Air Traffic Management and Unmanned Aircraft Bill [HL]

Lord Rosser Excerpts

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

Moved by

[Lord Rosser]

28: Schedule 8, page 66, line 24, at end insert—
“Annual statement on stop and search demographics
2A(1) The Secretary of State must, at the end of the period of 12 months beginning on the day this Act is passed, lay before both Houses of Parliament a statement setting out how many times the police have exercised the stop and search powers under paragraph 2 of this Schedule.(2) The statement must include a list of each incident broken down by protected characteristics of each person searched, as defined in section 4 of the Equality Act 2010.(3) The Secretary of State must lay before Parliament a report in similar terms covering each subsequent 12 month period, within six months of that period ending.”Member’s explanatory statement
This amendment would require the Secretary of State to publish details of the demographics of those who have been stopped and searched.

[Lord Rosser (Lab)]

My Lords, there are three matters in this group: Amendments 28 and 29 and whether Schedule 8 should stand part of the Bill. I shall address Amendment 28. Paragraph 2 of Schedule 8 sets out the powers of a constable to stop and search persons or vehicles and includes the conditions that have be met in order to do so. This amendment would require the Secretary of State to publish details of the demographics of those who are stopped and searched. The purpose of the amendment is to find out what the Government intend in this regard.

The amendment refers to the Equality Act 2010 and the nine protected characteristics: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race, religion or belief; sex; and sexual orientation. At Second Reading the Government said that stop and search demographics would be available for those subject to a stop and search under these powers, and that

“they will be published by the Home Office in the usual way.”—[Official Report, 27/1/20; col. 1295.]

What does “published by the Home Office in the usual way” mean in relation to this amendment and the nine protected characteristics under the Equality Act 2010?

How did the Government come to the decision to enact these stop and search powers under Schedule 8? In autumn 2018, the Home Office ran a public consultation on

“Stop and Search: Extending police powers to cover offences relating to unmanned aircraft … laser pointers and corrosive substances.”


The Government indicated in the Explanatory Notes to the Bill, if I have read them correctly, that responses to the consultation were broadly unsupportive of proposals relating to unmanned aircraft, with many respondents feeling that the intrusive nature of stop and search powers would be disproportionate to the likely threat.

Since that consultation, we have had the incident at Gatwick Airport at the end of 2018. Following that incident, in response to the consultation, the Home Office committed itself to developing a stop and search power for offences related to flying an unmanned aircraft in the flight restriction zone of a protected aerodrome. The Home Office also indicated its intention to keep the further expansion of stop and search powers in relation to other unmanned aircraft offences under review.

The Bill now provides the police with the power to stop and search any person or vehicle, subject to certain conditions. At Second Reading, in response to the point that the Home Office consultation was completed before the Gatwick incident, the Minister said:

“I reassure noble Lords that we have of course been in touch with members of the police force around Gatwick and, indeed, all over the country to make sure they are content with the powers in the Bill. We believe that they are. We have a close relationship with them, so they have been involved since Gatwick in making sure these powers are appropriate. Of course, we still meet with the police and other stakeholders to discuss these matters in general.”—[Official Report, 27/1/20; cols. 1291-92.]


Bearing in mind that, in the public consultation prior to Gatwick, responses were broadly unsupportive of proposals on stop and search powers in relation to unmanned aircraft, were any meetings or other forms of contact had with those who had been broadly unsupportive of the proposals, to check that their views had changed since the Gatwick Airport incident? Did the Government make an assumption that views would have changed, or did they not intend anyway to take any notice of the broadly unsupportive responses to the stop and search proposals, so that it did not really matter whether views had changed as a result of the Gatwick incident? A government response on this would be helpful.

The second item in this group relates to Schedule 8 standing part. I want to talk about paragraph 5(11) of Schedule 8, which inserts a power at new subsection (4B) into Section 93 of the Police Act 1997. This enables the Secretary of State, by regulations, to add or remove an offence from the definition of “relevant offence” set out in subsection (4A), also inserted by this Bill. Paragraph 5 of Schedule 8 deals with

“authorisations to interfere with property”

or interference with wireless telegraphy. This is a Henry VIII power. In their memorandum to the Delegated Powers and Regulatory Reform Committee, the Government said that it was necessary to ensure that the list of relevant offences remained up to date

“if the evolution of technology results in unmanned aircraft being used in new or different types of offence.”

I note that they used the word “if”, not “as”, in relation to the evolution of technology; clearly the Government do not actually know whether they will need this power to add, by regulations, additional or even completely new offences.

In the same memorandum, the Government say:

“The power to interfere with property or wireless telegraphy is a significant power which entails the possibility of interferences with, for example, people’s property rights.”


Further on, the Government refer to

“any expansion of the power to interfere with property and wireless telegraphy”.

Yet the Government want to have this “significant power” and this “expansion of the power to interfere” with “people’s property rights” by adding additional new offences that they do not know they will need and appear unable to describe, and to do so not by primary legislation but by regulations that cannot be amended.

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With that, I hope the noble Lord will feel able to withdraw his amendment.

[Lord Rosser]

I thank the Minister for her response to the amendments on which I and others have spoken. I will of course withdraw my amendment, but am not entirely convinced on her point about police resources. I asked some fairly specific questions about the percentage of police officers who would be required to have the training; I still do not know whether it is envisaged that all police officers will have this knowledge or whether it will be a much smaller grouping. I also asked about the tactical advisers; I suspect on that one it will be a case of waiting to see what happens—whether the Government’s view of the extent to which it will involve an additional responsibility or duty on the police materialises or whether it will prove somewhat greater than the Government anticipated. But for now I beg leave to withdraw my amendment.

Amendment 28 withdrawn.

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[Lord Rosser]

I have written down an item about Schedule 10 and I will speak in particular to paragraph 6 of Schedule 10, which allows for supplementary provision to be made by regulations with respect to fixed penalty notices, including to the extent of amending or repealing provisions by an Act of Parliament. Paragraph 6(1)(b) of Schedule 10 also states that the Secretary of State may by regulations make

“provision about the consequences of providing false statements in connection with fixed penalty notices, including provision creating criminal offences.”

In their memorandum to the Delegated Powers and Regulatory Reform Committee, the Government’s justification for this power to create criminal offences through regulations, which cannot be subject to amendment, appears to be at least in part that there is a precedent in Section 54 of the Space Industry Act 2018. That Act was in essence a skeleton Act, which the Government told us was needed on the statute book before it could be properly fleshed out—hence so much being left to subsequent regulations—to provide assurance or comfort to the emerging UK space industry that the Government were prepared to give it the legislative backing and certainty it required. I suggest that the same consideration hardly applies here in relation to fixed penalty notices and the creation of criminal offences.

The Government say that the powers in paragraph 6(1)(b) to create criminal offences are needed to ensure that provision can be made for the consequences of providing full statements in connection with fixed penalty notices. But what kind of criminal offences are we talking about which are apparently so unique that the Government cannot formulate them now and put them in the Bill? Alternatively, since the Government refer only to the

“possibility of creating criminal offences in relation to false statements,”

why not first determine what those new criminal offences are that need creating and then include them in the next suitable Bill, where they can be fully debated and amended?

The Government clearly regard this Henry VIII power to be of some significance, since they state in their memorandum to the DPRR Committee that

“the regulations may create criminal offences and make provision about the process around appeals, and there is therefore the potential for significant impact to the public, police and judicial system.”

However, despite that potential for significant impact, the Government think it appropriate to use Henry VIII powers and regulations rather than primary legislation, which is invariably more fully debated and which, unlike regulations, can be amended. So can the Government give a somewhat fuller explanation of why having the powers to which I have referred in Schedule 10 is so crucial and, in their view, unavoidable, as opposed to them being powers, frankly, of administrative convenience to the Government?

[Baroness Vere of Norbiton]

I thank the noble Lord, Lord Rosser, for introducing a specific part of Schedule 10: notably, paragraph 6, which gives the Secretary of State the power to make regulations for the provisions about fixed penalty notices, the form of and the information included, and the consequences of providing false statements in connection with fixed penalty notices, including the provision of creating criminal offences, as the noble Lord noted. It is important to note that within all this there is the affirmative resolution, and the consequences need to be proportionate and appropriate to the fixed penalty notices themselves. So proportionality will certainly come into this.

Should the regulations be used in future, the key consideration will be whether they are proportionate. The noble Lord mentioned that the consequences could be put in other legislation, but there could be no other suitable legislation coming down the track. As he noted, there is precedent for making regulations in the manner set out in the Bill. This would be a perfectly reasonable way to provide the flexibility that the Government need in this area as the entire sector develops. We need the flexibility not only for the information required in fixed penalty notices; it must therefore be the case that the consequences of providing false statements in relation to fixed penalty notices must also be needed. That is why we have taken this power in the Bill.

I hope that, with that explanation, the noble Lord will feel able not to oppose the schedule.

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[Lord Whitty (Lab)]

My Lords, unnecessary conflict has developed in this debate. I declare that I am the vice-president of BALPA, whose position, broadly speaking, is to support this Bill as far as it goes and strengthen it where we can, but also to recognise that there will be subsequent information and knowledge, and that regulation will be required as the impact of the technology changes. The noble Baroness’s amendment—building into this legislation the fact that we continuously review the specifics that she outlines, but also any other changes in technology—is the most sensible way to do it. We are not going to complete in the next few days a Bill that will last very long in its totality.

The noble Baroness, Lady Randerson, with whom I sat on the same committee, knows that five years ago the technology was very different. Some of the concerns were the same; some have been overcome. Hopefully, we can develop a situation in which we have a continuous review, but the request that that should be built into this Bill does not seem to me unreasonable. For the reasons that the noble Lord, Lord Naseby, and my noble friend Lord Campbell-Savours spelled out, and as I spoke about at Second Reading, we already know about the lack of testing on the effect of drones going into jet engines. We need that testing before we can effectively legislate. It is a potentially serious issue. We need a next stage built into the legislation. If the noble Baroness’s amendment is not accepted in total, I hope that its spirit will be taken on board by the Government.

[Lord Rosser]

My Amendment 35 in this group is on much the same theme as the amendment moved by the noble Baroness, Lady Randerson, except that it calls for the Secretary of State to,

“prepare a strategy for reviewing legislation relating to unmanned aircraft.”

At Second Reading, my noble friend Lord Tunnicliffe, referring to the rate at which technology surrounding drones has developed, said:

“It is possible that this legislation already falls behind recent developments. It seems to ignore the dangers that could arise from drones that fly beyond lines of sight. Ultimately, this legislation must be prepared to deal with the drone technology of the future”.—[Official Report, 27/1/20; col. 1270.]


My noble friend Lord Whitty referred at Second Reading to the Select Committee report from 2015 on drones—or, as I think they were known then, remotely piloted aircraft systems—and said that a range of issues raised in the report had “not been fully addressed” and were not really addressed in the Bill. Some related to the safety of other users in the air and on the ground, but there were also issues of insurance, licensing, privacy and liability and the question of how far the multiple operation of drones by one programme and one operator is compatible with our current regulations. He also spoke about changes in the air traffic control regulations to ensure adequate separation; strengthening the enforcement and checking system; removing built-in safety features from drones; the deliberate weaponisation of drones; and licensing of individual machines. The Airport Operators Association has called for mandatory geofencing software in drones and the mandatory identification of drones to help airports to identify genuine threats to safety.

I am sure that the Government recognise the need to keep reviewing legislation relating to unmanned aircraft. The incident at Gatwick Airport in December 2018 and other incidents and the subsequent emergence of the Bill suggest that someone or somebody had not kept their eye fully on the ball regarding the relevance of legislation by ensuring legislation continues to reflect current realities and technological developments. It is not unreasonable to suggest that a strategy should be drawn up for reviewing legislation to ensure that that does not happen again. At Second Reading, the Minister, speaking for the Government, said:

“Of course, the world of drones and airspace change never stops, so we will continue to review the legislation to ensure it remains fit for purpose, particularly for drones.”—[Official Report, 27/1/20; col. 1292.]


As I said, I am not sure that that has been the case in the light of the Gatwick incident in the sense of updating the legislation in time.

Will the Government’s strategy for reviewing legislation relating to unmanned aircraft be conducted in a piecemeal manner, responding to problems and issues as they come to light, or will we have a comprehensive review of all aspects of legislation relating to unmanned aircraft, as some have called for? The Airport Operators Association says in its briefing—which I am sure a number of noble Lords will have received—on Part 3 of the Bill on unmanned aircraft: “We are, in addition, disappointed that the Government have not taken the opportunity to include other elements called for by the majority of the industry and achieve one comprehensive piece of legislation on drone safety and usage.”

The piecemeal approach would appear to be in vogue at the moment. Even with this Bill, the Government have taken the line—and it has been repeated today—that this is about police enforcement powers and that, in their view, it is inappropriate to use this Bill for further unmanned aircraft regulation. There are also the Henry VIII powers in the Bill, which we have discussed. They provide for the creation of new offences by the Secretary of State, by regulation on an ad hoc basis, and for the addition of offences by the Secretary of State by regulations on an ad hoc basis. That again suggests a piecemeal approach by the Government to their continuous review of the legislation on unmanned aircraft to ensure that it remains fit for purpose. If legislation affecting unmanned aircraft is reviewed on a piecemeal basis, then when a problem or deficiency is exposed, we risk the equivalent of a second Gatwick incident.

This amendment calls for a strategy for reviewing legislation relating to unmanned aircraft—a strategy which, based on the evidence, frankly, is needed—and for that strategy to be prepared by the Secretary of State. I await the Government’s response.

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[Baroness Vere of Norbiton]

I thank my noble friend for his additional data, to be added to the information I will be collecting before too long.

[Lord Rosser]

It is a sobering thought that, as I understand it, the Government have said that no legislation could prevent what happened at Gatwick happening again or even reduce its likelihood. That seems to be the Government’s stance. I apologise for my ignorance in advance, but can the Minister confirm that there is a report into the incident at Gatwick Airport in December 2018, and can it be made available?

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[Baroness Randerson]

My Lords, Amendment 32 follows similar lines to Amendment 31 but is much more specific. It amends the Air Navigation Order 2016 to introduce an obligation for geofencing equipment to be up to date and working. It provides that persons in charge who have electronic identification must not switch it off, and must have that identification on a register linked to their name. Currently, we still have drone users without registered drones. As I said earlier, there are good reasons why some people do not, and should not, have to register; the amendment allows for exceptions.

Basically, I have selected some simple steps that can be taken now. They do not anticipate future technological developments; they deal with what exists now. I accept that one might debate many things about how we control and use drones in the most sensible way, but these are simple, basic improvements to the control of drones by government legislation which benefit the whole of society, as I stated in my previous amendment. I do not wish to repeat what I said then. I beg to move.

[Lord Rosser]

My Lords, I have an almost identical amendment to that moved by the noble Baroness, Lady Randerson. I am sure that nobody wishes to hear me deliver virtually the same speech as the one delivered by the noble Baroness. I support what she has said and hope we will find that the Government do too.

[Baroness Vere of Norbiton]

I am very pleased that this group came immediately after the previous one because I too will probably be saying pretty much what I said before. Obviously, geo-awareness and electronic conspicuity are important parts of the delegated regulation. Even though the noble Baroness would perhaps like these to be introduced sooner, I am sure she would accept that, while we are in our transition period, we have to follow EU law. The two items identified in this amendment are already in UK law; there is a three-year transition period in which they will come into effect. The noble Baroness mentioned that new drones can be purchased with all these things. There are people in the model aircraft community who will be very quick to write to all noble Lords to tell them why the transition period of three years is required. I have been at the receiving end of one their campaigns; it involves a lot of letters.

There are many reasons for the three-year transition period. While we were a member of the EU we could not change it, as the noble Baroness, being a Liberal Democrat, well knows. Those two requirements are already there so, from the point of view of the amendments, we can put them to one side. I have been through the registration issue several times: there is an operator and there is a remote pilot; the remote pilot is under the responsibility of the operator and can be under 18. It is nobody’s interest to stop people under 18—a 16 year-old, for example—flying these vehicles.

On remote identification, once electronic conspicuity is ubiquitous, we will be able to link the identifier to the registration system. At the moment, there is literally a physical number on a drone; that will change over to electronic conspicuity once the transition period is over. The model aircraft people will have put electronic conspicuity into all their aircraft by then and the entire system should be ready to go. I hope that, given this explanation, the noble Baroness will feel able to withdraw her amendment.

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Moved by

[Lord Rosser]

34: After Clause 17, insert the following new Clause—
“Strategy on managing risks from unmanned aircraft operated from overseas
(1) The Secretary of State must prepare a strategy for managing risks arising from unmanned aircraft operated from overseas.(2) The Secretary of State must publish the strategy no later than twelve months after this Act is passed.(3) The Secretary of State must keep the strategy under review and revise it if appropriate.(4) The Secretary of State must publish any revised strategy.”Member’s explanatory statement
This amendment would require the Secretary of State to prepare and publish a strategy on managing risks arising from unmanned aircraft operated from overseas.

[Lord Rosser]

This amendment is primarily to ascertain whether the Government believe that there is a risk arising from unmanned aircraft operated from overseas and, if they do, what their strategy is for dealing with it.

At Second Reading, I referred to the power, which we know is in the Bill, allowing a police officer to require a person to ground an unmanned aircraft if they have reasonable grounds for believing that the person is controlling the unmanned aircraft. I asked if there were powers available if the unmanned aircraft were being controlled by a person operating it from outside the United Kingdom or, indeed, from within our coastal waters. It would be helpful if the Government would say whether there is a strategy for managing risks arising from unmanned aircraft operated from overseas. Do they consider there is a risk from this source at all?

[Baroness Vere of Norbiton]

I thank the noble Lord, Lord Rosser, for raising this very important point. Certainly, the Government are well aware of a wide range of risks relating to unmanned aircraft and the fact that they may, in due course, be operated from overseas. That is one of the risks we are considering.

The Government published the UK Counter-Unmanned Aircraft Strategy in October 2019. That strategy aims to safeguard the potential benefits of unmanned aircraft—because they can bring substantial benefits to the UK—by setting out our approach for countering the threat posed by their malicious or negligent use. I stress that this is very much work in progress. As all noble Lords have commented today, this technology moves very quickly, but the focus of this strategy is on keeping the UK public safe and protecting our critical national infrastructure, prisons and crowded places, irrespective of where the threat originates, in the UK or externally. It is therefore not necessary to prepare and publish an additional strategy specifically for managing a threat from overseas; it is something that is under consideration and was considered as we prepared the strategy.

As I have said many times today, the strategy recognises that there is no silver bullet: we must look at all the threats and at mitigating them all, both through the Bill before your Lordships today and through more practical elements, such as training the police, making sure that airports have access to the technology, as I explained earlier, and making sure that everybody using the technology or putting these powers in place has the training and guidance needed to respond effectively to the threat. I hope that, based on that explanation, the noble Lord will feel able to withdraw his amendment.

[Lord Rosser]

I thank the Minister for her response, and I beg leave to withdraw the amendment.

Amendment 34 withdrawn.

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Moved by

[Lord Rosser]

36: Clause 20, page 11, line 26, leave out paragraphs (b) and (c)
Member’s explanatory statement
This amendment is linked to the other amendment to Clause 20 in the names of Lord Rosser and Lord Tunnicliffe.

[Lord Rosser]

The two amendments in this group would require the Secretary of State to consult those involved in or affected by the incident at Gatwick Airport in December 2018 and to report on the consultation to both Houses of Parliament. What has driven these amendments more than anything else is that I am still not clear about the extent to which the Government went back to consult those who took part in the original consultation, to see whether they had anything useful to add in light of their experience of what happened at Gatwick in December 2018 that might have had relevance for what appears in the Bill we are considering today. As we know, two public consultations took place prior to this Bill and, indeed, prior to the incident in December 2018.

My noble friend Lord Tunnicliffe referred to this at Second Reading, when he asked whether there had been any consultation on the legislation with those involved in the Gatwick incident. The Government’s response was less than explicit. They said only that there had been contact with the police force

“around Gatwick and … all over the country”

and meetings with

“other stakeholders to discuss these matters in general.”

The Government also said that

“a cross-government working group … looked at stop and search powers”

and

“agreed that the focus of the powers should not only be directed towards aviation and airports but be applicable to other areas such as prisons”.—[Official Report, 27/1/20; cols. 1291-2.]

In conclusion, they said they could not “delay any longer”. One might draw an inference from that comment that few of those organisations or individuals involved or affected by the Gatwick incident were consulted so that their potentially useful recent information or experience could be taken into consideration when determining the provisions that should be in this Bill or what provisions of a non-legislative function might be taken.

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[Baroness Vere of Norbiton]

The noble Baroness has hit a particular nail on the head. That is why the catalogue of equipment is being developed by the CPNI. It is encouraging the leasing of equipment. Airports are responsible for safety and security within their boundaries, so they are being encouraged, where they feel it is appropriate, to lease appropriate equipment. Not all airports are the same, because of different sized sites and all sorts of different reasons. There is always ongoing engagement with the Ministry of Defence and the police. Every incident is dealt with on a case-by-case basis because, interestingly, no two incursions are the same. Some can be dealt with extremely easily and others require a different approach. We are well aware of the difference.

It is not just the different sizes of airports. There are various other bits of critical national infrastructure that fall under this entire threat picture. We are cognisant of that; it is part of the work on the strategy to make sure that we have the appropriately flexible response to make sure that we can deploy resources in the best way.

We have also been engaging with the Ministry of Defence. Along with the Home Office, my department works closely with the Ministry of Defence to share learning from its military work overseas and how best to work with the counter-drone industry. We work closely with the Civil Aviation Authority, including on the development of the drone code and drone registration scheme. Since Gatwick, the code has been reviewed and the drone registration scheme has come into existence.

We have regular meetings with BALPA, which is always a pleasure, and we are very interested in what it has to say. We also see a wide range of other bodies, either regularly or on an ad hoc basis, which includes the drone and counter-drone industries, regulatory bodies, airports and other critical national infrastructure sites, academia, and in particular international partners— this is not just a UK issue, and we speak to our international colleagues about it. I had a meeting with people from the States just a couple of weeks ago; they are facing the same problems, and we should not think that we are behind the curve, because we are certainly not.

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

[Lord Rosser]

I thank the Minister for her response, and I beg leave to withdraw the amendment.

Amendment 36 withdrawn.