstances where a particular activity could be carried out without the need for an environmental impact assessment under planning and airspace rules. The purpose of Amendment 9 is to put on the face of the Bill a licence condition that the regulator could impose—for example, where an environmental impact or other assessment has not already been undertaken.
I appreciate that this amendment does not impose a mandatory requirement for the spaceport or spaceflight operator to make an environmental assessment; nor does it require the regulator to take into account environmental and local impacts, as Amendment 2 seeks to do. However, it makes very clear the Government’s intention that some form of assessment of noise and emissions should take place, and it does this without creating requirements in the Bill that may duplicate existing requirements to carry out environmental assessments under other enactments.
I hope that I have reassured noble Lords of the Government’s intention of ensuring that environmental impacts are assessed, either as part of the planning process or as a condition of a licence under the Bill. However, I am aware that your Lordships do not think that this goes far enough, as they have made clear today—the noble Baroness, Lady Randerson, made a very fair point about roads and road access. Therefore, I assure the House that the Government are considering introducing in the other place a further amendment that will require spaceport and spaceflight applicants to submit a noise and emissions assessment, and that regulators take this into account when deciding the licence application. I therefore ask the noble Lord to withdraw his amendment.
Lord Rosser
I thank the Minister for her reply but perhaps I may inquire a bit further. Government Amendment 9 provides that a licence under this legislation can include a condition that an assessment must be done of the impact that noise and emissions caused by the activities being licensed will have on local communities. If that amendment is agreed—we are certainly happy with it—it will then be included in the Bill when it goes to the Commons. I am not entirely clear from what the Minister has said what the Government are still considering as an amendment they might bring forward in the Commons. Will there be an amendment referring to the wider environmental duty and the impact on local communities, or is that not what the Minister was saying? I am not clear what the Government are considering bringing forward in the Commons.
Baroness Sugg
The amendment we are considering taking forward is requiring spaceports and applicants to carry out the environmental assessment, which will of course take into account the effect on the local community, and requiring regulators to take that into account.
Lord Rosser
Perhaps I did not understand the matter properly first time round, but in the light of that clarification from the Minister, I beg leave to withdraw the amendment.
Baroness Sugg
“( ) any space debris mitigation guidelines issued by an international organisation in which the government of the United Kingdom is represented.”
Baroness Sugg
My Lords, Clause 2 sets out the overarching duties of the regulator in carrying out its functions under the Bill. Subsection (1) establishes the duty of securing public safety as the regulator’s priority, while subsection (2) lists the other factors that the regulator must take into account while carrying out its functions. There is no hierarchy in the matters listed in subsection (2).
Amendments 3 and 8 to subsection (2) and Schedule 1 are in response to the helpful debate on space debris on the first day of Committee. In relation to an amendment tabled to Clause 12, the noble Lord, Lord McNally, highlighted the very real risks and challenges posed by space debris. The noble Baroness, Lady Randerson, recognised the work of the Inter-Agency Space Debris Coordination Committee—the IADC—of which the UK is a member, which has issued guidelines in this area. My noble friend Lord Willetts acknowledged the UK’s expertise in this area.
I would like to take this opportunity to reiterate the points made by my noble friend Lord Callanan during this debate. The UK Space Agency already considers matters relating to space debris and the guidelines issued by the IADC, and is an active member in carrying out its regulatory function under the Outer Space Act 1986. Through the IADC, the UK Government remain fully committed to implementing and influencing best practice to protect the space environment. Furthermore, the Bill enables regulators to include conditions within licences that relate to the disposal of a satellite at the end of its operational life and compliance with debris mitigation guidelines.
In the light of the Government’s commitment to the IADC and following further reflection on the points raised in Committee, we are tabling this amendment, which would place a requirement in the Bill for a regulator to consider space debris mitigation guidelines when exercising its functions. These guidelines are issued by an international organisation to which the UK is represented. This wording will cover international bodies, including the IADC, and the International Organisation for Standardization’s orbital debris co-ordination working group, as mentioned by the noble Baroness, Lady Randerson, in Committee. I beg to move Amendment 3.
Lord Rosser
The noble Lord, Lord McNally, spoke eloquently in Committee on the issue of his party and pavement politics, before referring to his concerns about space debris and the need to bring it back safely—although he did not say whether he was looking for weekly or fortnightly collections. If the noble Lord, Lord McNally, considers that the Government’s amendments address the legitimate concerns he raised, they will of course have our support.
Lord McNally
My Lords, I welcome the amendments. They are a first step in the right direction. Although I may have rather light-heartedly introduced the issue at the last stage, we have only to look at what we have done to the sea and to Everest to see how easily important places can be polluted. For that reason, it is important that this is on the agenda.
As was indicated in our last debate, work is being done about this problem by British technology companies. Although it may be the less glamorous end of space travel, clearing up space debris may well be another cutting-edge area that we can exploit as this expands.
The IADC is a representative body. Its membership includes all the big players—Russia, the United States, China, ourselves, the European Space Agency, India, Italy, France, Japan, Ukraine. It is the right body to take these matters forward and the amendment is welcome.
Baroness Sugg
I thank noble Lords for their support for the amendment, particularly the noble Lord, Lord McNally, who raised this issue in Committee and has put his name to the amendment.
Lord Fox (LD)
My Lords, names of Members from our Benches are not attached to these amendments, but we would like to associate ourselves with all four of them. I want to say a few words about safety because it is obviously not in the industry’s interest to operate unsafely; in fact, quite the opposite. It would be a way of hastening its end. So it is not that the industry will set out to operate in a cavalier manner, and that is not what these amendments imply. From my experience of working in industries that have an inherent risk but are not necessarily as risky as the space industry, the greater prominence that safety is given in their operations at every level right up to senior management and in terms of the supervision of organisations, the more likely it is that they will be inherently safe. You can rely on processes and people on the ground to operate safely because of course it is in their interests to do so, but it is always more successful when safety is elevated to the highest possible level. It is with that in mind that we support these amendments.
Baroness Sugg
I thank noble Lords for their comments on Clauses 9 and 10, given their central importance to the Bill. In consultation with the Health and Safety Executive, I wrote to the noble Lord, Lord Tunnicliffe, to address the points he raised on the first day in Committee. Following that letter, I would like to take the opportunity to explain further the role of the Health and Safety Executive in regulating space flight activities under the Space Industry Bill.
Clause 9 imposes one of the key requirements of the Bill that a regulator cannot grant a licence for spaceflight activities unless satisfied that the operator has carried out an assessment of the risks to the health and safety of persons taking part in spaceflight activities and that the operator has taken steps to ensure that risks to all other persons is as low as reasonably practicable. Furthermore, Clause 9(4)(b) means that even after all steps have been taken to reduce risk to as low as is reasonably practicable, spaceflight will not be allowed where the risk to public health and safety is unacceptable. The Bill places the onus on the regulator to be satisfied that risks are as low as reasonably practicable and that they are acceptable, but the operator must assess the risks and manage them.
The provisions in the Bill have been developed in full collaboration with the Health and Safety Executive to ensure that they align with existing UK health and safety principles on the management of risks. I should like to recap that under this Bill, the Secretary of State is the default spaceflight regulatory authority. The UK Space Agency will perform regulatory functions on the Secretary of State’s behalf, including regulating the procurement of satellite launches from other countries as well as satellite operations from the UK. The UK Space Agency will also regulate all vertically launched rockets covered under this Bill and all space activities. Finally, the UK Space Agency will license and regulate spaceports capable of vertical launch and range control services for launch to orbit.
It is our intention to use Clause 15 to appoint the Civil Aviation Authority as a spaceflight regulator for suborbital spaceplanes and spaceports capable of horizontal launch. The Government’s approach will enable us to build on the existing experience and expertise of the two organisations. I am confident that these bodies will have the capability to evaluate risk assessments and assess whether the risks have been reduced to as low as is reasonably practicable and whether they are acceptable. In this, the bodies will be assisted by the Health and Safety Executive.
I should clarify that we do not intend to appoint the Health and Safety Executive as a regulator under the Bill. This is because it is not a specialist transport, aviation or space regulator and has no experience or expertise in flight safety, space launches or air navigation. However, it is already a regulator for health and safety at work under current health and safety legislation. Accordingly, it is designated as a qualifying health and safety authority under Clause 20 and may be called upon to provide specified advice or assistance in connection with the regulator’s functions relating to safety.
Independently of the Bill, the Health and Safety at Work, etc Act 1974 and associated legislation will apply to spaceports and spaceflight activities as they would to any other workplace, while the Health and Safety Executive would retain lead responsibility for the regulation of safety on the ground. New major hazard sites such as spaceports would also require planning consent from the appropriate planning authority, and the Health and Safety Executive would act as a statutory consultee to the appropriate planning authorities.
However, the UK Space Agency or Civil Aviation Authority will retain responsibility for licensing the spaceport. This aligns with the approach under the Civil Aviation Act 1982 and the Air Navigation Order 2016. Under these provisions, the Civil Aviation Authority has overall responsibility for aviation safety. The divisions of responsibility between the CAA and the Health and Safety Executive are set out in a memorandum of understanding. We anticipate that the spaceflight regulators and the Health and Safety Executive will similarly set out the division of responsibilities.
I emphasise that although it is our intention that there be two spaceflight regulators, it is vital for accountability and safety that for any particular licence application under the Bill, there should be a single regulator responsible for deciding that application. Noble Lords raised that issue today and in Committee. In making its licensing decision, the UK Space Agency may consult the CAA—and vice versa—but that decision will rest with one body in each case.
Giving the Health and Safety Executive an additional specific role—certifying the adequacy of the safety arrangements relating to persons not taking part in spaceflight activities or for public safety in spaceports—would confuse roles and responsibilities for licensing spaceflight and associated activities. The Health and Safety Executive does not carry out this function of certification under any other legislation and does not wish to do so under this one.
I hope I have reassured noble Lords that our proposed approach is consistent with existing health and safety practice and reflects the view of the Health and Safety Executive. I acknowledge the sad history of space activity, as highlighted by the noble Lord, Lord Tunnicliffe; I assure him that safety is at the heart of the Bill. I ask the noble Lord to withdraw his amendment.
Baroness Sugg
Baroness Sugg
“( ) The regulator may consent to a licence being transferred to a person (“the transferee”) only if satisfied that—(a) consenting to the transfer—(i) will not impair the national security of the United Kingdom;(ii) is consistent with the international obligations of the United Kingdom;(iii) is not contrary to the national interest;(b) the transferee has the financial and technical resources to do the things authorised by the licence, and is otherwise a fit and proper person to do them;(c) the persons who are expected to do, on the transferee’s behalf, any of the things authorised by the licence are fit and proper persons to do them.”
Baroness Sugg
My Lords, Clause 14 enables a licensee to transfer their licence to another party, provided the regulator has given written consent. The provision enables a new body or company to take over the licence without starting a licence application completely afresh. In Committee the noble Lords, Lord Rosser and Lord Tunnicliffe, tabled an amendment seeking to clarify that the eligibility provisions in Clause 8(3) would also apply to the person to whom a licence is being transferred under Clause 14.
It is helpful to briefly recap what Clause 8 requires before a licence can be granted. Under subsection (2), the regulator must be satisfied that granting a licence will not impair national security, is consistent with the UK’s international obligations and would not be contrary to our national interest. Subsection (3) then sets certain eligibility criteria for licence holders, with which the regulator must be satisfied before granting a licence. The criteria ensure that a licence holder has the necessary financial and technical resources to do the things authorised by the licence and that both the licence holder and employees and agents acting on the licence holder’s behalf are fit and proper persons to do the things authorised by the licence.
It has always been the Government’s intention that the regulator will need to be satisfied that the tests set out in Clauses 8(2) and 8(3) would apply to the transfer of a licence under Clause 14, as it does to the initial grant of a licence. The amendment makes the Government’s intentions clear in the Bill and puts this beyond any doubt.
I thank noble Lords for their original amendment. I hope they will welcome the fact that we have reflected and that the amendment goes further than previously proposed. I beg to move.
Lord Rosser
I thank the Minister for the Government’s Amendment 10, which, as she said, addresses an issue we raised in Committee and will put in the Bill that the regulator may consent to a licence being transferred only if the transfer and the person to whom it is being transferred meet the same tests as laid out for the granting of the licence in Clause 8. In Committee I asked whether the consent of the Secretary of State would also be required for a licence to be transferred, bearing in mind that under Clause 8(4) the consent of the Secretary of State is required for the granting of a licence. The noble Lord, Lord Callanan, the then Minister, said he would reflect on that and come back to me. He may have done so, but if he has I am afraid I have forgotten what he said. Is the Minister able to say now or later what the answer is to that question?
Baroness Sugg
Both the regulator and the Secretary of State would need to be satisfied that the transfer of a licence was appropriate.
Lord McNally
My Lords, this is a good example of the Lords’ way of doing things in action. The Labour Front Bench noticed what they thought was a weakness; the Minister said he would go away and reflect. The Government have reflected and come back with a solution that makes the Bill better.
Lord Fox
The nature of this work, certainly in the early stages, could be quite lumpy. In earlier discussions —at Second Reading, I think—the Minister talked about perhaps only 12 launches a year. There could be moments of great intensity of activity followed by no activity and therefore no income. How will the regulator maintain this level of expertise through what could be feast and famine during that process?
Baroness Sugg
My Lords, I thank the noble Baroness, Lady Randerson, for her comments on Clause 15 and the role of the CAA. As we know, the aviation sector is facing many challenges at the moment, particularly with the introduction of new technologies such as drones and spaceflight, but I can reassure noble Lords that the CAA is in strong position to deal with those challenges.
As the noble Baroness has told us, the chief executive of the CAA has written to her confirming this and, as he explained in the letter, the CAA already has already established a dedicated space team. That team started in 2012 and since then has grown in size and experience, and has worked closely to develop the Space Industry Bill. The team is building on its aviation expertise in areas such as airports and airspace to develop the capability to regulate spaceports and suborbital activities.
The noble Baroness asked what international conversations the CAA might have had. It has established good working relationships with other countries. The UK Space Agency has been building on its relationship with the United States Federal Aviation Administration, drawing on the United States’ vast experience in overseeing flight operations.
The department provides sufficient resource to ensure sufficient delivery in this area. The moneys will vary depending on the nature of the work at different times— for example, on air space consideration or international comparisons—so I am not able to give a figure today. The noble Baroness asked about funding. The Civil Aviation Authority will eventually be able to recover its costs directly from industry. Until that point, the Department for Transport will continue to provide funding.
We are confident that the CAA will have the necessary resources and the appropriate expertise to regulate the new sector. I hope that the letter and my words give the noble Baroness the necessary reassurance regarding the capacity of the CAA to regulate the activities alongside its existing aviation functions. I ask the noble Baroness to withdraw Amendment 11.
Baroness Randerson
My Lords, on the basis that the CAA appears to be satisfied with its situation, I will, of course, not pursue this any further at this stage, but I would be grateful if the Minister looked again at the very specific questions I asked and, one way or another, passed those small details to me. I am interested in understanding a little better the process that will be involved. With that, I am happy to withdraw the amendment.
Baroness Sugg
Baroness Sugg
My Lords, the amendments in this group are minor and technical amendments which are required to address drafting issues in the Bill.
First, I turn to Amendments 12, 13, 29, 30 and 38. Currently, the definition of “enactment” in Clause 68 provides that it includes an enactment contained in Northern Ireland legislation. The Interpretation Act 1978 provides in Section 5 and Schedule 1 that unless the contrary intention appears, the term “enactment” used in legislation does not include Acts of the Scottish Parliament or legislation made under those Acts. As it is the policy intention that references to “enactment” in the Bill should cover legislation made throughout the United Kingdom, we propose to amend the clause so that the term “enactment”, where used, refers to secondary legislation and Scottish and Welsh legislation, as well as retaining the reference to Northern Ireland. I reassure noble Lords that official conversations have taken place with Scotland, Wales and Northern Ireland and all are content with the amendments the Government are tabling on Report. There are a number of consequential amendments to Clause 51 and Schedule 5 to replace uses of “enactment”. Those references are to particular Acts of the UK Parliament rather than to legislation in general, so it is not appropriate for the definition of “enactment” to apply in those cases.
Amendment 39 ensures that English, Welsh and Northern Ireland partnerships can be prosecuted in Scotland. Currently, Clause 57, which deals with offences by partnerships, only extends to England, Wales and Northern Ireland. This is set out in the full heading of Clause 57, and Scotland is explicitly excluded from the extent of the clause in Clause 70(2). The Government initially considered that Clause 57 did not need to extend to Scotland because partnerships are treated differently in Scots law. Existing legislation already makes similar provision for Scotland to that in Clause 57; Clause 70 was drafted accordingly. However, it has since come to light that while there is no need for the Bill to make provision for Scottish partnerships, the current draft presents the risk that there would be no power to prosecute an English, Welsh or Northern Ireland partnership in Scotland. Since it is the policy intention that these prosecutions should be within the power of the Scottish courts, we propose to delete Clause 70(2).
Finally, Amendment 40 includes an additional provision in the Bill to allow this legislation to be extended to Crown dependencies and overseas territories, as modified, by way of an Order in Council. The Bill has the potential to bring new business opportunities in an expanding space market, bringing in new revenue, jobs, training opportunities and other benefits to local areas. It is an important principle that the potential benefits of the Bill are accessible across not just across the United Kingdom but in our Crown dependencies and overseas territories. Amendment 40 will allow the Government of a Crown dependency or overseas territory to utilise the regulatory framework the Bill creates for spaceflight activities and to develop a spaceport if they would like to do so. I beg to move Amendment 12.
Lord Rosser
May I ask a bit more about government Amendment 40 in relation to Crown dependencies and overseas territories? As I understand it, this is a fairly standard clause in Acts of Parliament, but perhaps the Minister can confirm whether that is so or it is something of a rarity.
My understanding of the Minister’s concluding comments is that a Crown dependency or overseas territory, if it wished, could seek to have a spaceport on its territory. However, would government Amendment 40 be activated, in the sense of seeking the Order in Council, by the British Government or could it be activated only if so requested by a UK Crown dependency or overseas territory itself, or could it indeed be activated at the request of a company or even another country? What would be the criteria for determining whether or not the provisions of the Act should be extended as provided for in government Amendment 40?
Would the provisions of the Act be so extended under the terms of government Amendment 40 if it was felt that it worsened the prospects of the development and expansion of the UK space industry in this country—even in Prestwick? If the provisions were so extended, could companies from any country in the world establish spaceflight facilities in a UK Crown dependency or overseas territory, or would it be restricted to British companies, at least as the lead company? Finally, could we have an assurance that extending the provisions of the Act to the Channel Islands, the Isle of Man or any British overseas territory would not give any companies, whether private or state-owned, any tax advantages, particularly in the form of lower tax, compared to the tax regime that would apply to a space industry company operating under the Act’s provisions in this country?
Lord Fox
The noble Lord has stolen many of my lines. There seem to be a lot of loose ends here. I reiterate his question about how much of the Bill applies to a Crown dependency in the event that it builds a spaceport. Are we looking just at the right to do it, or are all the other provisions of the Bill in place in a Crown dependency situation? The point that the noble Lord made very well is: are we in danger of allowing people to set up low-cost competitors in an industry that we are hoping to run from the United Kingdom mainland?
Baroness Sugg
I will try to answer as many of those questions as I can. Yes, this is a standard clause. It was not included originally because we wanted to conduct a consultation with Crown dependencies and overseas territories, which we completed over the summer. That is now done and we are including it as a government amendment.
On who can enact this, it would be done at the request of the Crown dependency or overseas territory, which would then be subject to all the legislation in the Act. But ultimately the creation of a spaceport is going to be a commercial decision, so the UK Government would not take an active role in deciding where it would be. Currently we are not aware of any Crown dependencies or overseas territories that wish to undertake this activity.
Baroness Sugg
That money is available to people who are currently putting together a case to create a spaceport. As I said, there is currently no interest from overseas territories or Crown dependencies, so that money would not be used by them.
On the tax regime, I am afraid that I do not have the full answer. I will have to get back to the noble Lord.
Lord Rosser
I appreciate that this has come up suddenly but I made one or two other points that I do not think the Minister has responded to. For example, would the provision be extended to companies from any country in the world, or would it be restricted to British companies? Could it be agreed, only to find that it is to the detriment of companies wanting to set up spaceflight facilities or spaceports in this country?
Baroness Sugg
Any international company could request spaceflight activity within any of the ports but, as I say, it will ultimately be a commercial decision as to whether these activities take place. We would not play an active role in that.
Lord Rosser
Is that really consistent with a Bill that is designed to promote the industry in this country?
Baroness Sugg
The Bill is designed to promote the industry in this country and that is what we are focusing on. The addition of this provision just allows that in the future, should there be any interest, the Crown dependencies and overseas territories could take on the legislation framework and develop the activity.
Baroness Sugg
Lord Fox
My Lords, I once again associate myself fully with the comments that have just been made. I am still struggling with the “anything necessary” line. Having defended those words so spiritedly in Committee, the noble Lord, Lord Callanan, is now escaping. Are we looking at enforcement at an economic level or at a national security level? I suspect there are already the necessary powers, were this to be a national security issue. There are sufficient powers to act with sufficient speed, with or without judicial oversight, in the event that it was a national security emergency that needed to be dealt with quickly. Therefore, it seems that we are looking at a commercial emergency—such a thing exists—and on that basis it seems to me that the points raised by the noble Lord, Lord Rosser, are entirely reasonable and we should not invest these draconian powers because we do not need to in dealing with that kind of issue.
Baroness Sugg
I thank noble Lords for raising the question of emergency powers again. Since their interventions in Committee, we have been reflecting on this provision. I will do my best not to make all the same arguments that we made in Committee.
This amendment seeks to require that an enforcement authorisation issued by the Secretary of State is evaluated by a justice of the peace within 48 hours after the 48 hours that the authorisation has been in force. The enforcement authorisation issued under Clause 32 may be issued only under certain circumstances, which do not include a commercial emergency. They are: when there is an urgent case to act to protect national security; to ensure compliance with international obligations; or to protect people’s health and safety. The authorisation must be issued in writing to a named person and specify the action authorised to be taken. The authorisation itself will remain in force for 48 hours only. This reflects the urgent nature of the action considered necessary and requires it to be taken within a short period.
We referred to similar powers of other regulators in Committee, and we have tried to look across other legislation to ensure that we have the right balance here. Some of these powers are not subject to any review once they have been exercised. There is a precedent for this approach in the Consumer Rights Act 2015, which allows officers to enter premises without a warrant where it is suspected that there has been a breach of legislation, where giving notice would defeat the purpose of the entry, and where it is not practicable to give notice or where the entry is for the purpose of surveillance. The reasons for which an authorisation under Clause 32 may be issued are strictly related to emergency situations, and therefore are more restricted than the circumstances in the Consumer Rights Act. I should also clarify that improper use of the power by an appointed person under Clause 32 would be subject to judicial review, so it can be challenged if necessary.
The noble Lord, Lord Fox, brought to noble Lords’ attention the fact that warrants issued under the Investigatory Powers Act 2016 are subject to approval by a judicial commissioner within three working days of the warrant being issued. This is appropriate because these warrants remain in place for five days and relate to the sensitive practices of targeted interception, examination of the contents of communications and international assistance in such matters. This is not comparable to either the power under Clause 32 or the approach proposed by this amendment. Our advice from cross-Whitehall consultations is that there is no known precedent of a justice of the peace conducting an evaluation of an emergency power once it has been exercised.
We are also not clear what purpose evaluation by a justice of the peace would serve, as the order would be spent and the specified action taken by the time of the evaluation. It is also not clear what, if any, follow-up action would be available. I am afraid I cannot address the noble Lord’s concerns directly but we are continuing to reflect and will keep working with colleagues across Whitehall to ensure that we get a proportionate set of enforcement powers in the Bill, so that we can undertake spaceflight activities safely but also with regard to our national security and international obligations. I ask the noble Lord to withdraw his amendment.
Lord Rosser
I thank the Minister for her reply and thank the noble Lord, Lord Fox, for his contribution to the debate. I find it difficult when a Government say that they cannot understand what purpose a post hoc review of their action, or of a decision by the Secretary of State to issue the enforcement authorisation and whether it has been abused, would have. Clearly, if it had been abused, that would become known. Although I agree you cannot rectify the abuse that has already occurred, the thought that it might be drawn to public attention had it taken place would act as a deterrent, certainly in the future if it happened again. So I am puzzled that the Government do not apparently understand what the purpose would be of the review suggested in the amendment and, indeed, suggested by the committee concerned.
When the Minister says that the Government are still reflecting on this, once again I am afraid I am not entirely clear what exactly they are still reflecting on, bearing in mind that the Minister has not held out—at least, that is how it appears to me—any prospect at any later stage during the Bill’s proceedings of the Government perhaps coming forward with a proposal of their own if they do not like the look of the proposal in this amendment. When the Minister indicates that the Government are still reflecting on this, are they reflecting in the sense that they may come forward at some later stage in the Bill’s progress through Parliament with a proposal of their own that deals with, or at least addresses, the issues raised in the amendment?
Baroness Sugg
As I say, we are still looking at some type of post hoc review. We are developing the options for that and trying to understand what the implications would be. That work is ongoing.
Lord Rosser
In the light of what the Minister has said about looking at a post hoc review, I am happy to withdraw the amendment.
Lord McNally
My Lords, listening to what the noble Lord, Lord Tunnicliffe, said, and the earlier debate about safety, one thing that occurred to me was seeing the newsreel footage of the crash of the “Hindenburg”, just before the Second World War—a crash that virtually ended the airship as a commercial prospect. That is a useful reminder that what may be seen as the next new thing could be disastrously impacted.
The simple message, which seems so obvious, is that if entrepreneurs considering coming into the industry have unlimited liability, they will not come in. If there is no cover—particularly, as the noble Lord, Lord Tunnicliffe, emphasised, for third parties—that would be totally unacceptable. The problem has been spelled out; the Government should face up to those contradictions.
Baroness Sugg
My Lords, Amendment 15 relates to the liability provisions in the Bill. As my noble friend Lord Callanan outlined in Committee, these provisions are vital but complex.
I would just like to clarify a point my noble friend Lord Callanan made in Committee. He said that,
“the position under the Bill is exactly the same as that in the aviation industry—that operators have an unlimited liability to indemnify government”.—[Official Report, 16/10/17; col. 434.]
While it is correct that under aviation law an operator holds an unlimited liability, an operator is not required to indemnify the Government for third-party claims brought against it.
The requirement to indemnify the Government arises in this Bill and in the Outer Space Act 1986 only because under UN space treaties the UK Government are ultimately liable for the space activities of their nationals. Operators are therefore required to indemnify the Government for any claims brought against them as a consequence of their licensed activities. I hope that the House finds this clarification helpful.
With this complexity in mind, I should like to provide further background before turning to the amendment. Clause 33(5) provides a power to make regulations that enable a regulator to specify in a licence a cap on an operator’s liability arising out of its spaceflight activities to prescribed persons or in prescribed circumstances. These persons and circumstances would be set out in regulations, but we envisage that a cap, if imposed, would be on an operator’s liability to the uninvolved general public who suffer injury or damage as a result of spaceflight activities. The uninvolved general public will have a strict liability claim against the operator.
Further work needs to be done to check the appropriateness of capping an operator’s third-party liability. We plan to issue a call for evidence on issues relating to insurance and liabilities in early 2018, following Royal Assent to the Bill.
As this liability can be capped, Clause 34(3) provides the Secretary of State with a power to indemnify a claimant in the event of injury or damage caused by spaceflight activities. This means that the Government can pay compensation to the uninvolved general public in situations where injury or damage exceeds the operator’s capped liability amount.
As we have already emphasised, we are trying to put safety at the heart of the Bill. It is designed to ensure that spaceflight activity is as safe as possible in the first place, which will minimise liability arising. But, as noble Lords have pointed out, injury or damage could arise, and if it does, it is the Government’s policy that the uninvolved general public should have easy recourse to compensation. This policy does not and should not change if an operator has a capped liability or, for example, becomes insolvent and cannot meet all its claims.
I therefore understand the concerns that have led to this amendment which seeks to ensure that the Secretary of State has to pay compensation above the capped amount to the uninvolved general public. The liability provisions in the Bill are complex and we need to ensure that amendments in this area are appropriate and achieve what they are set out to do. We are working on this and look forward to tabling an amendment similar to this one in the other place, which I hope will allay the concerns shared by noble Lords that have led to this amendment. With that in mind, I ask the noble Lord to withdraw his amendment.
Lord McNally
My Lords, this takes forward a recommendation from the Science and Technology Committee in the other place that “gross negligence” should be on the face of the Bill, and that is what the amendment would do.
Baroness Sugg
I thank the noble Lord, Lord McNally, for tabling this amendment, following a similar amendment that he tabled in Committee. We discussed Clause 36 in relation to the protection it affords a regulator. Having considered the persuasive points made by the noble Lord, and others, after reflecting on the wording of this new amendment, we agree that to achieve the right balance in this clause the regulator protection should not apply in cases of gross negligence, and we accept the amendment as tabled.
Lord Deben (Con)
I look forward to my noble friend’s reply and take this opportunity to say how exemplary the Government’s response has been on a range of issues that we have raised. If they responded in this way on a lot of other issues it would be very much easier for all of us. My noble friend has indicated in her delightful and charming way that she thought these amendments were worth while. Can we extend such a response more widely so that we do not have to have acrimonious discussions and then find ourselves with an amendment which is more or less similar to what has been proposed before? This is a very good example of that. People should always say thank you, and I do so.
Baroness Sugg
I thank my noble friend for his kind comments. I hope to continue in my role as a transport Minister in an unacrimonious way. I am afraid that is as far as I can go: that is my brief.
During Committee, I was given the chance to talk about the work that the UK Space Agency is doing to improve the current licensing regime. I apologise again if this is a case of Groundhog Day: I need to reiterate that as I am afraid we still do not believe that the noble Lord’s amendment is necessary. We outlined the “traffic light system” that the agency is working on and work that was being undertaken on a policy model for insurance for constellations of satellites following feedback that insuring each satellite for a set level of insurance is prohibitively expensive. We think that the traffic light system and the insurance requirements for small satellites and constellations will do the job and that the industry will welcome them. We are holding a workshop in December this year. Very shortly after that, the UKSA will plan the implementation of the policy framework around that. That work will obviously be relevant to the Bill as, when it comes into force, it will regulate the operation of all the satellites in orbit.
Amendment 18 seeks to make it a requirement that a report is laid before Parliament on any consultations, and to include within that report an indication of the regulations proposed. We still believe that the amendment is not necessary. Laying a report before Parliament would be a duplication. It is our intention, in line with the Government’s consultation principles document, to issue a government response to the formal consultations to take place in relation to this Bill. This will, of course, be accessible to everyone.
We expect that the approach to the insurance and licensing of nano satellites under this Bill will mostly be set out within the guidelines and not within regulations, as is the case under the Outer Space Act. This is to enable the development of the policy in line with changing circumstances. I would like to take a moment to explain how we envisage those regulations and guidance working. In Clause 37, the Bill provides the power to make regulations setting out that insurance may be required to cover certain risks and liabilities. The regulations can also set out what the insurance should cover, what may or may not be excluded from the cover and the amounts of cover required. Licences for spaceflight activities are bespoke in nature. Requiring a fixed amount of insurance for the operation of a satellite in orbit within regulations may remove the flexibility necessary to increase or reduce the insurance required, depending on the risks of each mission. It is therefore envisaged that the regulations may set out the methodology for calculating the amounts of insurance without containing specific figures. The regulations will set out those situations where insurance is required, what type of insurance is required and what should be covered within the policy.
Clause 12 and Schedule 1 allow the regulator to include a condition within each licence that sets out the minimum amount of insurance that is required for that licensed activity. We intend to include such conditions in licences for the operation of small satellites. The published guidance will set out the amount of insurance required in line with the regulations. Such guidance could include the insurance requirements for small satellites under the traffic light regime if the policy intention is to treat those in a certain way.
As I set out during the first day in Committee, the purpose of the guidance is to aid policy implementation by supplementing the legal framework. The main benefit of the guidance is the flexibility to amend quickly and take into account changing events. These are areas where guidance may need to be amended regularly and in a timely manner. In the meantime, the UKSA will continue to engage with industry and interested stakeholders. We are confident that we will publish the regulations in due course. I therefore ask the noble Lord to withdraw Amendment 18.
Lord Fox
I thank the noble Baroness for her letter on the subject of traffic lights, which I was pleased to receive. On a point of clarity, does the UK Space Agency, the Health and Safety Executive or some other body classify the risk of the launch? Who decides whether it is red, green or amber?
Baroness Sugg
It will be the regulator of the launch, dependent on whether it is suborbital or orbital, therefore either the CAA or the UKSA. However, they will use the same framework.
Lord Fox
We have exhausted this debate to a great degree. I still feel a little nervous that people are being asked to commit to a future industry when they are not sure how their satellites will fit into the Government’s regime and what the cost level of that will be. Therefore, there needs to be more clarity—if not in the Bill then issued in the guidelines—so that operators can be assured that they have an industry that they can afford to support. With that hope, I beg leave to withdraw the amendment.
Baroness Sugg
Baroness Sugg
My Lords, this group of amendments relates to land powers, a subject which attracted much debate in Committee. I have reflected on the concerns raised by the Committee, and I thank the noble Lords, Lord Tunnicliffe and Lord Rosser, the noble Baronesses, Lady Randerson and Lady Ford, and my noble friend Lord Deben for their close scrutiny of these powers. I will set out the amendments that we have tabled in response to their contributions.
The Government want to make it clear that the Bill will not give compulsory purchase powers to operators. We have sought to establish a proportionate set of land powers that are intended to be used only where appropriate. For this reason we have tabled Amendment 19, which replaces the word “expedient” with “appropriate” in Clause 38, as the former term was much criticised in Committee. This is intended to clarify the limited circumstances in which a Clause 38 order could be made. There is precedent for the use of the word “appropriate” in relation to the exercise of powers under other legislation. A few examples are the Airports Act 1986, the Armed Forces Act 2006 and the Civil Aviation Act 1982. I hope this amendment reassures noble Lords that the Government are serious about developing a balanced land powers regime that does not disproportionately impact landowners.
On Clause 40, noble Lords—including the noble Lord, Lord Tunnicliffe, and my noble friend Lord Deben—raised concerns in Committee about the lack of clarity regarding the temporary nature of the restriction on the use of land by orders under this clause in the current draft of the Bill. It is our intention that orders made under Clause 40 should be in force for only the shortest amount of time possible, and should be used only where no alternative arrangement can be negotiated with the rights holders and other interested parties.
Amendment 20 would remove Clause 40 and replace it with text that more clearly sets out the temporary restriction of use by such orders. This amendment, which is similar to the amendment to Clause 38, seeks to revise the language of the clause to reassure noble Lords that such orders will be made only where the Secretary of State considers it appropriate to do so. Further, subsection (1) of the proposed new clause explicitly sets out that orders would only temporarily restrict or prohibit the use of land or water for launch or landing.
We have also gone further. Orders made under this revised clause must specify the launch or landing that is proposed to be carried out and the period or periods for which the restriction or prohibition will apply. Orders must specify the relevant spaceport used and specify the area of land or water subject to the restriction or prohibition. This means that those affected will have greater clarity on the impact of the orders. They are able to challenge these restrictions using the objection process in Schedule 6, or can apply to quash orders under the process outlined in Schedule 7.
To reflect the temporary nature of restrictions or prohibitions under Clause 40 orders, we have consequentially tabled Amendments 23, 24 and 25 to Clause 44, which is headed “Registration of orders”. Temporary land orders made under Clause 40 would not be land charges and would not require registration in the land register in England and Wales or the equivalents in Scotland and Northern Ireland.
We have also tabled Amendments 26, 27 and 28 to Clause 48, which is headed “Amendment and revocation of orders”. The provision on orders under Clause 38, which is about powers to obtain rights over land, and paragraphs 4 and 5 of Schedule 9, which relate to statutory undertakers, remain the same as before. The amendments to this clause allow for amending orders made under Clause 40(1) to shorten or remove a specified period of restriction or prohibition on the use of land or water. An amending order made under proposed new Clause 48(2)(a), or an order revoking this order, becomes operative immediately after it is made and the Secretary of State must notify relevant persons about the order.
Baroness Sugg
My Lords, I am pleased that noble Lords have welcomed the amendments tabled on land powers. As a relative newcomer to your Lordships’ House and certainly to this ministerial position, it has been a pleasure to take on board the sensible suggestions which have been made and to include them in the Bill. I am afraid that I am not going to be able to satisfy the noble Baroness today on including the devolved Administrations in the Bill, but I would like to take the opportunity to spell out a bit more of our engagement with them.
We began the engagement process in early 2014 when we first met the Welsh and Scottish Governments to discuss our ambitions to promote the UK space industry. We have been engaged with them on an official level ever since to ensure that they are content with all the provisions of the Bill. Specifically on land powers, we have agreed an approach which they have confirmed they are happy with. Before the introduction of the Bill, we discussed the land provisions with the Scottish Government, the lands tribunals for Scotland and Northern Ireland, and the Registers of Scotland, and have since consulted the Scottish Civil Justice Council on the practical implications of orders under Clauses 38 and 40. They have all confirmed that they are content with the implications for their processes.
Orders made on Welsh land would be subject to the same registration process as those in England, and any tribunals that were to be involved would be the same ones as for England. The Minister of State for Transport, John Hayes, spoke last week to the Scottish Government Minister for Transport to update him on the progress of the Bill and the proposed amendments. In addition, my officials continue to engage the devolved Administrations of Wales, Scotland and Northern Ireland as the Bill makes its way through the parliamentary process. This includes sharing information on the proposed amendments tabled last week, with which the devolved Administrations have expressed that they are content. An opportunity for the devolved Administrations to raise any concerns about a specific order is, as I said earlier, provided in Schedule 6.
We expect that spaceport or launch operators or range control service providers will have already worked closely with local landowners and local authorities as they develop their plans for sites and launches. We also expect that, rather than orders under Clauses 38 and 40 being necessary, operators will negotiate with landowners for access to land.
I hope that this greater detail, combined with the amendments tabled by the Government to Clauses 38, 40 and 42, give reassurance to noble Lords. I hope also that the amendments demonstrate that the Government recognise the importance of land and ownership rights, as well as the importance of protecting the public during periods of spaceflight activities.
In response to the invaluable scrutiny of this House, we have sought to fine-tune our proposals to prevent unnecessary restrictions on land users and landowners. In addition, we have clarified the availability of a robust challenge process which provides those who wish to challenge with very similar grounds and remedies to those available through judicial review. The Bill also includes provision for just compensation where appropriate. I therefore ask the noble Baroness not to press Amendment 21.
Baroness Sugg
“Power to restrict use of land temporarily(1) The Secretary of State may by order temporarily restrict or prohibit the use of a specified area of land or water as a place for the arrival and departure of aircraft or spacecraft if satisfied that it is appropriate to do so—(a) to secure that a specified launch or landing may be safely carried out at a specified spaceport, or(b) to prevent a specified launch or landing at a specified spaceport from endangering persons or property.(2) An order under subsection (1) may not restrict or prohibit the use of an area of tidal waters that is beyond those of the territorial sea adjacent to the United Kingdom.(3) An order under subsection (1) must specify the period, or periods, during which the use of the specified area of land or water is restricted or prohibited.(4) Schedule 6 makes further provision in relation to orders under subsection (1).In that Schedule—(a) Part 1 applies to orders under this section that do not prohibit or restrict the use of water (“land orders”); (b) Part 2 applies to orders under this section that are not land orders.(5) It is an offence to contravene a provision of an order under subsection (1).(6) An offence under subsection (5) committed on tidal waters outside the ordinary jurisdiction of a court of summary jurisdiction may be tried and punished by such a court as if it had been committed in the nearest part of the United Kingdom that is within the jurisdiction of such a court.(7) Subsection (6), as it applies in relation to Scotland, does not confer jurisdiction on any court of summary jurisdiction other than the sheriff court.(8) Proceedings for an offence under subsection (5) may be instituted—(a) in England and Wales, only by or with the consent of the Secretary of State or the Director of Public Prosecutions;(b) in Northern Ireland, only by or with the consent of the Secretary of State or the Director of Public Prosecutions for Northern Ireland.(9) In this section—“launch or landing” means a launch or landing of a spacecraft or carrier aircraft;“specified” means specified in an order under subsection (1).”
Baroness Sugg
“Challenges to and commencement of orders(1) A proposal to make an order under section 38 or 40 may be challenged under paragraph 3 of Schedule 6 but may not otherwise be challenged in any legal proceedings.(2) An order under section 38 or 40 may be challenged under Schedule 7 but may not otherwise be challenged in any legal proceedings.(3) Subject to Schedule 7 and section 48(5), an order under section 38 or 40 becomes operative at the end of the period of six weeks beginning with the day on which the notice that the order has been made is published under paragraph 6(1)(a) or 8(1)(a) (as the case may be) of Schedule 6 .”
Baroness Sugg
Baroness Sugg
Baroness Sugg
Baroness Sugg
Baroness Sugg
My Lords, in Committee last month, a number of noble Lords urged my noble friend Lord Callanan to reconsider the Henry VIII powers contained in Clause 66. The noble Lord, Lord McNally, highlighted the powerful arguments made by several speakers on this issue and recommended that the Government give thought to that between Committee and Report. I am pleased to say that we have followed his advice and have considered the arguments made by noble Lords. As a result, I have tabled these amendments, which will remove the Henry VIII powers from the Bill. I hope noble Lords will appreciate the considerable ground the Government have given. We have not taken this decision lightly; we recognise that there may be situations in the future that leave some legal uncertainty. However, we will continue to examine related legislation and address any omissions as necessary.
Amendments 34, 36 and 37 ensure that the power to make consequential amendments in Clause 67 is now limited to changes to secondary legislation made under the negative resolution procedure. Turning to Amendment 33A, we had an interesting debate on this same issue in Committee. I take it that my arguments then failed to convince noble Lords of the necessity of the subsection. However, the Government remain convinced that the subsection is needed to ensure that all aspects of the Bill can be fully implemented effectively.
As noble Lords are aware, the Bill provides powers to make regulations for specific purposes such as safety and security. However, there remains the possibility that due to the complex and evolving nature of spaceflight technology, we may need to supplement such regulations with regulations on other aspects of spaceflight and associated activities. The power in Clause 67(1) would only be used in such cases. I hope noble Lords are reassured by my explanation and feel able not to press the amendment. I beg to move Amendment 31.
Lord McNally
My Lords, I see that the noble Lord, Lord Callanan, is in his place. I would like to say that he was sorely missed this afternoon, but unfortunately I cannot—we did not miss him at all. I can see that his popping in occasionally in the afternoon to this House of concord and agreement must be a pleasure, away from the hell of the Brexit department. It is good to see him. I do not know whether it was my eloquence or the fact that a former Lord Chief Justice—the noble and learned Lord, Lord Judge—applied his powerful arguments, but we welcome the Government’s concession.
I will not go into a great deal of detail on Amendment 33A. I will read out the section we want to delete:
“Regulations may make provision generally for carrying this Act into effect and for achieving the purpose set out in section 1(1)”.
Subsection 1 is equally catch-all. It states:
“This Act has effect for the purpose of regulating—(a) space activities, (b) sub-orbital activities, and (c) associated activities, carried out in the United Kingdom”.
That is far too wide-reaching.
I make one last plea to the Minister: perhaps we could have further talks involving the opposition—the Official Opposition as well, who put their names to this—to see whether we can get some different wording. We have done a lot of good work on this, but the wording is far too wide. I give her this Gypsy’s warning: if we send the Bill down to the other place with this subsection, it will cause just the same trouble. Parliament has to be very jealous of its privileges during the passage of Bills such as this. This is a bridge too far for anyone who cares about the need to keep powers within these two Houses. I am not going to press the amendment—it would be jarring to the spirit of the whole debate to have a Division at this stage—but if the Minister would agree to meet us and have one more go before Third Reading, that would be helpful.
Lord Rosser
The noble Lord, Lord McNally, said that widespread concern was expressed in Committee about Henry VIII powers in the Bill and the power they would give the Government to bypass Parliament when amending or repealing primary legislation. I too am grateful that the Government have changed their position. I suspect they were concerned that they would lose a vote on this in this House, and were probably far from sure they could put the Henry VIII clause back in the Bill when it got to the Commons. They would also have had the consideration that, at their behest, the Bill started in the Lords rather than the Commons, which is not the normal procedure for Bills containing potentially controversial clauses, as this one did until the government amendment was tabled. Henry VIII may be turning in his grave at these government amendments, but we welcome them.
On Amendment 33A, like the noble Lord, Lord McNally, I hoped the Government would be able to give some rather more convincing reasons than they gave in Committee for this catch-all regulation-making power being in the Bill. I am afraid the obvious conclusion is that once again, there is no movement because the Government have brought forward this skeletal Bill for their own party management reasons, one year before discussions on the regulations and nearly two years before those key regulations are placed before Parliament. As a result, frankly, the Government do not know what regulations will be needed. Even though this is a difficulty of their own making, they clearly think it quite acceptable to expect Parliament to agree to the wide-ranging regulation-making power Amendment 33A seeks to delete.
I share the view that it would help if this issue could be further discussed before the Bill leaves this House, which means before Third Reading. I also share the view that the subsection that Amendment 33A would delete will, if it remains in the Bill, be the subject of much discussion when it gets to the Commons. If the Government will not agree to delete it, it would be a lot better if it could be amended in some way. I hope they will think again on this issue.
Baroness Sugg
I will attempt again to explain our opposition to the amendment. It would result in primary legislation being needed for such cases, including, for example, to make provisions for any developments in technology. This could lead to delayed launches from the UK and harm a burgeoning industry, so we are keen to maintain flexibility.
It is worth noting that the power’s scope is limited. Only regulations that relate to the regulation of spaceflight activities and associated activities can be made, as set out in Clause 1(1). I provided assurances in Committee on the limited scope of these associated activities. If regulations were to go wide of those and cover other areas, the Secretary of State would have exceeded his or her delegated authority and the decision would be subject to judicial review.
The Government have reflected on the concerns expressed about the powers contained in the Bill. We have gone a significant way towards addressing them by removing the Henry VIII power. The removal of Clause 67(1) would adversely impact on the Government’s ability to ensure that legislation relating to spaceflight was kept up to date. I can assure the noble Lord, Lord Rosser, that this Bill was brought forward to supply certainty to the industry, but I understand that concerns remain about the definition of “associated activities” and would be happy to meet noble Lords ahead of Third Reading. I ask noble Lords not to press their amendment.
Baroness Sugg
“(4) Regulations under this section may not amend or repeal primary legislation.”
Baroness Sugg
Baroness Sugg
“(6A) The Secretary of State must carry out a public consultation before making regulations to which subsection (6) applies. Where the Secretary of State lays before Parliament a draft of an instrument containing such regulations, it must be accompanied by a report by the Secretary of State about the consultation.(6B) The duties imposed by subsection (6A) do not apply where the regulations amend other regulations and, in the opinion of the Secretary of State, they do not make any substantial change.”
Baroness Sugg
Noble Lords will recall the wide-ranging debate on parliamentary oversight of secondary legislation that took place in Committee. The Government have reflected on the concerns expressed by noble Lords. As a result, this amendment will impose a statutory duty to carry out a public consultation before any regulations are made under the affirmative resolution procedure.
I hope that the amendment alleviates noble Lords’ concerns and reassures them of the Government’s intention to undertake full and wide-ranging consultation. This will also include a report by the Secretary of State on the consultation. As my noble friend Lord Callanan said in Committee, the Government’s intention is to carry out a public consultation that will invite a response from all interested parties, including noble Lords and trade unions.
Any subsequent regulations that materially changed the substance of the original instruments would also be subject to consultation. All noble Lords who have spoken on the subject will be notified of any public consultation. I beg to move.
Lord Rosser
In Committee, we expressed our concerns about the extensive use of secondary legislation to bring in provisions under this Bill due to the Government’s insistence on taking a skeletal Bill through Parliament literally years before the all-important regulations appear.
We also expressed our concern, as did the Delegated Powers and Regulatory Reform Committee, about the Government’s intention, in respect of many regulations, that the affirmative procedure be used only for the first regulations and not for subsequent regulations under the same relevant section of the Bill, which would instead be covered by the negative procedure.
The Government said in Committee that the development of the first sets of regulations would be subject to a stakeholder engagement process over the coming months and that they would then issue a full and wide-ranging consultation on each initial draft statutory instrument prior to their being laid. They also said that if there were any material change to the original instruments, there would be further consultation.
Government Amendment 35 seeks to put some of those undertakings in the Bill. While it does not address the concern about the negative procedure being used for subsequent regulations after the affirmative procedure for the first regulations, it provides a statutory requirement for a public consultation before regulations are made to which Clause 67(6) applies and for a report to be made by the Secretary of State about the consultation when a draft of such regulations is laid before Parliament. To that extent, and it is not a minimal extent, the government amendment represents progress and we welcome it.
Baroness Sugg
Baroness Sugg
(a) an enactment contained in subordinate legislation (within the meaning given in the Interpretation Act 1978);(b) an enactment contained in, or in an instrument made under, a Measure or Act of the National Assembly for Wales;(c) an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament;(d) an enactment contained in, or in an instrument made under,”
Baroness Sugg