Space Industry Bill [HL]

Lord Rosser Excerpts

2nd reading (Hansard): House of Lords
Wednesday 12th July 2017 Lords Chamber

[Lord Rosser (Lab)]

My Lords, this Bill is clearly regarded, I hope correctly, as not potentially controversial; hence it is starting its passage through Parliament in your Lordships’ House. The Bill appears to have had a somewhat truncated period for consideration and scrutiny prior to its Second Reading. The Draft Spaceflight Bill, as it was then called, was published on 21 February, with an invitation sent to some three or four Select Committees to consider the measures proposed in the draft Bill. No deadline for reporting was apparently given. Nevertheless, the House of Commons Science and Technology Committee began its consideration of the draft Bill on 2 March, with the aim of reporting before the end of the Session. The advent of the general election rather curtailed its proceedings, including an evidence session with the Minister, but it published its report on 29 April. The committee received just 12 written submissions and took evidence from 12 witnesses.

As has been said, the Commons committee also wrote to the Delegated Powers and Regulatory Reform Committee of this House, inviting it to consider whether the delegated powers in the draft Bill offered sufficient opportunity for parliamentary scrutiny—an invitation to which the DPRRC responded. However, the House of Commons Science and Technology Committee commented in its report:

“Cabinet Office guidance recommends giving committees ‘at least three to four months (excluding parliamentary recess)’ to scrutinise draft Bills. We have had had just over five sitting weeks”—


hardly a satisfactory state of affairs.

On behalf of the Government, the noble Lord the Minister wrote, presumably to a number of us on, I think, 28 June—the letter was headed “Dear Colleagues” —setting out the measures contained in the Bill and the Government’s reasons for bringing it forward. I thank him for that letter. The penultimate paragraph stated:

“Given the number of delegated powers contained within the Bill, the Government has committed to publishing policy scoping notes covering all regulation-making powers prior to Second Reading”.


Along with, I presume, other noble Lords, I received an email late yesterday afternoon with what I assume are the scoping notes—it looked like 94 pages. If that is the Government’s version of honouring the spirit, as opposed to the letter, of a commitment given two weeks previously, it is not mine.

So we have a Select Committee not given anywhere near the Cabinet Office guideline on the amount of time to consider draft Bills and we have a Government who think that producing a lengthy document in the late afternoon of the day before a Second Reading constitutes honouring a commitment to publish such a document “prior to Second Reading”. Bearing in mind that the Bill contains some 100 individual provisions containing delegated powers, one of which is a Henry VIII power, I am sure that many wonder whether this is but a dry run for the Government’s approach to both the legislation and to Parliament in seeking to implement the decision to withdraw from the European Union.

The letter from the noble Lord the Minister of 28 June also stated that,

“further engagement with industry and others will take place over the summer and I intend to make more information available regarding the Government’s approach to secondary legislation in advance of Committee Stage of the Bill”.

In the light of what has happened with the previous commitment to which I have referred, can the Minister now give a firm and specific commitment on how far in advance of Committee that further information will definitely be made available, bearing in mind the Government could seek to start the Committee stage immediately after we return from the recess or shortly afterwards? Indeed, it might be helpful if the noble Lord the Minister could point out to his relevant government colleagues the extent to which the Bill provides for delegated powers and the commitments that have been given on providing further information on the Government’s approach to secondary legislation, and suggest that it would be better if there was a breathing space between the return from recess and the start of the Committee stage.

The Outer Space Act 1986 provides the current legal framework for the UK to fulfil its obligations under the United Nations space treaties, which require any UK organisation or individual launching, procuring a launch or operating space objects to be licensed. These licensing powers rest with the Secretary of State and are administered by the UK Space Agency. To date, as has already been said, launches licensed by the UK Space Agency have taken place overseas. The Civil Aviation Authority recommended that the regulatory regime for spaceflight activities be updated, following its review of UK commercial space plane operations in 2014. At the end of 2015, the Government published a national space strategy. Following that, we now have this Bill, whose purpose is to make provision to enable commercial spaceflight activities to be carried out from the United Kingdom for the first time in the light of the expectation that the global market for small satellites will grow rapidly.

The space sector has already delivered important benefits to the UK economy, generating a turnover of just under £12 billion in 2012-13 and employing at that time some 35,000 people. A 2016 assessment reported that the space industry was worth £13.7 billion in 2014-15, equivalent to 6.5% of the global space economy, and contributed £5.1 billion gross value added to the UK’s economic output. The UK Space Agency has said that a majority of income generated by the space industry, nearly 75%, comes from space applications such as the services which use satellite data directly. Space operations, such as operating satellites and ground stations, constitute 15% of the income generated.

As the noble Lord the Minister has said, the Bill seeks to create a regulatory framework to enable commercial spaceflight activities, launch to orbit and sub-orbit spaceflight to be carried out from spaceports in the United Kingdom, and for the licensing of spaceflight activities. Clauses within the Bill make provision for the grant of licences, the establishment of ranges, safety and security as well as liabilities, indemnities and insurance. The Bill will apply only to activities conducted in the United Kingdom and will restrict the application of the current legislation in force, namely the Outer Space Act 1986, to activities conducted outside the UK. While the Government have said that the UK’s obligations under international and EU space law, as it is currently practised, would continue to be enforced under this Bill in respect of the UK, where is that spelled out, for example, in relation to contamination of outer space in compliance with the 1967 UN Outer Space Treaty and covered in the Outer Space Act 1986, which would no longer apply to activities conducted in the United Kingdom?

The 1968 Act refers to a set of comprehensive standards applicable to the design and functioning of space vehicles, but these do not appear to be carried over into this Bill, which will, in future, regulate activities conducted in the UK. What are the Government’s intentions in this regard? On licensing, why does the Bill not clarify the differing nature and duration of licences for the different parties involved, and the need for certification? Is it really the Government’s intention that all this should be left to secondary legislation? Nor does the Bill appear to include provisions related to health and safety, environmental protection, local planning and other issues associated with on-site activities. Why does the Bill not do this?

We support the thrust of the Bill, which, as has already been said, has the support of the space industry, not least because of its focus on enabling commercial spaceflight from the United Kingdom. The major downside of the Bill, to which I have already referred, is the lack of detail, which makes detailed scrutiny somewhat difficult. It is in effect still a skeletal Bill which places a lot of powers in the hands of the regulators and the Secretary of State. Consequently, the Bill contains a very considerable number of delegated powers—as I have said, around 100 provisions—to bring forward secondary legislation in the future. While there is clearly an argument for having a flexible regulatory structure in a field of activity where there are many unknowns, there is also a need to provide for meaningful parliamentary debate and scrutiny, which cannot be achieved through secondary legislation in the way that it can through primary legislation.

The Government have, as has been said, made some changes from what was in the draft Bill in the light of the reports and consideration by the House of Commons Science and Technology Committee and the Delegated Powers and Regulatory Reform Committee of this House, and that is to be welcomed, but the issue of whether the changes go far enough in meeting the concerns raised by those committees, and by others, is one that will have to be considered in more detail at further stages of the Bill, and in the light of further documents received from the Government only late yesterday afternoon by email, and further information that is to be provided by the Government prior to Committee. However, in its delegated powers memorandum dated 28 June the Department for Transport, in noting the concern of the DPRR Committee that some powers dealing with matters of significant public interest, such as safety and security, were subject to the negative resolution procedure, went on to say:

“However, switching these to affirmative procedure in all cases could take up a disproportionate amount of parliamentary time and might discourage timely updating because of difficulties in securing parliamentary debates”.


So much for the importance of parliamentary scrutiny and accountability. The Government appear, at heart, to regard it all as a bit of an inconvenience.

I would add, of course, that the Government have proposed a compromise in respect of some delegated powers with a “first-use” affirmative procedure, with the negative procedure thereafter. The Government’s response as a whole will need to be considered carefully, but as the DPRR Committee said in its response, while flexibility and adaptability are key to the underlying technology,

“it does not follow that legal matters affecting the rights of the general public should be governed by considerations of ‘flexibility’; quite the contrary”.

My noble friend Lord Haskel is not able to be here today to take part in this debate, but I know he has issues in relation to the regulations for operations and safety and standards, and other matters, in what is a highly competitive market, with thousands of new satellites required over the next five to 10 years and companies planning commercial spaceflights. Without international collaboration on standards, there is likely to be little collaboration in business. Is it the Government’s objective that the standards of safety and security outlined in the Bill should satisfy all potential customers? What protections are envisaged against cyberattacks seeking to cause disruption and damage? Presumably, launches and landings become more vulnerable to attack, with potentially tragic consequences, with the move to digital systems. If the navigation system is open to attack, the results could be even more tragic. This does not appear to have been addressed in the relevant clauses in the Bill, so what reassurances or commitments can the Government provide?

The Bill refers to horizontal launches and vertical launches and establishing a new centre for these. Are the Government looking at adapting existing aerodromes, which would presumably already have some infrastructure for access, service and accommodation? What intentions or restrictions do the Government have in mind in respect of the location, ownership and operation of a spaceport or space station? In respect of horizontal launches, sub-orbital space tourism is presumably the major market and there are spaceport promoters interested in bringing this to the UK. Once members of the public are flying in a spacecraft, other concerns emerge, with the spacecraft becoming more like a commercial aircraft. Presumably, the CAA will be largely responsible for the regulatory environment in this situation. Issues have already been raised in this House, including by the noble Lord, Lord Balfe, about the potential dangers posed to aircraft by drones—and, indeed, by the use of lasers—and they could equally apply with the public flying in spacecraft. Do the Government intend to address this in the Bill?

With a major increase in the number of satellites, how do the Bill’s provisions relate to international efforts to reduce the amount of junk? In some instances, there will no doubt be reusable spacecraft. How does the Bill regulate returning craft? Will this be controlled by the UK Space Agency and the CAA, and will they have to co-operate in this with other agencies? If that is the case, how does the Bill envisage this being done?

Finally, is it the Government’s intention to retain our membership of the European Space Agency, which is independent of the European Commission? If so, is that space agency satisfied with the Bill’s provisions?

I conclude by reiterating our support for the general thrust and intent of the Bill, but not for some of the lack of detail in it. No doubt there can be further discussions about the Bill prior to Committee, which looks as though it may not be until October. I hope that those discussions, as well as our discussions in further stages of the Bill, will resolve some of the questions about the lack of detail in the Bill.

[Lord Callanan]

My Lords, I thank all noble Lords who have taken part in today’s Second Reading for their, as ever, very informed questions, which they were quite right to ask. The challenge and the debate are welcomed by the Government and will help us strengthen the Bill. I appreciate the broad support that has been shown for the Bill’s ambition. I reiterate the point that I have made to a number of noble Lords, both publicly and privately, that we are looking to co-operate on all sides of the House on this matter with Members from all parties and none. I am always available to discuss aspects of it and I have written to a number of Members to make that point. I thank my right honourable friend the Minister of State at the Department for Transport, who was sitting on the steps of the Throne earlier. I was delighted to see him paying such close attention to our proceedings.

I will try to address many of the points that have been made. I thank the noble Baroness, Lady Bloomfield, for her astute analysis of the UK space industry and her support for the Bill. On the issue that she raised concerning the comparable provisions to those in Section 1 of the Civil Aviation Act 1982 to promote the development of the space industry in the UK, I agree that the Government should recognise the need to promote growth in this sector. The Deregulation Act 2015 provides for a growth study to apply to functions specified by order. Statutory Instrument 2017/267 already lists functions under the Outer Space Act 1986, and we propose to amend this SI to also list functions under the Bill. My noble friend also shares the concerns of a number of other noble Lords—my noble friend Lord Moynihan also mentioned this—about over- regulation of this emerging market. This is a concern we are very alive to, and the Bill establishes a proportionate framework to support growth in this emerging sector while adequately balancing government and operator rights, the safety provisions and other factors dedicated to it. In exercising the powers in the Bill, the Government will ensure proportionality, and we intend to consult fully on all the secondary legislation required to implement these measures.

Engaging with agencies such as ICAO was raised by the noble Lord, Lord Hunt. Through the DfT and the Civil Aviation Authority, the UK has been working as part of a joint ICAO/UNOOSA space learning group better to understand how commercial spaceflight fits in with the global air navigation structure and how regulation will need to adapt to the new industry. ICAO has not yet developed detailed rules on spaceflight.

The noble Lord, Lord Hunt, also raised the issue of the carriage of nuclear materials. We do not intend to permit the carriage of any nuclear materials. Paragraph 3 of Schedule 3 allows for prohibitions and restrictions on this. There may be exceptions regarding everyday appliances such as smoke detectors, which routinely use small quantities of technically radioactive material.

We do not believe that the Bill engages obligations to produce an environmental impact assessment. Environmental impacts are heavily correlated with the type, frequency and location of spaceflight activities. At this stage, it is very difficult to ascertain specific environmental issues. For example, the sensitivities of a site cannot be known until we know the location of the spaceport.

My noble friend Lord Moynihan and the noble Lord, Lord Hunt, raised international agreements, and they were right to do so. We have put in place a number of agreements to enable commercial spaceflight in the UK. The type and nature of these agreements depends largely on the technology used, how and where it is operated and what it is used for. The UK complies with all existing space treaty obligations, and we are working to secure the agreements necessary to enable commercial spaceflight to take place from the UK.

On a point made by the noble Lord, Lord Hunt, I should say that the UK Space Agency’s international partnership programme uses UK R&D to support international development. This supports developing countries to use satellite solutions for problems such as deforestation and disaster relief. My noble friend Lord Moynihan asked about the Government’s support for the development of this emerging market in the UK, and a number of other Members raised a similar point. The UK Space Agency published details of the grant process in February, including our processes for assessing proposals and the criteria we would apply. We have engaged extensively with the parties who submitted funding proposals, to ensure that our process is transparent. The proposals were naturally submitted to the Government in commercial confidence and noble Lords will understand that I cannot disclose details now. However, I can confirm that in line with the process set out in February, the UK Space Agency is currently considering these proposals with independent expert advice, and I expect it will announce the outcome of the process later in the year.

A number of noble Lords, including the noble Lord, Lord McNally, raised questions around the European Space Agency. The Government’s policy to exit the EU does not affect the UK’s membership of the European Space Agency. The UK has a strong and healthy space economy with an international outlook. We have a long history of collaboration and participation in European space programmes and missions through the European Space Agency. The Government will continue to take an active role in European space programmes, supporting UK industry in its bids to win contracts overseas and developing our national capability to keep the UK competitive in the global market.

The issue of affirmative regulations was also raised by my noble friend Lord Moynihan. We need a proportionate approach for aviation. Section 60 of the Civil Aviation Act enables all aviation safety rules to be made by negative procedure. These safety rules are likely to be amended frequently. We aim to lay statutory instruments in summer 2019, and licences can be issued once these are in force.

The noble Lord, Lord Hunt, raised the issue of range ownership. Our intention is for these to be privately owned. Foreign ownership is not prohibited. A licence cannot be granted of course unless the applicant is a fit and proper person.

My noble friend Lord Dunlop asked me about the number of spaceports. The Bill does not restrict the number of licences that could be issued for spaceports. However, the decisions on licensing would be based on eligibility, alternative criteria requirements and safety standards. I noted his strong advocacy of Scotland, along with that of my noble friend Lord Moynihan—we have a lot of interest from Scotland, particularly given the rural nature of many of its locations. We are working closely with the devolved Administrations, but I hope that my noble friends would not expect an Englishman with Irish roots to adjudicate on this process. My noble friend Lord Dunlop also asked me about ITAR and knowledge transfer. The Bill includes provisions for entering into agreements with other countries, including the provision for knowledge transfer and to ensure that we can meet the ITAR constraints that may be imposed on us by the United States.

The issue of liabilities was raised by a number of noble Lords. We have taken the power in the Bill to cap liabilities. However, we can assure industry of our intention to cap liabilities only in circumstances for which analysis has already been carried out to determine the current liability cap policy under the Outer Space Act 1986, as amended by the Deregulation Act 2015. For other circumstances, we hope to carry out the analysis as quickly as possible to further promulgate our policy decision.

My noble friend Lord Balfe and the noble Lord, Lord Rosser, raised the issue of drones. Your Lordships will be aware that the department completed a consultation on the safe use of drones in the UK in March. We are considering the responses received and developing outcomes on this, and I hope the Government’s position will be released very soon.

My noble friend Lord Suri asked me about consultation. We will discuss the proposed structure of the statutory instruments and how this fits with industry views. We intend to publish a database containing more detail on regulatory functions including spaceflights, on existing international best practice under each of those functions, and on initial assessments of risks associated with each of these functions before and after regulatory activity has taken place. We expect that this will start the conversation on the licensing framework and can inform discussions with insurers about the level of residual risk, and therefore start to gauge the potential appetite for insurers to enter the market.

The noble Lord, Lord Fox, asked me about timetables for launch. I am slightly hesitant on this, but we intend to lay statutory instruments in summer 2019. Once these have entered into force, regulators will be in a position to accept licence applications, which we expect will be processed in roughly 12 to 18 months. Please take that with a slight pinch of salt—these things can change and there are lots of considerations still to go through—but it might help as a rough timetable.

I take the point made by the noble Lord, Lord Rosser, about the policy scoping notes. Please accept my apologies that they came out late, but I wanted to get them issued before we sat down today. I appreciate it is very difficult to read a 94-page document in advance of this debate, but the policy scoping notes are not provided for discussion: they are our initial statement of intention with regard to the use of delegated powers and the need to consult on the use of powers given their importance and impact and the need to carry out analysis and assessment of criteria for determining safe levels of risk, for example. I confirm that it is not currently our intention to take Committee immediately after the holiday break in September. It will be a few weeks after that, subject to the vagaries of the Whips, and not immediately we return after recess.

[Lord Rosser]

I thank the Minister for that comment. It had certainly been my understanding that it was not going to be in September anyway. What is of concern—given the extent of devolved powers, with further information still to come—is if on the first or second day back in October, the Committee stage of the Bill is scheduled. What I meant by breathing space was a breathing space in October before we start Committee.

[Lord Callanan]

I am not in a position to confirm that yet. As soon as I get further information from those who deal with these matters, I will let the noble Lord know. I intend to work as closely as possible with all noble Lords on this; when I have further information, I will share it with him.

On the question of licensing and insurance for mega constellations, space activities are risky in nature and the Government may be required to pay compensation for damage caused as a result of spaceflight and related activities carried out by UK entities or launched from the UK. The insurance requirement is one of the provisions in the Bill to protect the Government and the public by ensuring that there is a resource to meet such claims. We do not believe that small satellites pose the same risks to the space environment. Further work will be undertaken on the insurance requirement for the different activities licensed.

The UK has played a major part in developing the main EU space programmes—Galileo and Copernicus—and space surveillance and tracking, which have supported the rapid growth of the UK space sector and contributed directly to our prosperity and security. It is a global success story, leveraging our best talent to deliver highly innovative products and services every year, and we want that to continue if at all possible.

The noble Lords, Lord Fox and Lord Rosser, asked me about delegated powers. The Bill contains 71 clauses, 12 schedules and 100 delegated powers. This large number of delegated powers—I accept that it is a lot—is required because the commercial spaceflight environment is innovative, highly technical and fast changing. It is important that we have the flexibility given by secondary legislation to adapt to keep pace with this emerging market, as both UK regulators and the space industry develop expertise in this area. The Bill sets out the regulatory framework for a novel, dynamic and diverse industry, accommodating a wide range of different technologies. It aims to provide sufficient certainty and assurance to Parliament, regulators, industry and the general public while simultaneously having the flexibility to allow industry to grow. Early feedback so far from industry is that this flexibility is seen as vital. A rigid approach that offered limited opportunity to keep pace with either the development of spaceflight or the enhanced experience of the regulators would be restrictive for the sector.

The noble Lord, Lord Rosser, asked me about horizontal and vertical launch. He is correct: currently, we expect existing aerodromes to be most interested in conducting horizontal launch activities. I would expect vertical launch activities to be from a mixture of existing aerodromes and new facilities, subject to the strict licensing conditions that we have put in place. The noble Lord, Lord Hunt, asked me about flags of convenience. Responsible operators may be attracted to launch from the UK, but our vigorous approach to safety should deter less responsible persons.

[Lord Callanan]

I can confirm that we are in extensive consultation with industry players. My honourable friend was visiting Surrey Satellites this morning for discussion on various aspects of the Bill and its commercial operations.

I think it was the noble Lord, Lord Rosser, who asked me about international environmental obligations under the Bill. They are covered by duties of the regulator in Clause 2 and under numerous other clauses, including Clause 8. We would not grant a licence if it were inconsistent with our international obligations. We have reviewed the relevant international, environmental treaties and obligations and the national requirements that may apply to spaceflight activities, and have concluded that we do not need any specific new provisions in the Space Industry Bill, but spaceflight activities and spaceports will, of course, have to fully comply with all existing planning and environmental requirements.

In relation to cyber interference, for conventional aviation we keep transport security under constant review, and we will do the same for spaceflight activities. We already work closely with partners across government and industry on restrictions between horizontal and vertical spaceports. I hope that I have responded to most points put by noble Lords, but if not there will perhaps be an opportunity to explore these issues further.

We have covered lots of vital areas and extremely important issues in this debate. Noble Lords were right to focus on issues of safety, environment and growth of the industry. I am sure that we will return to many of these issues in Committee. Once again, I thank all noble Lords for their general warm welcome for the Bill, notwithstanding some of the concerns expressed. As I said earlier, I look forward to working with noble Lords both in and outside the Chamber to ensure that we strengthen the Bill’s provisions as it makes its passage through the House

[Lord Rosser]

Before the noble Lord sits down—I thank him for the responses to the questions raised—if he finds that he has been unable for very good reasons to respond to all the questions raised, and I will not confine this to my questions, can we take it that he will write in response to those questions he has not dealt with?

[Lord Callanan]

Of course. We have a meeting planned for next week anyway, when we can perhaps discuss these issues further. I will be very happy to clarify and give more detail on any of the points we have spoken about. With that, I conclude by asking the House to give the Bill a Second Reading.

Space Industry Bill [HL]

Lord Rosser Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 16th October 2017 Lords Chamber

[Lord Kennedy of Southwark (Lab)]

My Lords, I am sure that the noble Lord’s amendment is excellent but I do not want to speak about that, but to make brief reference to the fact that on the previous Question I should have declared that I was a vice-president of the LGA. I forgot to do that, and I apologise to the House.

[Lord Rosser (Lab)]

I just add one or two brief comments to what the noble Lord, Lord McNally, quite rightly said, seeking to explore further what the impact of withdrawal from the European Union might or might not have.

At Second Reading, the Minister made reference to the issue and said:

“The Government’s policy to exit the EU does not affect the UK’s membership of the European Space Agency. The UK has a strong and healthy space economy with an international outlook. We have a long history of collaboration and participation in European space programmes and missions through the European Space Agency. The Government will continue to take an active role in European space programmes, supporting UK industry in its bids to win contracts overseas and developing our national capability to keep the UK competitive in the global market”—[Official Report, 12/7/17; cols. 1268-69.]


Those were clearly welcome statements, but I am not sure that they went to the heart of the question: namely, what impact could our withdrawal from the European Union have on spaceflight and the space industry in this country? Apparently, there has been talk in government circles of the possibility of leaving on the basis of no agreement at all being reached with the European Union on the terms. Can the Minister spell out what the consequences might be for the space industry and the level of co-operation that currently takes place if we ended up withdrawing from the European Union without any agreement? Perhaps he could also compare and contrast that with the situation whereby we left with what I think is known in the official jargon as a soft Brexit.

The noble Lord, Lord McNally, rightly made reference to the fact that the industry would like a degree of clarity and certainty for the future. Indeed, that was the Government’s argument for bringing forward the Bill at a time when we know nothing about the regulations, on which consultation will not take place until next year and which will not be produced until 2019. Presumably, if the Government are saying that the Bill is needed because the industry requires clarity, they will use this opportunity to offer the industry clarity on the impact of our leaving the European Union on the space industry and spaceflight in this country.

[Baroness Randerson (LD)]

My Lords, there are 38,000 jobs in the UK in the space sector, and they are top-quality, well-paid, highly skilled jobs. Brexit threatens the majority of those jobs, both directly and indirectly. Although the Bill is welcome and in itself uncontentious, it does nothing of any significance to plug the gaps that are threatening those jobs.

How and why does Brexit threaten those jobs? Two sets of work are ongoing on which we rely for a very large part of our jobs in this country relating to the space industry; they are funded by the Galileo and Copernicus projects. The UK Government have said that they want to remain part of those projects but they have failed to make a binding commitment to them. The problem is that talk of a no-deal Brexit seriously undermines the Government’s verbal assurances on this issue. They need to make it clear that they want to buy into those programmes in the future—beyond 2019. Clearly that could not happen in a no-deal scenario.

Let us be clear that we do very well out of EU space activity. In terms of what is technically called “geo return”, we put in 12.5% of funding and get back 14% of spend. We are talking about very large amounts of money. When applying for funds, companies now have to make it clear to the EU how they will ensure that after March 2019 they will still have a base in an EU country. This is a new requirement. The impact is that those companies with other EU sites are leading their bids from there, not from the UK. Those companies without another base are obviously thinking of moving to another EU country. Because there is such a long lead-in time in this industry, these decisions are being made now or in the very near future.

The second factor is the supply chain, a lot of which is foreign inward investment into the UK, and there is some current rethinking on that—so more good jobs in the UK are at risk. A major aspect of this problem is the free movement of people. The industry relies a lot on EU nationals, many of whom are already leaving. But British staff, working in the industry, are also looking abroad for opportunities and we cannot afford that brain drain. It is essential to the aerospace sector as a whole that there is free movement. The kind of visa for highly skilled workers that the Prime Minister has already talked about simply would not suit their needs. They need flexible, long-duration visas because they require staff to be so mobile and flexible. Their needs are very much like those for the rest of the aerospace sector.

For example, as many noble Lords will know, Airbus has plants in Toulouse, Broughton and a number of other places. A technician might arrive at work in Broughton one morning and be told that he is off to Toulouse by lunchtime and will be back tomorrow or the day after. Airbus, as a company, moved employees 80,000 times last year between the EU and the UK. It has its own jet shuttle between sites. The kind of visa that the Prime Minister talked about does not start to tackle that problem. The perception in Europe is that we have already left. So whatever the Government’s good intentions with this Bill, if you hollow out what we already have in our space industry in the way in which I have outlined, there is not much point in this Bill. We simply cannot afford to keep losing such high-value industries and high-quality jobs. It is important that the Government persuade us here today that they have already taken on board the key issues that we have raised in relation to Brexit and our relationship in the future with the EU.

--- Later in debate ---

Moved by

[Lord Rosser]

3: Clause 2, page 2, line 25, at end insert—
“( ) the effect on the environment and on local communities of activities connected with the operation of spaceflight activities or the operation of a spaceport as licensed under this Act;”

--- Later in debate ---

[Lord Rosser]

My Lords, the Bill has been drawn up with the objectives and the future of the spaceflight industry in mind. There is obviously nothing wrong with that, but other interests and considerations also need to be safeguarded and addressed. The calls at Second Reading for light regulation and what is described as no unnecessary bureaucracy or red tape make one a little wary. Light regulation is what we apparently had for the financial services sector a decade ago, and we all know what some involved there got up to, which cost the country dear. One person’s light regulation and so-called red tape can be a weakening of another person’s protections and safeguards.

One of the areas on which we need to be satisfied that the Bill either provides or does not remove appropriate safeguards and protections is over the impact that spaceflight development as envisaged in the Bill could have on the environment and local communities. There appears—subject to what the Minister may say in response—to be surprisingly little in the Bill that addresses potential concerns in these two important areas.

The duties and powers of the regulator, as set out in the Bill, are geared to the promotion of spaceflight. Indeed, at Second Reading there were calls for a more specific statutory government duty to achieve this objective. Clause 2(2) states:

“The regulator must exercise the regulator’s functions under this Act in the way that the regulator thinks best calculated to take into account”,


with the first two matters listed being,

“(a) the interests of persons carried by spacecraft or carrier aircraft”,

and,

“(b) the requirements of persons carrying out spaceflight activities”.

There is no specific reference to local communities in the other matters listed under Clause 2(2), and the reference to the environment appears to be,

“environmental objectives set by the Secretary of State”.

Those could prove to be wide-ranging but, equally, they could prove to be non-existent or even negative, depending on the outlook of whoever is the Secretary of State at the relevant time.

--- Later in debate ---

In answer to a question put to me by the noble Lord, Lord Rosser, an exempt person will need to comply with environmental legislation where necessary, and planning, as part of current exemption conditions. Exemption from the licence does not exempt the person from the requisite planning legislation. I hope noble Lords feel that I have addressed their questions and reassured them on the provisions in the Bill, and I therefore ask the noble Lord to withdraw his amendment.

[Lord Rosser]

I thank the Minister for his response. Obviously, the issue of the significance or otherwise of someone who is exempt from the licence will come up later in a separate debate, but presumably, if someone is exempt from the licence, the regulator cannot apply conditions that have to be abided by on a licence because the operator will not need one.

[Lord Callanan]

That is true, but it does not exempt operators from the relevant planning provisions.

[Lord Rosser]

But it would exempt the person from some of the duties in Clause 2, which would be covered by the licence. That includes the things the Minister has prayed in aid in rejecting the amendment. Presumably, it does not include the requirement regarding,

“the interests of any other persons in relation to the use of land, sea and airspace”,

or,

“any environmental objectives set by the Secretary of State”.

The regulator could not take those into account when issuing the licence because no licence would be required by the person who was exempt.

I thank the Minister for his response, but if the Government really are determined to make sure that environmental considerations are covered and mentioned fair and square on the face of the Bill, I put it to him that they would not have used the phrase,

“the interests of any other persons in relation to the use of land, sea and airspace”.

I think they would have been a little more specific, because it begs the question as to how one interprets,

“the interests of any other persons”,

which does not say anything specific about the environment or anything else. It would presumably be left open to the regulator, who could be the Secretary of State, to define what they thought that phrase covered. I ask the Minister to think hard about that on the Government’s behalf, because if, as he said, we are all as one in wanting to make sure that environmental considerations are taken fully and properly into account, why not make that a lot clearer in the Bill?

The Minister referred to Clause 2(2)(e):

“any environmental objectives set by the Secretary of State”.

“Objectives” implies something fairly wide-ranging, not something that has to be abided by or adhered to. I have already made the point—which I do not make in relation to the current Secretary of State—that an awful lot will depend on the attitude to environmental objectives of the Secretary of State of the day and the extent to which they are taken into account. Different Secretaries of State may have very different views on that point, so, frankly, I do not regard the Bill as it stands as satisfactory—particularly since the Government seem to accept that we are all as one in wanting to ensure that environmental considerations are properly taken into account.

There are a large number of regulations still to come in the Bill. I know the Minister will say that those affect only minor issues and none of substance, but regulations have a habit of being extended somewhat. I posed the question as to whether regulations could be drawn up that weaken or take away any of the current planning and environmental protections. I also referred to the Henry VIII powers in Clause 66, which by definition enable the Government to alter legislation. I again put it to the Minister that, given the Bill’s current wording, environmental considerations could very much take second place.

I will withdraw the amendment, but I refer to what the Minister said—perhaps I misunderstood him—on Second Reading:

“We do not believe that the Bill engages obligations to produce an environmental impact assessment”.


He also said:

“Environmental impacts are heavily correlated with the type, frequency and location of spaceflight activities. At this stage, it is very difficult to ascertain specific environmental issues. For example, the sensitivities of a site cannot be known until we know the location of the spaceport”.—[Official Report, 12/7/17; col. 1268.]


I would have thought it extremely difficult to argue, as one could interpret the Minister was arguing on Second Reading, that there could be a spaceport site for which no environmental consideration at all needed to be taken into account, and that there was therefore no immediate need for an environmental impact assessment. That part of the Bill could be strengthened.

I hope the Minister will think long and hard about what has been said today, and hopefully he can be more positive during the Bill’s later stages. However, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

--- Later in debate ---

[Lord Lucas (Con)]

My Lords, I may have misheard, of course, but I did not hear my noble friend the Minister address my noble friend’s question about whether some other activities that should not need a licence might fall under the wording of the Bill because “spaceflight activities” can refer to activities associated with spaceflight rather than just launches. I hope I have understood my noble friend correctly.

[Lord Rosser]

I do not want to prevent an answer to the noble Lord’s question but if the Minister is going to reply to the noble Lord, Lord Lucas, I want to come in afterwards.

[Lord Callanan]

I thought I had responded to it but I will reflect on the point that he has made.

[Lord Rosser]

The noble Lord, Lord Moynihan, moved an amendment to Clause 3 and the Minister went on to talk about Clause 4, perhaps because they are grouped together on the list in front of us. If the Committee is willing to bear with me, I have a stand part resolution down in relation to Clause 4. If I could just make one or two points about that, I would be grateful.

Clause 4(1) refers only to not requiring,

“an operator licence to carry out spaceflight activities”.

It does not refer to operating a spaceport. Can the Minister say whether the provisions of Clause 4 apply only to spaceflight activities—that is, the flight itself—or do they also apply in any way to the operation of a spaceport? Clause 4(1) refers also to international obligations, which the Minister has referred to already. I will read Hansard carefully to see exactly what international obligations he referred to in giving an example of the kind of situation in which an exemption would be given.

What role or powers will the regulator have in relation to a person who does not require an operator licence under the provisions of Clause 4? We partially dealt with that in the discussion on the previous amendment, and I think the Minister referred to later amendments and suggested that he would deal with the matter then since it is not immediately clear what powers the regulator has in relation to a person who is exempted from having a licence or what difference that exemption makes in terms of the regulator.

Clause 4(2) states:

“Regulations may make provision for other activities or persons to be exempted, either by the regulations themselves or by the regulator”.


What other activities or persons could we be talking about—which in relation to activities or who in relation to persons—that would be exempted from an operator licence or does the reference to activities go beyond activities for which an operator licence is required? Although I listened to what the Minister said, I am not quite sure exactly what he said about the need for the provisions in Clause 4(2) as opposed to the provision in respect of Clause 4(1).

Clause 4(4) states:

“Regulations may … make provision about the revocation or renewal of an exemption”.


Why is “may” there? In what circumstances would an exemption from an operator licence be granted which did not contain a provision for that exemption to be revoked?

[Lord Callanan]

I shall first address the noble Lord’s question. It is considered that the activity of operating a spaceport will not qualify for an exemption as the activities that will take place from the spaceport will have safety implications, for example, the storage of hazardous materials, the launching of spacecraft et cetera.

I shall give the noble Lord a few more details on the kind of exemptions that we are considering under these clauses. These exemptions are based on similar exemptions contained in Section 3(2) of the Outer Space Act 1986. The first exemption in Clause 4(1) is for situations under the UN space treaties where the UK and another state are jointly liable for a space activity. This provision allows the UK and the other state to allocate responsibility for regulation, supervision and monitoring activities between themselves. This exemption would be made by way of an Order in Council. The second exemption provides that activities or persons can be exempt from the requirement to hold an operator licence if the activity does not give rise to safety concerns or invoke the international obligations of the UK. There is also an exemption in Clause 7(4) that regulations may exempt persons or services from the requirement to hold a range control licence if the activity does not give rise to safety concerns or invoke the international obligations of the UK.

The terms “operating a space object” and “operating a spacecraft” in the Bill are drafted to be intentionally wide. Although this is useful and necessary to capture all activities for which a UK liability might arise under the UN liability convention, certain activities could be captured where there are no safety or security implications and the state liability is already indemnified by someone else. In such a case, a licence might not be necessary and could be overburdensome on industry. Clause 4 therefore provides for exemptions in these circumstances.

I shall give some examples of activities that could be exempted from licence requirements. The Bill provides that persons engaging spaceflight activities and range control services can qualify to be exempt from the requirement to hold a licence. Some aspects of manned suborbital activities could qualify for an exemption. However, the exemption under Clauses 4(2) and 7(4) will apply only in cases where the activity does not give rise to concerns for public safety or the safety of those involved in the activity. If there were any concerns that the activity would put people’s safety at risk, then it would not qualify for an exemption. To qualify for an exemption under Clause 4(1), another country would be required to take on all the international obligations of the UK. I hope that my response satisfies the noble Lord’s concerns.

--- Later in debate ---

With those thoughts in mind, I have tabled these amendments in my name. While recognising—I emphasise again—that we have moved a long way from a skeletal Bill to a far more detailed and comprehensive one, and that the Government have listened carefully to the arguments made in both Houses, I still believe we have some distance to travel. I beg to move.

[Lord Rosser]

I must say that I rather support the thrust of the points that the noble Lord, Lord Moynihan, has made. Later on, though not today, we will come to the amendment we have tabled about how regulations should be dealt with in view of the number of them that will be associated with the Bill.

I shall confine my comments now to the view of the Delegated Powers and Regulatory Reform Committee, particularly in respect of the issue in Amendments 9 and 10 where clearly there was a disagreement, with the Delegated Powers and Regulatory Reform Committee arguing that where there was a requirement to abide by the terms of what the Government described as “guidance”, and where there was a requirement that an applicant must do something of importance with that guidance for the regulations to be satisfied, it should in fact be subject to parliamentary scrutiny given its legal significance. The noble Lord, Lord Moynihan, has of course drawn attention to that point.

The Government seem less than enthusiastic about going down the road of the Delegated Powers and Regulatory Reform Committee on that issue. However, they did not actually address the point being made by that committee, which was the distinction between guidance that an applicant may take into account and guidance that an applicant must take into account in order for the regulator to be satisfied. Although I certainly support the thrust of everything the noble Lord, Lord Moynihan, said, I confine my specific comments to that point in the Delegated Powers and Regulatory Reform Committee report and invite the Minister to think again about what appears to be the Government’s rejection of it.

[Lord Fox (LD)]

My Lords, at this stage, I declare my financial interest in GKN and Smiths Group, both of which probably have some activity in the space industry, although I am not currently aware of it. I associate these Benches with the amendments and the overall thrust, which I am sure that the Minister is beginning to get, that there is considerable concern about the exercise of delegated powers. As the previous speaker mentioned, that will come up in a series of later amendments.

I defer in my knowledge to the noble Lord, Lord Moynihan, who is expert in these matters, but it is clear that we want to get the balance of affirmative and subsequent negative delegation right, and the excuse or otherwise that parliamentary time may not be available for the return of legislation is probably insufficient. Again, I hesitate to say this in front of the noble Lord, but safety is often dealt with by safety cases rather than a line by line, “You should do this, you should do that”, style of legislation. It does not require line-by-line scrutiny by government or Parliament.

With those points in mind, we associate ourselves with the amendments. We ask the Minister to review the Government’s position on delegated powers and are interested to hear how he stands on the amendments.

--- Later in debate ---

Moved by

[Lord Rosser]

22: Clause 14, page 10, line 16, at end insert—
“( ) The regulator may not consent to the transfer of a licence under subsection (1) unless the provisions in section 8(3) are met with regard to the licensee to which the licence will be transferred.”

[Lord Rosser]

Clause 14(1) states:

“A licence under this Act may be transferred with the written consent of the regulator”.


The Bill then appears to say little more of substance on this issue. It does not appear to set any considerations the regulator has to take into account before giving such written consent, nor does it appear to say to whom or to what a licence can be transferred or what licences are or are not able to be transferred. Clause 8(3) says:

“The regulator may not grant an application for a licence under this Act unless satisfied that … the applicant 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”,


or that,

“the persons who are expected to do, on the applicant’s behalf, any of the things authorised by the licence are fit and proper persons to do them”.

Amendment 22 seeks to ensure that the provisions of Clause 8(3) will also apply to the regulator when deciding whether to give written consent to the transfer of the licence.

An argument could be made for saying that the provisions of Clause 8(2) should also be included in this amendment, since presumably one would want the regulator to be satisfied in agreeing to transfer a licence that it would not impair national security, that it would be consistent with our international obligations and that it would not be,

“contrary to the national interest”.

However, this is Committee stage and I will wait to hear the Government’s response to the amendment as it stands.

On a more general point about the transfer of a licence, can the Minister set out for the record the circumstances in which a transfer might be considered necessary and those in which the Government would not expect written consent to be agreed? Finally, for the granting of a licence, the consent of the Secretary of State will also be required under Clause 8(4) if they are not the regulator granting the licence. That provision does not appear to apply if a licence is being transferred. If this is the case, why is that so?

[Lord Fox]

My Lords, I will be very brief. We welcome this probing amendment because this issue is very important. It is analogous in one sense to the potential for flagging out a particular enterprise. If the regulator is minded to allow a transfer of licence, what legal basis would there be for any enforcement of those licence agreements once they cease to be within the domain of this country? The second point is on the role of takeovers and acquisitions, where companies that own a licence and are within the remit of the United Kingdom are acquired and move beyond these shores for regulatory purposes. Perhaps the Minister can include those points in his answer as well.

[Lord Callanan]

My Lords, Clause 14 enables a licensee to transfer their licence to another party, provided that the regulator has given written consent. This provision enables a new body or company to take over the licence without starting a licence application afresh. In addition, the Bill requires that a licence holder has the necessary financial and technical resources, and that they are fit and proper persons, to do the things authorised by the licence.

Amendment 22 would ensure that the regulator would need to be satisfied that the new licensee met the requirements under Clause 8(3) before consenting to a transfer. I can confirm that it is our intention that the regulator will need to do this. Where the regulator is appointed under Clause 15, Clause 14(5)(c) requires them to consult the Secretary of State before consenting to a transfer. Thus the Secretary of State can ensure that they are satisfied that the new licensee meets the requirements under Clause 8(3).

The noble Lord, Lord Rosser, asked why the power to transfer a licence is necessary. The power avoids the need for wasteful bureaucracy that could affect businesses and local communities. For example, where a spaceport licence has been issued, it should not be necessary to demonstrate the suitability of the site again just because of a change of operator. However, the regulator would need to be content that the new operator met the eligibility criteria under Clause 8. Both the regulator and the Secretary of State would need to be satisfied that the transfer of a licence was appropriate, ensuring that there were the proper checks and balances in the system if that occurred.

I am confident that the amendment is not necessary but I will reflect on whether it is appropriate to make our intentions explicit in the Bill. On those grounds, I hope the noble Lord will feel able to withdraw his amendment.

[Lord Rosser]

I thank the Minister for his reply and the noble Lord, Lord Fox, for his valuable contribution to this debate. The Minister has indicated—at least I think this is a fair reflection of what he said—that he will reflect further on this issue. I would certainly have thought that if the transfer under Clause 8(3) will apply, it would be helpful if it said so. One would assume that the provisions of Clause 8(2) would also apply—that is, the parts about not impairing national security, being consistent with international obligations and not being contrary to the national interest. I take it from what the Minister said that he will indicate to us before Report whether the Government intend to make any amendments in the light of the amendment that I have moved.

I have a question on one point that I asked about at the end, which I appreciate is mainly a point of detail. For the granting of a licence, the consent of the Secretary of State is also required under Clause 8(4). If the regulator granting the licence is not the Secretary of State, is the intention that that would also apply in relation to a licence being transferred or is the Minister likely to come back on that when he has reflected further on the issues raised during this debate?

[Lord Callanan]

I will reflect on that and come back to the noble Lord on it.

[Lord Rosser]

I beg leave to withdraw the amendment.

Amendment 22 withdrawn.

--- Later in debate ---

Moved by

[Lord Rosser]

32: Clause 32, page 23, line 32, at end insert—
“( ) An enforcement authorisation must be referred to a justice of the peace for evaluation within 48 hours, following the 48 hour period under subsection (7) in which the enforcement authorisation remains in force.”

[Lord Rosser]

I have just about recovered from the shock of hearing the noble Lord, Lord Moynihan, refer to not being here for a much later amendment. I was rather hoping we would not get to that because it says here that the target for the day is to complete the group beginning Amendment 32, which is the group we are about to embark on. I sincerely hope that this is the last group we deal with today.

This amendment relates to a view expressed by the Constitution Committee in its report on the Bill published last month. Much of what I will say is lifted straight from that report. It points out that Clause 31 sets out an enforcement regime under which,

“a justice of the peace may issue an ‘enforcement warrant’ in certain circumstances if, for instance, there are reasonable grounds for believing that a person is carrying out spaceflight activities without a licence or in breach of licence conditions”.

The committee points out that:

“Enforcement warrants may authorise extensive powers, including powers to enter property and to use reasonable force. For urgent cases, an alternative regime is set out in clause 32. This allows the Secretary of State to grant an ‘enforcement authorisation’ if satisfied that the case is urgent and that relevant conduct or anticipated conduct gives rise to a serious risk (a) to national security, (b) of contravention of any international obligation, or (c) to the health or safety of persons. Such an authorisation permits a named person to do ‘anything necessary’ for protecting national security, securing compliance with international obligations or protecting health or safety”.


Even though the power conferred by Clause 32 is very extensive and broad, the Bill does not appear to lay down any,

“system of judicial oversight (either anticipatory or post hoc). The House of Commons Science and Technology Committee expressed concerns about this aspect of the Draft Bill”.

In its response to that committee, the Government said that:

“In line with the Committee’s recommendation, we have reduced the period for which an authorisation would be valid from one month to 48 hours. This limits the Secretary of State’s power and if a longer authorisation is required, it will be necessary to get a warrant from a Justice of the Peace under clause 31 (Warrants authorising entry or direct action)”.


The Constitution Committee went on to say that:

“The reduction in the time for which an urgent authorisation may apply is welcome. However, we are concerned that such wide-ranging and potentially draconian powers would be exercisable without anticipatory or rapid post hoc judicial involvement. We draw attention to these enforcement authorisations and call on the Government to consider post-hoc judicial approval of their use”.


Amendment 32 provides that an urgent enforcement authorisation under Clause 32 must be referred to a justice of the peace for evaluation within 48 hours, following the 48-hour period under Clause 32(7) of the Bill, during which the enforcement authorisation remains in force. I hope that the Minister will give a sympathetic and helpful response to this amendment and others in the group. I beg to move.

[Lord Fox]

My Lords, as the noble Lord, Lord Rosser, set out, Clause 32 as it stands offers strong powers to the Secretary of State in which there is no judicial involvement authorising the activities. I support Amendment 32 and will speak to Amendment 33. Those noble Lords who have read them will see that Amendment 32 is repeated by Amendment 33, which goes into more detail at some length, also taking into account the judicial systems of the countries of the United Kingdom.

As the noble Lord said, Clause 32 allows the Secretary of State to authorise the regulator to do “anything necessary”, which is a very dramatic—possibly cinematic—phrase, but we understand what it means. We can understand that there are times when moving quickly would be an issue, but this is not necessarily a block to judicial oversight. In contrast to the proposal in Clause 32, I point to the Investigatory Powers Act 2016 where warrants issued urgently by the Secretary of State, without advance approval by a judicial commissioner, must be approved by a judicial commissioner within three working days of the warrant. If it can be done in those circumstances, I suspect it can be done in those which we are talking about today. The Government have not offered sufficient justification for the wider scope of the powers offered in Clause 32, so Amendment 33 is based on provisions in the Investigatory Powers Act and ensures judicial scrutiny of any enforcement authorisations under that clause. In similar vein to the amendment in the name of the noble Lord, Lord Rosser, it calls for a 48-hour period through which a justice of the peace can be involved. Our amendment stipulates that, if an enforcement remains in force for 48 hours, a justice of the peace should offer authorisation within that time or the action would cease to exist. Furthermore, no future enforcement authorisations may be granted under Clause 32 in relation to the same incident.

Amendment 33 then goes on to spell out the roles of the courts in Scotland, Wales and Northern Ireland, and the detail therein. Overall, we would welcome strong support for this principle from the Government and some idea of how other judicial oversight will be added to what currently appears to be a very wide legal writ for one person in government.

[Lord Callanan]

I thank noble Lords for their consideration of the significant powers in this clause, which we recognise are significant. I hope noble Lords will allow me to take this opportunity to provide assurance that this important power, which will be used only when immediate action is necessary, is both proportionate and subject to sufficient safeguards.

Clause 32 confers on the Secretary of State the power to grant an enforcement authorisation in the most urgent cases, where there is a serious risk to national security, compliance with our international obligations or health and safety. In such emergency situations there may not be sufficient time to obtain authorisation from a justice of the peace under Clause 31. I assure the House that there are adequate safeguards in place. Such an authorisation can be granted only to a named person who the Secretary of State is satisfied is suitably qualified to carry out the necessary action. Each time this power is used the authorisation must be in writing, must specify the action required and will remain in force for only 48 hours from the time it is granted. As an additional safeguard, improper use of this power by the appointed person could be challenged by judicial review. It is worth noting that this power is more conservative and requires more stringent authorisation than other comparable powers of entry: for example, those for nuclear inspectors or health and safety inspectors who are provided with a standing authorisation and may act at their discretion. It is anticipated that this power would be used only in the most serious and urgent of cases where there can be no delay in taking action.

I turn to the amendments specifically. The need to find a justice of the peace to review an enforcement authorisation during the period of validity would impose unhelpful bureaucracy on the person authorised at a time when they are trying to take urgent action to protect people from serious risks. A review of an enforcement authorisation by a justice of the peace after the authorisation had expired would not serve any purpose since the power granted would have already been exercised. In addition, a review by a justice of the peace, whether while in force or afterwards, would place an unnecessary and disproportionate burden and cost on the judicial system, given the other safeguards in place. Moreover, appeal by the Secretary of State, which Amendment 33 provides for, may not realistically take place in time to enable the emergency action needed to address the serious risk in question.

I assure noble Lords that the Government are listening. We have taken on board comments from the House of Commons Science and Technology Committee and have reduced the time for which an enforcement authorisation remains in order from one month to 48 hours. The noble Lord, Lord Fox, asked why we have used the wording “to do anything necessary”. It would not be possible or appropriate to list possible actions that may be taken under an enforcement authorisation as this would restrict the scope of the authorisation. The action must, however, be necessary to protect the national security of the UK, secure compliance with the international obligations of the UK or protect the health or safety of persons. An enforcement authorisation will not be issued unless the Secretary of State is satisfied that the risk will be eliminated or mitigated as a consequence. Improper use of this power by the appointed person could be challenged by judicial review.

I understand the concerns of many noble Lords that this power is excessive. However, it is more restricted than other comparable powers of entry: for example, as I said, those for inspectors in the Energy Act 2013 or the Health and Safety at Work etc Act 1974. It is similar to those powers approved by Parliament in that there is no independent judicial authorisation before or after exercise of the power. The power in Clause 32 requires authorisation for each and every use, is in place only for a 48-hour window and cannot be used routinely at the discretion of the person who is authorised to enter. I am confident that our approach is proportionate and contains sufficient safeguards to address the concerns raised while retaining the flexibility necessary to deal with the very serious risks that this clause is designed to address. With the assurances that I have provided, I hope that the noble Lord feels able to withdraw Amendment 32.

[Lord Rosser]

I thank the Minister for his reply and thank the noble Lord, Lord Fox, for speaking to his amendment.

The Minister has produced various arguments but not surprisingly, because he probably cannot get into the mind of the Constitution Committee, he has not said why it was not moved by the kind of considerations that he has put forward. Clearly, that committee regarded this issue as something which could lead in extreme circumstances—at least, one hopes that it would be in extreme circumstances—to an abuse of power if there was no check after the event on whether the power under Clause 32 had been used appropriately and proportionately. My amendment sought to cover that, as did the view expressed by the Constitution Committee. Having a check that this power is not misused, which is what my amendment would provide, is a point that the Minister did not address in his reply. He referred to the difficulties of finding a magistrate or justice of the peace to do this within 48 hours, or at least I think he did. I think he will find that justices of the peace can be produced fairly quickly for a range of rather more minor warrants and issues, and well within the 48-hour period. Unless there is an issue over a Sunday, you can find justices of the peace at a magistrates’ court any day. If some sort of emergency measure needed to be undertaken—as it would in such a case—I imagine that the court would be prepared to co-operate.

The Minister mentioned costs. Frankly, if the Government are throwing at us concerns over costs as a reason for not having a check on whether a draconian power—the wording used by the Constitution Committee—is being used correctly or is being abused, we have reached a fairly sorry state of affairs. The Government must do a bit better than try to argue that this is unacceptable on grounds of cost, which I think was one of the points made by the Minister.

I will, of course, read Hansard and reflect on what the Minister has said but I come back to the point that this view has been expressed pretty strongly by the Constitution Committee, having seen the Government’s response to the House of Commons Science and Technology Committee. These are fairly draconian powers and it is desirable to ensure that those who exercise them know that there will subsequently be a check on whether they have been used appropriately or proportionately. That would help to ensure that they are not abused. However, in the meantime, I beg leave to withdraw the amendment.

Amendment 32 withdrawn.

Space Industry Bill [HL]

Lord Rosser Excerpts

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

[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.

--- Later in debate ---

[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.

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[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?

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Moved by

[Lord Rosser]

45: Clause 67, page 42, line 43, leave out subsection (6) and insert—
“(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.

--- Later in debate ---

[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.

Amendment 45 withdrawn.

Space Industry Bill [HL]

Lord Rosser Excerpts

Report stage (Hansard): House of Lords
Tuesday 14th November 2017 Lords Chamber

[Lord Moynihan (Con)]

My Lords, I declared an interest at the beginning of Committee and feel that that it is appropriate to do so again. I live in sight of Prestwick Airport, which has an active interest in the Bill and is an ideal site for the licensing of the first UK spaceport. I notice that my noble friend Lord Strathclyde, who was in his seat at the beginning of this debate, and my noble friend Lord Lang, who remains in his seat, have been very active supporters of the Ayrshire growth strategy and the interests of the airport in being so licensed.

I will focus briefly on paragraph (3) of the amendment: the importance of the Secretary of State laying,

“a report of the assessment before Parliament within one year of this Act passing, and once in each of the five calendar years following”.

Looking at the five items listed under new Clause 1(2). I think that the noble Lord, Lord McNally, would agree that the wider importance of collaboration not just with Europe but internationally is critical to ensure the economic success of the industry. I believe that a spaceport in the UK is a key development to unlock the potential for economic growth related to the space industry for the whole of the UK. As the first spaceport in Europe, it could be the catalyst for a whole new launch industry, and everything that flows from that. We will need to co-operate with Europe on all these areas if we are to achieve that objective. Grants of some £10 million here or there are frankly nothing compared with the huge development costs associated with this industry. I hope that the Government will be serious about getting involved.

At a time when my noble friend the Minister is looking to ensure economic growth during the Brexit period, and when significant infrastructure projects are being funded, surely a significant commitment to the spaceport is a sensible investment, and is small in overall terms. But it would be a major catalyst to ensure that this project happens, as would the ongoing relationship with Europe. I would be grateful if my noble friend could comment on this and recognise the vital importance of a significant, wide opportunity to bring together the vested interests in the economic success of this project—which, in addition to Europe, I would add are: a clear understanding of the range of trade and technical issues with the United States and the acquisition of funding required to deliver the spaceport and spaceflight operations. With that in mind, I hope that the Minister is looking at special-purpose vehicles rather than the straightforward grant process in order for operators to undertake activities and operations from the UK—in other words, to have a wide range of partners, including the Government and the Scottish Government but also private sector operations and organisations. Financial guarantees and an insurance cap will be absolutely essential.

I close by saying that we need a strong level of government support and a strong level of co-operation with Europe to achieve these objectives. This will be a highly competitive global market. I fear that we may have a hollow Bill, which might be a great exemplar of regulatory, legal and structural support—but if we do not address the issue I have raised, it will remain hollow. We as a country should not allow ourselves to miss this opportunity. If we do, we will be left with an Act of Parliament promoting an industry that never takes off.

[Lord Rosser (Lab)]

My Lords, we debated a similar amendment in Committee. The Government said in response that they would work to ensure that we got the best deal with the EU to support strong growth in the sector, but that they did not consider that including provisions related to the EU negotiations would improve the Bill or the support that the Bill, which is about regulation of UK space activities and suborbital activities, would provide to the sector. The Government went on to say that it would be damaging to the UK’s negotiating position with the EU if information on the potential economic consequences of leaving the EU was disclosed.

The difficulty the Government have is that their whole argument for bringing this skeletal Bill forward at this time—one year before discussions on the detailed and extensive secondary legislation start, and nearly two years before that crucial secondary legislation is considered by Parliament—is to end uncertainty for the space industry by showing that the Government intend to provide a structure for UK space activities and suborbital activities. Surely, however, part of the uncertainty at present is the impact our departure from the EU, and the terms on which we depart, will have on the UK space industry, and thus on investment decisions.

If the objective really is to remove uncertainty, as opposed to producing the Bill at this time to fill up the gaps in parliamentary business left by the Government’s almost non-existent legislative programme, why are they not prepared to reduce the uncertainty over the potential impact on the industry of our withdrawal from the EU by providing an assessment of what that impact could be? The amendment calls for a report of the assessment to be laid before Parliament within one year of the Act passing or on the day on which it is passed if that assessment has already been undertaken. Surely such an assessment would also be of real value to all the parties concerned when the discussions start on the crucial regulations that will provide the important details that are sadly missing from the Bill.

Once again, when discussions on the regulations start, why are the Government declining to provide the parties concerned with details of the not insignificant issue of the impact on the space industry and on the Bill as a result of our departure from the EU?

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Moved by

[Lord Rosser]

2: Clause 2, page 2, line 25, at end insert—
“( ) the effect on the environment and on local communities of activities connected with the operation of spaceflight activities or the operation of a spaceport as licensed under this Act;”

--- Later in debate ---

[Lord Rosser]

Amendment 2 is another amendment that we discussed in Committee. Currently, the Bill provides that the regulator must take into account,

“any environmental objectives set by the Secretary of State”,

when exercising the powers given to it under the Bill. Our amendment adds a wider environmental duty; namely, that the regulator must take into account,

“the effect on the environment and on local communities of activities connected with the operation of spaceflight activities or the operation of a spaceport as licensed under this Act”.

In other words, this consideration would not be solely dependent on what the Secretary of State of the day decided should or should not be laid down as environmental objectives for the regulator to take into account.

The Government were not enthusiastic about our amendment in Committee, arguing that environmental and local community considerations were already covered by the provisions of Clause 2(2)(c) and (e) and local planning processes. However, the Government appeared to accept that a person with exemption from an operator licence would not be covered by some of the provisions of Clause 2(2) since the regulator would not be involved in issuing a licence.

The importance of taking into account the effect of spaceflight activities and the operation of a spaceport on the environment and local communities needs to be made much clearer in the Bill. It is too important an issue to be left open to potentially different interpretations of the less than precise wording currently in the Bill or to the whim of Secretaries of State as to what environmental objectives they decide to set or not to set. I expressed the hope in Committee that the Government might feel able to be more positive on this issue during the Bill’s later stages. In moving my amendment, I hope that the Minister will be able to indicate some movement on this point when she responds.

[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.

Amendment 2 withdrawn.

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[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.

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[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.

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[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?

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[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.

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Moved by

[Lord Rosser]

14: Clause 32, page 23, line 32, at end insert—
“( ) An enforcement authorisation must be referred to a justice of the peace for evaluation within 48 hours, following the 48 hour period under subsection (7) in which the enforcement authorisation remains in force.”

[Lord Rosser]

Once again, a similar amendment was discussed in Committee. Clause 31 provides for a justice of the peace to be able to issue an enforcement warrant authorising entry or direct action in relation to the irregular or unauthorised carrying out of,

“spaceflight activities, operating a spaceport or providing range control services”.

Clause 32 provides for such enforcement authorisation to be given by the Secretary of State in an emergency where there are safety, national security or contravention of international obligation considerations at stake, and urgent action is needed. Such an enforcement authorisation would remain in force for 48 hours from the time when it was granted and would permit a named person to do,

“anything necessary … for protecting … national security … securing compliance with … international obligations”,

or protecting health and safety. However, despite these wide-ranging powers there is no provision in the Bill for any judicial oversight, as there is with the involvement of a justice of the peace in respect of an enforcement warrant in a non-emergency situation.

The House of Lords Constitution Committee has expressed its concerns on this point. The committee said that,

“we are concerned that such wide-ranging and potentially draconian powers would be exercisable without anticipatory or rapid post-hoc judicial involvement. We draw attention to these enforcement authorisations and call on the Government to consider post-hoc judicial approval of their use”.

This amendment would provide for an enforcement authorisation to be referred to a justice of the peace for evaluation within 48 hours, following the 48-hour period to which I have already referred and for which the enforcement authorisation remains in force.

In Committee the Government said they felt their approach was proportionate and contained sufficient safeguards to address the concerns raised while retaining the flexibility necessary to deal with the serious risks that the enforcement authorisation process was designed to address. I said in Committee that I would reflect on what the Government had said. I have done so; I hope the Government have done likewise and reflected on what was said during the debate, including the following points.

First, the Constitution Committee did not feel moved by the Government’s arguments, including on reducing the period of the enforcement authorisation to 48 hours. Secondly, there is no check to ensure that the draconian powers given under Clause 32 have not been abused—and, if there is no check and they have been abused once, it is highly likely that they will be abused again. Thirdly, the argument used by the Government in Committee about the alleged bureaucracy of having to find a justice of the peace is just not credible; and, fourthly, the Government’s argument in Committee that a review by a justice of the peace would place an unnecessary and disproportionate burden and cost on the judicial system really is clutching at straws. Perhaps the Government, if they are not going to change their stance, can tell us what the costs would be and how they would measure incurring those minimal costs against the abuse of the draconian powers provided for in Clause 32.

I hope that the Government will be able to say something helpful in reply and will go beyond reiterating the arguments they advanced in Committee, which clearly did not address the concerns of the Constitution Committee. I beg to move.

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[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.

Amendment 14 withdrawn.

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[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.

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[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.

[Lord McNally]

Amendment 35 shows that some fertile minds have been at work since these issues were raised. Therefore, while I welcome the amendment, I suggest that the Minister puts those same fertile minds to work on Amendment 33A; then we might have an equally happy outcome at Third Reading.

Space Industry Bill [HL]

Lord Rosser Excerpts

3rd reading (Hansard): House of Lords
Tuesday 28th November 2017 Lords Chamber

[Lord McNally (LD)]

My Lords, this amendment is the result of unfinished business at the end of Report. Basically, there has been an argument throughout this Bill, and there will be in other Bills that come before us, about the worrying nature of the use of secondary legislation that is vaguely promised and vaguely described in primary legislation. In this respect, Clause 67(1), which is vaguely written, refers back to Clause 1(1) which again makes vague commitments. The amendment merely suggests that there should be crisper and more tightly drawn references which avoid blank cheques and abuse of secondary legislation.

I do not intend to press this to a vote this afternoon, but to leave it as a bit of business still to be considered. The other place will need to look at it, because it should be as worrying to them as it is to this House.

I put on record my appreciation for the removal from the Bill of the Henry VIII clause, and I hope that will be a guide for other Bills that are coming before us. I am very grateful to the noble and learned Lord, Lord Judge, who is not in his place, who has made it quite clear that Henry VIII clauses were to be avoided, and that this example of putting in Henry VIII clauses and vague “blank cheque” secondary legislation was a problem that needed to be addressed. That is not to deny the fact that we also need to be able to future-proof Bills as best we can, particularly a Bill such as this. It is a matter of getting the balance right between future-proofing and ring-fencing them in terms of the powers that we write in.

As the noble and learned Lord, Lord Judge, emphasised in his lecture at King’s College in 2016:

“This is not an attack on delegated legislation”.


However, in that lecture he quoted one of his distinguished predecessors as Lord Chief Justice—Lord Hewart—who, in 1929, warned against,

“the increase of bureaucratic, departmental authority over the citizen”.

The moving of power from Parliament to the Executive is one of the ironies of the Brexit process.

We believe that if we do not heed the warnings of the noble and learned Lord, Lord Judge, and others, we face a constitutional car crash. At the very least, future-proofing should be tightly drawn. The super-affirmative process should be used where necessary, as should sunset clauses. I believe that we need to look at the case for making certain types of secondary legislation amendable by both Houses. That is the thinking behind this amendment—a billet-doux to send down the Corridor to the other place. I beg to move.

[Lord Rosser (Lab)]

I assume that when she comes to respond the Minister will talk about the wording of the amendment and, if she is not going to accept it on behalf of the Government, will indicate why it is not acceptable. Therefore, my brief comments and questions are based on the assumption that she will talk about the wording of the amendment and what it would mean if it were included in the Bill, because obviously I share the concerns that have been expressed. I hope that if the Minister is not prepared to accept the amendment on behalf of the Government, she will at least indicate a willingness to reflect further on this matter prior to its being considered in the House of Commons.

In her response, perhaps the Minister could say what the Government envisage they might want to do through regulations under Clause 67(1) as it stands that they consider they would not be able to do through regulations under Clause 67(1) if it were amended in line with this amendment. Or, to put it the other way round, what do the Government consider they would not be able to do that they might want to do through regulations under Clause 67(1) amended in line with this amendment that they would be able to do through regulations under Clause 67(1) as it stands?

[The Parliamentary Under-Secretary of State, Department for Transport (Baroness Sugg) (Con)]

My Lords, we debated this issue extensively in Committee and on Report, and I regret that I have been unable to convince noble Lords of the necessity of this provision as drafted.

The wording of the clause—which is why we are keen to include it rather than the amendment put forward by the noble Lord, Lord McNally—is consistent with that contained in Section 60(2) of the Civil Aviation Act 1982, the latter being a power to do anything,

“generally for regulating air navigation”.

A similar power arises under Section 11(1) of the Outer Space Act 1986 to enable the making of regulations generally for carrying that Act into effect. That is why we put forward the wording that we did in the Bill.

As noble Lords are well aware, there are a number of other regulation-making powers in the Bill, notably around security and safety. However, we need to ensure that we can regulate those wider matters relating to spaceflight and associated activities carried out in the UK that are not covered by the other powers. For example, this may include implementation of our international obligations relating to spaceflight arising from bilateral or multilateral treaties. We know from our experience in other sectors, such as aviation, that despite our best efforts there needs to be the flexibility to deal with any unexpected circumstances. The Government therefore remain convinced that this provision, as currently drafted, is needed to ensure that all aspects of the Bill can be fully implemented effectively.

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[Baroness Sugg]

My Lords, I thank all those involved for their interest in, engagement with and scrutiny of the Bill over the past few months. The UK space industry is a British success story—a story of invention, innovation and global ambition. The Bill will take us further, enabling new satellite launch services and low-gravity spaceflight from UK spaceports, and supporting our industrial strategy to deliver a stronger economy that works for everyone.

I thank my predecessor, my noble friend Lord Callanan, who took the Bill through its early stages, and I thank the noble Lords, Lord Rosser, Lord Tunnicliffe, Lord McNally, and Lord Fox, and the noble Baroness, Lady Randerson, who provided rigorous scrutiny throughout this process. I am grateful for the contributions of my noble friend Lord Moynihan; I, for one, will miss the strong advocacy for a certain location in Scotland. Finally, I thank policy officials and lawyers from the UK Space Agency, the Department for Transport and the Department for Business, Energy and Industrial Strategy for their work on the Bill.

It has been a privilege to debate the Bill with noble Lords, whose knowledge and expertise I have found incredibly helpful. We have taken on many of the recommendations of the DPRRC and the Constitution Committee, and I thank them for their work. The constructive engagement, conversations and debates we have had together have led to significant improvements to the Bill. This is an example of this House at its best, where proper scrutiny and challenge can—put simply—lead to a better Bill. Today, therefore, we stand one step closer to a new commercial space age, and I beg to move.

[Lord Rosser]

My Lords, I take this opportunity to thank the noble Lord, Lord Callanan, the Minister and the Bill team for their willingness to consider the points we have raised about the Bill during its passage through this House. A number of meetings have been held, which we appreciated, and we welcome the changes the Government have been prepared to see made to the Bill as a result.

I also thank my noble friend Lord Tunnicliffe for—I was going to say “his advice and support” but the reality is that it has been infinitely more than that. I also thank Grace Wright in our office for all the hard and vitally important work that she has done for us on the Bill.