Space Industry Bill [HL]

Lord McNally Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Monday 23rd October 2017 Lords Chamber

Moved by

[Lord McNally]

40: Clause 66, page 42, line 1, leave out “enactment” and insert “secondary legislation”

[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so that SIs cannot amend primary legislation and only secondary legislation made under Clause 66 can be amended, repealed or revoked by secondary legislation.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.

--- Later in debate ---

It is likely that other legislation will come to light during the development of the secondary legislation. The power gives us the flexibility to deal with this situation. It does not mean a wholesale rewrite of legislation, as the power is limited to making only consequential amendments in other legislation to take account of the Space Industry Bill. In the light of those assurances, I would be grateful if noble Lords considered not pressing the amendments.

[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.

Amendment 40 withdrawn.

--- Later in debate ---

[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.

--- Later in debate ---

[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.