Space Industry Bill [HL]

Baroness Sugg Excerpts

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

[Baroness Neville-Rolfe (Con)]

My Lords, I am sorry that I was unable to speak at Second Reading on this important Bill, but I have had a helpful exchange with the Minister on the powers in it and his plans for consultation in future.

Following on from the comments made by my noble friend Lord Moynihan, I have a question and a comment. First, he argued for parliamentary procedure in relation to guidance. I would find it helpful to have a little more detail as to what sort of guidance is envisaged, so that we can look critically at whether any parliamentary procedure is appropriate. Secondly, I share his concern at the double barrel—having an affirmative resolution for the first regulation and a negative resolution for subsequent provisions—because it could be open to abuse and give too much power to the Executive on important matters. I would welcome further study of this provision, as has been suggested, before Report.

I am worried about the powers in the round—in this Bill and the Data Protection Bill—and I think that delegated legislative provisions will also become an issue when we come to the plethora of Brexit Bills later in the Session. It would be very useful, in this less contentious Bill, to make sure that we have the right provisions.

[Baroness Sugg (Con)]

I thank my noble friend for allowing me the opportunity to explain the Government’s approach to statutory guidance under the Bill. I also thank him for his work on this Bill and for his role in the Delegated Powers and Regulatory Reform Committee. As he said, the Government have taken on board many of the recommendations of that committee, following its scrutiny.

The purpose of guidance is to aid policy implementation by supplementing the legal framework. It is not intended to circumvent this legal framework set out in primary or secondary legislation. The main benefit of the guidance is the flexibility to amend quickly and take account of changing events. For example, recently with Monarch Airlines, the CAA had to provide extensive guidance about passenger consumer rights under the ATOL scheme. This included what protections there were for consumers and how they could go about making an ATOL claim. This guidance had to be produced very quickly to support those impacted by the airline’s failure, and it is a clear demonstration of the flexibility of having guidance not made in regulations.

I should add that the approach we are taking under the Bill is consistent with that in aviation. Various standards, technical information and information regarding best practice can change annually. It would be difficult to keep up with changes if the guidance had to be approved by Parliament every year. There are parallels, too, with the approach taken on health and safety and other technical sectors. For example, in the nuclear sector, guidance sets out how people can comply with the requirements imposed by the Nuclear Installations Act 1965.

I assure noble Lords that the Government’s approach to the statutory guidance will be transparent. The initial sets of statutory guidance will be consulted on to allow scrutiny and comments from anyone with an interest. Where the guidance relates to regulations we will consult on it at the same time as consulting on the draft statutory instruments. Perhaps it might be helpful, in response to the questions from my noble friends Lord Moynihan and Lady Neville-Rolfe, if I set out what we believe the split to be between the regulations and the guidance under the Bill. There may be matters on which the regulator does not wish to prescribe a particular way of working but wishes to help operators with guidance. For example, in relation to safety assessments, the regulator will be primarily interested in the outcomes rather than prescribing specific processes or methodologies. That is in line with best practice in health and safety where regulations will set out what must be taken into account and the requirements to be met in carrying out a risk assessment. Guidance will recommend a certain approach to carrying out that risk assessment.

The noble Lord, Lord Rosser, raises the point around the DPRRC recommendation on Clause 9. As I have already mentioned, the purpose of the guidance is to support the implementation. The recommendation in this case focuses on the need for parliamentary scrutiny of guidance given by the Secretary of State to the regulator. We believe that we need the flexibility for guidance to the regulator as well as for guidance to other persons. In aviation, for example, the CAA is required to take account of the guidance on environmental objects when carrying out its air navigation functions.

As my right honourable friend in the other place John Hayes said in his letter in response to the Committee, the initial guidance on this clause will be subject to a full consultation to enable scrutiny and comment from all those with an interest. Obviously this is an area of considerable interest in the Chamber, and we will certainly reflect on all the points made today. Given these assurances, I ask my noble friend to withdraw Amendment 5.

[Lord Moynihan]

I am very grateful to my noble friend for her response. She cites the case of Monarch and passenger and consumer rights in the guidance. Of course, that had legal significance. The point that I am making here is that, given the way in which the Bill is drafted, there are some areas where there is no legal significance behind the guidance. Indeed, it is very interesting that some of the provisions allow the Secretary of State or the regulator to issue guidance but do not require the recipient to have regard to the guidance at all. I cite Clauses 7(7), 17(3), 18(3) and 22(3) in that context.

Given my noble friend’s very helpful response, it would be worth just taking this away and making sure that the appropriate scrutiny by both Chambers is in place, and that the argument for guidance to have legal significance is taken into account, particularly in the context of her example about the demise of Monarch Airlines. She makes the very important point, as was made from the Liberal Democrat Benches, that safety methodologies are not what is being looked for; rather, it is safety outcomes, because safety cases are critical. I well recall, as Energy Minister in another place, that being the key point made in the Cullen report following the horrific Piper Alpha disaster in the North Sea. We are not looking here for detailed methodologies to be placed on the face of the Bill. Where safety is a matter of concern, we are looking for the appropriate scrutiny by both Houses to ensure that the guidance given has legal significance and that there is an appropriate parliamentary procedure in place to consider the proposals made by either the Secretary of State or the regulator.

My noble friend said that she would have a good look at this, which I appreciate. She will have heard the support from across the House to ensure that this was appropriately reflected in the Bill. With that in mind at this stage of the Bill’s proceedings, I beg leave to withdraw the amendment.