Air Traffic Management and Unmanned Aircraft Bill [HL]

Lord Craig of Radley Excerpts

Committee stage & Committee: 2nd sitting (Hansard): House of Lords & Committee: 2nd sitting (Hansard)
Wednesday 12th February 2020 Lords Chamber

Moved by

[Lord Craig of Radley]

24: Schedule 8, page 64, line 9, leave out “controlling” and insert “in control of or has operation of”
Member’s explanatory statement
Probing amendment regarding whether an unmanned aircraft flying automatically on a pre-programmed route is the responsibility of its operator, even when it is not being manually controlled at the time from the ground.

[Lord Craig of Radley (CB)]

My Lords, I shall speak also to Amendment 26. These are probing amendments about the phrase, in lines 8, 6 and 16 on page 64,

“the person is controlling the unmanned aircraft”

and seek the Minister’s response to a query I raised at Second Reading as to whether it would encompass all instances concerning an airborne unmanned aircraft where a constable required a person to ground it. As unmanned aircraft and drone technology advances, there may be pre-programmable types that, once airborne, will no longer be under active control from the ground.

As we advance into 5G, it might be possible for two or more individuals to have apps on their smartphones able to handle more than a single drone and passing control of them from one person to another. On a bigger scale, and as we know, this is what happens now when RAF operators controlling an RAF Predator UAV in the air over Syria from their base station in the United States pass monitoring and control to another operational team at RAF Waddington in the UK. Such control-sharing activity, scaled down, must be widely available soon, if it is not already.

With an app on a smartphone, I and many others can already turn lights or other devices on or off in our home at any time and from anywhere in the world with a wi-fi link. It will surely be possible for AN Other on the ground to switch from one UA onboard programme to another with just a smartphone. Noble Lords may have further suggestions of how and in what way drone and other unmanned aircraft capabilities will advance.

My amendment seeks to probe whether the present wording of Schedule 8, about an individual “controlling”, is sufficiently embracing to meet present and future possibilities of unmanned aircraft operational misuse that a constable wants to stop. The amendment would cover more than in-hand control while airborne, which smacks merely of attempting to deal with the single hobby-type user. Until an incident has been investigated, it may not be clear whether the operator is just a lone nuisance type, as may have happened at Gatwick, or a member of some terrorist team with advanced technology at their disposal. In other words, is the present wording of the Bill sufficiently comprehensive for a constable to act to cover all types of possible future operation that could be unlawful? Indeed, what should the constable be required to do if the operator is not physically controlling the flight of the UA? Perhaps this, too, needs to be covered for completeness, for I doubt that even my amendment would be adequate.

This is my second amendment and, as I mentioned, it is purely probing, to seek a response from the Minister to my concern that the present phrasing may be overly restrictive and so inadequate. I beg to move.

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[Baroness Vere of Norbiton]

My Lords, I thank the noble and gallant Lord, Lord Craig of Radley, for introducing this small group of amendments and giving us the opportunity to probe this wording, because it is incredibly important that we understand that the wording is fit for purpose. While I understand the intention behind his amendments, after careful consideration the Government believe that the existing wording in paragraph 1 of Schedule 8 regarding a person or persons controlling an unmanned aircraft is fit for purpose in relation to both manual and pre-programmed operations.

On Amendment 24, regarding the power for a constable to require a person to ground a UA—unmanned aircraft—a constable could exercise this power in relation to a UA performing a manual or pre-programmed operation if they had reasonable grounds for believing a person or small group of persons to be controlling that aircraft. Where this reasonable belief exists, the constable could require a person to ground the UA regardless of whether it was pre-programmed or not— hence the existing wording is sufficient for the power to be effective in the circumstances envisaged by the noble and gallant Lord.

A similar issue arises in Amendment 26; again, “controlling” refers to the UA when it is being flown either manually or in a pre-programmed mode if it is capable of that. It is therefore our view that the distinction that the amendment seeks to make would have no discernible benefit, since the description implies a person controlling a UA in line with the existing wording in the Bill. However, the Government recognise that UA technology is constantly evolving, and we will continue to keep our policies under review to ensure that they remain fit for purpose.

On the point made by my noble friend Lord Glenarthur about helicopters and pipelines, he is quite right that unmanned aircraft will increasingly be used for tasks such as patrolling pipelines, railways and all sorts of other things. However, under the current regulations drones should not fly over 400 feet and must remain within line of sight—to go beyond line of sight is against the regulations. They must have permission to do either of those two things. To get that permission, one would assume that those operating the helicopter would be aware that there might be drones operating in that area.

On the point made by the noble Lord, Lord Berkeley, about identifying the person, the constable must have a reasonable suspicion that the person is controlling the unmanned aircraft. That is not infallible, but a reasonable suspicion is not certainty. Therefore, given that the drone must remain within line of sight, a person will probably be able to be seen.

I hope that, based on this explanation, the noble and gallant Lord will feel able to withdraw his amendment.

[Lord Craig of Radley]

I thank the Minister for her reply, which I shall obviously want to look at. I am still left very unclear about the depth of thought that has been given to this. She talks about situations where somebody is obeying the law and this does not matter, but I am concerned about the individual who is not obeying the law—who is flying above 500 feet and beyond sight of their drone. It seems to me that more is required than is presently available in the Bill—but at the moment I beg leave to withdraw my amendment.

Amendment 24 withdrawn.

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[Lord Craig of Radley]

I will speak to my probing Amendment 27 and to Amendment 30. I follow the strong words that we have just heard from the noble Lord.

As I and many others stressed on Second Reading, the risk of a mid-air collision involving unmanned aircraft being operated illegally is very serious and even catastrophic. It would be remiss not to reflect the seriousness of that danger in the punishment awarded. Indeed, it might also be worth considering whether some form of third-party compulsory insurance should be acquired by all operators of unmanned aircraft.

The misuse of an unarmed aircraft should be liable not only to a fine, or imprisonment if the misuse were to be catastrophic, but should invariably include the forfeiture of the unmanned aircraft and its associated kit for any misuse that falls outside a single instance of the fixed penalty range of misbehaviour. A deterrent to misuse before flight is of potentially greater value than just a monetary punishment as the result of an airborne offence. Even in the fixed penalty range of misuses, a persistent offender should face the risk of forfeiture, or at least confiscation for a period of time.

It is too early to delve deeply into the secondary legislation that will introduce the fixed penalty arrangements. However, as with fixed penalty notices for car drivers, is it intended that a points system will be set up, so that an individual who repeatedly offends and amasses a number of penalty points within a set time will then face the confiscation of their unmanned aircraft and associated kit, either completely or at least for a period of time as the consequence of their repeated misbehaviour? The deterrent value of such a scheme is well worth considering, although I recognise that the administrative details for it will need careful thought and could even be deemed excessive.

[Lord Naseby]

My Lords, I would like to speak in support of Amendment 25, and again, I had hoped to see my name attached to it. I am not sure whether the Committee fully appreciates the sheer scale and numbers that we are dealing with. My judgment, as someone who has been keeping some track of what is happening, is that probably 2 million drones have now been sold and presumably are being flown. I have had the privilege of serving on the Public Accounts Committee with the noble Lord opposite, and on a number of occasions he and I would probe into issues in depth. I therefore say to my noble friend on the Front Bench that the probing which the noble Lord has done should be listened to and assessed very carefully.

Yesterday I went to a briefing on the importation of illegal tobacco. I have never smoked so I have no real personal interest other than ensuring that the revenue that should legitimately go to Her Majesty’s Government does so. There is little doubt that the people behind the illegal importation of tobacco are incredibly creative and show enormous genius, with the result that huge quantities are coming into this country. Allied to that is illegal drug importation, to which the same applies. I have just renewed my shotgun licence. The police are exceedingly careful about the renewal of such licences, not least by those of the older generation, in which I put myself. I am not surprised about that. The police checked thoroughly into where the guns are kept and whether they are properly locked away, and that we had security arrangements to ensure that if someone did break in, alarms would be set off.

We are absolute beginners in this field of activity and its implications. My friend the noble Lord on the Benches opposite is right to say that we are dealing with the rogue element but—as I have demonstrated by giving just two examples in drugs and illegal tobacco importation, and there are others—the rogue element is there in great profusion. Moreover, drones themselves provide a wonderful facility for illegal importation activities. Even if my noble friend on the Front Bench is not able to accept the wording of the amendment, I hope that she will think about it seriously and possibly come back at Report either to accept it or to table it with some minor modifications.

I will say to noble Lords that if we do not take action at this point in time, we will rue the day.

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[Baroness Vere of Norbiton]

If the noble Lord will bear with me, that drone would probably be confiscated by a constable for a different reason.

In our opinion, the amendment on forfeiture would also provide a potentially disproportionate penalty for those who commit most likely very minor offences of failing to ground an unmanned aircraft when asked to do so by police, or failing to comply with a constable’s request to inspect that small unmanned aircraft. While we feel that it would be disproportionate to insert these powers of confiscation and forfeiture regarding these two offences, it should be noted that the police have powers of confiscation elsewhere in the Bill and already in law.

Under the Bill, the police will have the power to stop and search a person or vehicle where they have reasonable grounds to suspect they will find an unmanned aircraft that is or has been involved in the commission of one of the offences specified in paragraph 2 of Schedule 8. This is for more serious offences, such as interfering with aircraft. This stop and search power gives the police constable the power to seize anything they discover in the course of a search if they have reasonable grounds to believe it is evidence relating to one of those offences.

The summary of all the stop and search offences was given out at the all-Peers meeting and I am very happy to send round this ready reckoner, which shows which offences fall under stop and search if there is suspicion of them. They are, for example, flying above 400 feet or within an exclusion zone of an airport. If there was a stop and search in that case, that item could be seized as evidence. Similarly, when entering and searching a premises under warrant using the powers in the Bill, a constable might seize an unmanned aircraft or any article associated with it if they have reason to believe it has been involved in the commission of one of the offences set out in paragraph 7 of Schedule 8.

[Lord Craig of Radley]

The noble Baroness said the constable has the power to seize, but has he powers to retain and make forfeit, or would it be just a temporary seizure until such time as the courts had dealt with the circumstances? The point of my amendment, and I believe that of the noble Lord, Lord Campbell-Savours, is that of a deterrent for illegal use. Seizure or forfeiture would be a very good deterrent. As we mentioned earlier, we are dealing not with people who are behaving and who we are trying to encourage to grow their legal use of drones, but with people who might be or are operating them illegally. Those are the people I want to deter.

[Baroness Vere of Norbiton]

The noble and gallant Lord makes a very interesting and valid point about deterrence, which is probably quite separate from the line I sought to convince him of. Noble Lords have mentioned that a very good drone might cost, say, £500, but the penalties we are talking about for some of the offences that could have been committed are fines up to a maximum of £2,500.

[Baroness Vere of Norbiton]

If, indeed, they are paid, which I will come on to—perhaps in the letter—because there are some very significant deterrents. If we are after a deterrent, we have those deterrents. Do we feel it is proportionate for property to be forfeited for fairly minor contraventions? We do not.

[Lord Craig of Radley]

I am sorry to interrupt again, but on a minor thing, as I said in my opening remarks a single misbehaviour under what would be a fixed penalty notice would not be a cause for forfeiture, but repeated misbehaviour that might individually be at the level of the fixed penalty notice should be taken into account. That is why I suggest that, under those circumstances, forfeiture, at least for a period if not completely, should be part of that penalty.

[Baroness Vere of Norbiton]

The noble Lord makes an interesting point. I suspect that in those circumstances, the person would just go out and buy another drone. We are between a rock and a hard place: drones are not so expensive that forfeiture is a huge issue, versus a fixed penalty notice, which may also be significant. We do not feel that forfeiture would make a significant difference to the deterrents. The penalties already in place are good ones. However, for the sake of completeness, I will mention that under current law, if a person has refused to ground their unmanned aircraft and has been arrested for an offence, the police officer has the power, under Section 32 of the Police and Criminal Evidence Act 1984, to search the arrested person and to seize anything that is evidence.

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[Baroness Vere of Norbiton]

I am aware that that is the noble Lord’s position, but I am not sure that evidence exists that if confiscation becomes part of the Bill, it automatically means that nothing bad will ever happen to drones—or that it will make any difference at all—given that the penalties are already far higher than the cost of a drone.

[Lord Craig of Radley]

I come back to the point that the purpose is its deterrent value. It would also have a public relations value. Rather than telling the owner of a drone that he or she may not fly it in a particular way, confiscation would have a deterrent value. This would encourage good behaviour and be a public relations exercise to show that the Government are taking seriously the possibility of a catastrophic accident if a drone were to hit a civilian airliner.

[Baroness Vere of Norbiton]

I agree with the noble and gallant Lord. The Government obviously take seriously the potential of a catastrophic accident. For those kinds of offences, the deterrent is far greater than having one’s drone taken away: it is a lengthy prison sentence and an unlimited fine. I remain unconvinced at this time that the confiscation or forfeiture of a drone is an additional means of deterrent.

I am trying to think of an example of an item being forfeited purely to provide that kind of deterrent effect. I will ask my officials to look at the issue and perhaps that will produce more convincing evidence.

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[Baroness Vere of Norbiton]

What I said about Gatwick is that there is no silver bullet; there was not one piece of legislation that would have stopped Gatwick.

[Lord Craig of Radley]

As a result of what happened at Gatwick, steps have been taken. So, it is not a case of just legislation stopping or not stopping it. Additional measures have been taken which make it less likely that the problems at Gatwick will arise again. At least, I hope that is the intention of the steps that have been taken.

[Baroness Vere of Norbiton]

The noble and gallant Lord is right; a number of steps have been taken. On the legislative side, we have looked carefully at what we can include. One of the steps taken as a result of Gatwick is that we asked CPNI to step up its work on counter-UAV technology and it has been carrying out tests. It did a call-out to industry; industry sent it whatever it had in detect, track and identify technology; and CPNI has been methodically working its way through it to see whether the technology works. Some of it does not.

We are looking carefully at providing a catalogue for airports to say to them, “This is the technology that works. We at CPNI, since Gatwick, have checked this technology and it works.” Those are the kinds of things we have been doing.

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[Lord Balfe (Con)]

My Lords, I offer my apologies as I was not able to be here for Second Reading, which I know traditionally one is before one speaks. I draw noble Lords’ attention to my entry in the register, which lists me as the president of BALPA, an office that I am very pleased to fulfil.

I support the points made by the noble Lord, Lord Whitty. These are basically safety amendments. We are looking for a positive statement from the Government, which I am sure will be forthcoming. Amendment 33A, as the noble Lord has said, is about the safety features being inoperable. We are particularly concerned if they are disabled deliberately. Of course, sometimes they are inoperable because they just do not work but on other occasions they can be deliberately disabled, and clearly that should not be allowed.

Amendment 33B says a single person can operate only a single drone at any one time. That we see as a matter of basic safety, and we hope it will find favour. On Amendment 33C, as the noble Lord has said, regulations concerning drugs and alcohol are fairly common in industry and in all these situations. I hope the Minister will feel able to give a positive response to the amendments and read into the record the Government’s support for at least the intention of what we are seeking to do.

[Lord Craig of Radley]

My Lords, I too support the thrust of these three amendments. On the first of them I would need to be quite clear, though, whether the requirements of particular safety features are a legal requirement. If they are not, I believe that they should be; but I assume that they are, which is why they are mentioned in this way. I also note in passing that the phrase

“in charge of a small unmanned aircraft”

is used. We have been talking about various ways in which those aircraft are managed. Is there somebody controlling them or are they being operated? For the sake of clarity, if we are going to use a word such as “controlling”—or any other word—it should be part of the legislation to define what is meant by the phrase or phrases that are used in it.

The amendment regarding one single unmanned aircraft could be restrictive but, to start with, that is perhaps the right way to go—not to immediately talk about allowing two or more, or even a swarm, of small unmanned aircraft to be flown. In passing, if such an arrangement were allowed would the collective weight of the swarm be taken into account, rather than just the weight of an item within that swarm? That could affect it, bearing in mind the weight limitations that are already in legislation.

On the point of the third amendment, alcohol, I know that the Minister talked about alcohol in the letter that she wrote. She said that if it were necessary, it would be a matter for an air navigation order because alcohol and drugs are of such significance in the safety of aviation. The Explanatory Notes refer to anybody fulfilling an aviation function, but surely the operator or controller—the man, woman or child in charge of a small, unmanned aircraft—is performing an aviation function. The Railways and Transport Safety Act 2003 seems a very appropriate place for alcohol and drugs to be covered, rather than leaving it to an air navigation order.

[Lord Kirkhope of Harrogate (Con)]

My Lords, I add my support for these amendments, particularly Amendment 33C. Perhaps my noble friend the Minister needs to go no further than to look at the provisions and requirements in the armed services for those who are engaged in the use of drones. Although the rules here will presumably apply to civilians, those provisions are sensible in regard to the questions of alcohol and drugs, and of control. Maybe she could find the precedent that she needs if she looks at the service agreements for those involved with operating drones in the services.