Space Industry Bill [HL]

Lord Tunnicliffe Excerpts

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

Moved by

[Lord Tunnicliffe]

7: Clause 9, page 7, line 37, leave out “to (4)” and insert “and (3)”

[Lord Tunnicliffe (Lab)]

My Lords, in moving Amendment 7, I shall speak also to Amendments 8, 11 and 12 in this group. The Bill requires, in Clause 9(4) on page 7:

“As regards risks to the health, safety and property of persons not within subsection (2)”—


subsection (2) is about individuals who take part—

“the applicant must have taken all reasonable steps to ensure that those risks are as low as reasonably practicable”,

and,

“the level of those risks must be acceptable”.

This set of amendments vests the responsibility for certificating that this level of risk has been achieved in the Health and Safety Executive.

I start by thanking the Minister for the time that he has given to talk to us about the Bill—therefore, I cannot pretend that this is a probing amendment. I for one, and the rest of our Front Bench to a degree, feel that the Bill is premature. The two-year gap envisaged between the Bill becoming and Act and the full emergence of the regulations suggests to us that introducing the Bill at a later time would have been more efficient and allowed fuller scrutiny on a more comprehensive Bill. That is particularly drawn out in the whole safety issue.

The bit of the Bill that I have read requires the concept of the risks to what I shall call uninvolved third parties to be reduced to “as low as reasonably practicable”. That is a very widely used concept in the safety world—a complex concept that weighs benefits against risks and costs.

I shall take a view of the benefits of the Bill. The Minister quoted the importance and value of the space industry to the United Kingdom, and I would not in any way demur from that, but we are not talking about creating it or not, or the space industry carrying on in future or not. We are talking about two capabilities. One is about inserting the satellites into orbit and the other is space tourism. I know that some other things are prayed in aid, but that as a generality covers what the Bill will provide.

There is no way in which we are going to be a first mover in inserting satellites into orbit. The Americans, Russians, French and Chinese are all in this business. The Minister suggested that there was a special European dimension, and there may be, but to a degree inserting satellites into orbit is likely to become a commodity, especially as satellites become smaller and less weighty. There is a benefit, but the benefit will have to be judged in the whole balance of achieving “as low as reasonably practicable”.

I find the concept of space tourism extremely difficult to grapple with in safety terms. The nearest thing we have had to sustained space tourism was the shuttle programme. There were 135 missions; two ended catastrophically and 14 people died. I doubt that there is genuinely much of a market for tourism which involves a one in 65 chance of dying. The Virgin Galactic programme has also been mentioned. This has so far resulted in one destroyed aircraft and one dead pilot. Broadly speaking, the Health and Safety at Work etc. Act requires that an activity where an employee runs a risk of more than one in 1,000 is unacceptable and should simply not happen. I find it difficult to believe that, with the risks apparent at the moment, space tourism would be certificated in this country in the near future.

Although the benefits of the industry as a whole are valid, it is less clear how great they are for this particular capability. They would also need to be balanced in meeting the requirements of the clause that protects the safety of uninvolved third parties, whose exposure is nicely brought out in annexe C to the letter which the Minister was good enough to write to me and some other noble Lords. It stated:

“The current UK aviation regulatory regime prioritises the safety of the aircraft and its occupants and does not directly regulate the safety of third parties on the ground ... If the level of safety for the aircraft and its occupants is sufficient then by default third parties can be considered appropriately protected”.


This approach is clearly not sufficient in this direction, either in its outcome or in its nature.

Generally speaking, there are two ways of developing a safety regime. There is the accident-led way: an enormous proportion of our safety law—fire law, building regulations et cetera—comes from accidents from which we learn. It may surprise noble Lords to learn that aviation safety essentially has the same basis. When I was involved in the industry in the 1960s, a British-registered jet aircraft crashed about every two years. When I entered the profession it was dangerous, with a chance of dying of about one in 2,000 per annum. Before civil aviation had its many crashes, the military was exploring the edges of the envelope and having similar numbers of them. The industry developed a high-quality investigation regime and slowly learned from these events. It then put them into regulations and co-operation emerged, both in the industry and internationally, which has refined itself into today’s civil aviation regime. I am not questioning its effectiveness, but one has to recognise its background. It is about experimenting, having events and then learning from them. That is my first point in arguing that the civil aviation approach is not suitable for this industry.

Secondly, the hybrid launch concept will not be certificatable within the normal civil aviation system. Basically, you cannot certificate aeroplanes to carry rockets. One has to realise that a rocket is merely a managed explosion. Those of us who remember the early days of spaceflight know that when rockets go wrong they turn into explosions. Carrying a rocket, these aircraft will be highly specialised and certainly will not fall naturally into any certification regime. As the Minister’s quotation illustrated, the consequences on the ground of an aircraft with a rocket on board crashing will have to be addressed. The presumption that the airplane and its occupants are safe will not be proven to the level by which one can disregard the impact of such a crash.

Thirdly, in a hybrid approach, not only do we have to look at the risks to aircraft used to launch rockets, we also have to look at rocket-propelled aircraft. One of the many ideas used to illustrate the potential value of spaceports are rocket-propelled aircraft, which will be an entirely new area of risk. The Bill allows for vertically launched rockets, and these will need to be assessed. Therefore, I argue that the aviation approach is not appropriate or called for by the Bill. It calls for an ALARP approach, which essentially, as I have already said, balances the benefits against the risks. It is a forward-looking approach and is used in nuclear, the railway environment and safety-critical industries. To meet this requirement one needs competence in the ALARP approach. Our amendments argue that that competence is held by the Health and Safety Executive.

However, as important as the requirement in connection with the body certifying that the level of risk has been reduced to as low as reasonably practicable is the requirement that from the beginning we have a single point of responsibility for safety. For most of my career I have been involved in safety-critical environments. It is almost impossible to stress the improvement in safety whereby an individual accountable to his board or organisation goes to bed knowing that if there is an incident in the area for which he or she is responsible, they cannot say, “That was their fault”, because, at least to some extent, it is that person’s responsibility. The most that person can do is join other parties in their responsibility. The responsibility lies with the individual and the organisation. Therefore, I believe that we need a single authority and an ALARP approach as an integrated whole that can look at the benefits and the risks posed by events and the consequences. We argue that only the Health and Safety Executive, with appropriate professional inputs, can meet that requirement and has the experience and skill to deliver this judgment. I beg to move.

[Baroness Randerson]

My Lords, I associate myself with the intention behind these amendments. In preparing for the Bill, I spoke to a wide range of individuals and organisations involved in the space industry. They undoubtedly take health and safety very seriously and are surprised at the low density of detail in the Bill in relation to those aspects. Noble Lords across the Chamber have said several times this afternoon how exciting and important this issue is. There is undoubtedly lots of enthusiasm but, looked at dispassionately, this is a dangerous activity for those involved in it and others who are not involved but who live in the surrounding area or, indeed, almost anywhere in the UK. The noble Lord, Lord Moynihan, pointed out the potential for space tourism without people even leaving the ground as there will be viewing platforms and so on. All these things have to be considered from the health and safety standpoint. I have become increasingly concerned about the clutter in our skies. We are all familiar with planes but we are increasingly concerned about drones, and now we are taking into account space activity. Our skies are crowded and it is important that the Government set out a comprehensive, co-ordinated and truly effective approach to these issues.

[Lord Callanan]

My Lords, I thank the noble Lord, Lord Tunnicliffe, and the noble Baroness, Lady Randerson, for their important interventions on the vital topic of safety, which we take extremely seriously.

Clauses 9 and 10 require that applicants for spaceflight operator and spaceport licences take all reasonable steps to ensure that risks to health and safety of the general public—as the noble Lord, Lord Tunnicliffe, observed—are as low as reasonably practicable. Furthermore, Clause 9(4)(b) means that even after all steps have been taken to reduce risk to as low as is reasonably practicable, the regulator will not issue a licence if the risk to public health and safety remains unacceptably high.

The noble Lord raised through these amendments the question of the role that we expect the Health and Safety Executive to have regarding spaceflight in the UK. The Health and Safety Executive has undoubted expertise and a long track record in a breadth of issues and across a range of sectors. Clause 20 ensures that the regulator is able to draw on this expertise to inform decision-making in connection with safety of spaceflight activities. This is consistent with the role the Health and Safety Executive plays in other sectors. The Health and Safety Executive does not normally regulate by licensing or certifying safety. Instead, it imposes a duty on those that may create risk to manage those risks to be as low as reasonably practicable.

[Lord Tunnicliffe]

The noble Lord will accept that the Health and Safety Executive in the permissioned industries—for instance, nuclear, railways and several others—directly approves the operation of those industries.

[Lord Callanan]

I will come on to that point shortly.

I am confident that the approach we are taking is appropriate. In line with agreed health and safety practice, the Bill places the onus on the regulator to be satisfied that risks are as low as reasonably practicable and that they are acceptable. But equally, the Bill ensures that the regulator will have access to the expertise possessed by the Health and Safety Executive, where this is required. I stress that this is expertise we have already benefited from. I thank the Health and Safety Executive for the integral role it has played in developing this legislation with my department and the UK Space Agency.

I will share some detail on how we believe regulators will determine whether risk to public safety is acceptable. The approach will be aligned with best practices for managing risk across all sectors in the UK. We expect to use an individual risk per annum approach—in other words, in a given location, the risk of death arising from the activity to an individual across a reference period of one year. The regulator will publish a methodology for assessing risk which operators may choose to use. The Government are currently working with HSE’s Science Division—its research arm—to develop a comprehensive methodology for the assessment of risk to third parties.

How can we be assured that the regulator will have the appropriate personnel and skills to assess the safety cases presented by operators? The Civil Aviation Authority, the UK Space Agency and the Health and Safety Executive are respected regulators in their fields, with proven track records in regulating risky activities. That is why we are drawing on their relevant regulatory expertise for this new sector. I assure the Committee that these organisations are building on their existing heritage to develop their technical and analytical capability to assess the specific risks posed by spaceflight.

Although regulating and managing the risk of spaceflight is new to the UK, other countries have many years’ experience of it. We are learning from existing spaceflight regulators in other countries and intend to enter into agreements that will include provision for the training of our personnel and the sharing of information on those activities. I hope that the noble Lord will feel that I have answered his questions and will agree to withdraw Amendment 7.

[Lord Tunnicliffe]

My Lords, in the interests of time, I will withdraw the amendment. However, my immediate reaction is that I am not fully comforted by what I have heard, and I expect us to come back on Report on this issue. In the meantime, it may be fruitful to engage in further discussions with the Minister to see whether we can get closer together on this. I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

--- Later in debate ---

Moved by

[Lord Tunnicliffe]

15: Clause 11, page 8, line 37, leave out subsection (2)

[Lord Tunnicliffe]

My Lords, I said that the previous group of amendments was probing. We had had time with the Minister to try to understand the Bill but unfortunately we did not get as far as this area. Therefore, I will not attempt to explain the amendments in this group because I do not really understand the parts of the Bill that they relate to. With that admission, perhaps I may simply put a few questions to the Minister.

I think I understand that there is the concept of strict liability towards an uninvolved third party who suffers a loss. I would be grateful if the noble Lord could confirm that—we are moving forward question by question—obviously with the necessary caveats and niceties. As I understand it, the amount of liability may be capped. To me, that means that there is a limit on how much the operator—or the Government, who might be liable—must pay in damages to an uninvolved third party in the event of an accident. I hope that I have that bit right. However, I am not clear about who pays if the losses exceed the cap. Clearly, it is not the operator—that is what a cap means. Therefore, is it the injured third party?

It is very rewarding working in the safety sector, although it means that you get a bit ridiculed. However, we are talking about a TriStar with a bomb on it crashing in the middle of Glasgow. That is not an impossible scenario. Of course, it is not very likely but the unlikely happens—that is what the statistics show. Who would meet the costs of such a catastrophe? Even if there is no cap on the operator’s liability, the commercial structure of the company means that there will be a de facto cap because the company will rapidly go out of business without one or if it is uninsured. However, there will be circumstances in which the amount exceeds the cap.

Elsewhere in the Bill, the Government seem to have the ability to meet the obligations towards the injured third party. So if the answer to my question is that the Government will meet the excess over the cap, which part of the Bill provides for that? Is it an assurance to the uninvolved in society—us and the people around Prestwick—that where there is an event, their damages will be met either by the operator or by the Government? Who will meet the excess over the cap, or is society in general exposed above the cap? I beg to move.

[Lord Fox]

My Lords, I apologise to the noble Lord, Lord Tunnicliffe, for missing the first couple of words of his contribution and to the Committee for being slightly detained outside the Chamber.

Very briefly, the mission of these amendments, in the event that they were adopted by the Government, appears to be to create unlimited liability for the companies concerned in the pursuit of their business. Having asked a few questions of such operators, my understanding is that were they in an environment of that nature, the whole spirit of the Bill would be lost very quickly, in that no operator would undertake a risk of that level. I understand the concerns of the mover of this amendment, and the questions he has asked of the Government—who would pick up the liability?—are the right ones. However, the solution of creating unlimited liability across the board for the operator is not one that these Benches would support.

--- Later in debate ---

[Lord Callanan]

We have seen in the speeches the different approaches that noble Lords wish the Government to take to cap liabilities. In the case of the noble Lord, Lord Tunnicliffe, it is to remove the provision.

[Lord Tunnicliffe]

The purpose of the amendments was to bring out precisely, in simple words, what the Government want to do. I am not hostile to a cap or to some government help, but I want to be clear what the Bill means. If I do not like what I have heard, we will come back on Report.

--- Later in debate ---

[Lord Tunnicliffe]

The Minister went into exactly the sort of detail we were looking for. I stress that I am not hostile to the concept of a cap, but I will reduce this to very simple terms. If I were to suffer—no, I am nowhere near that rich. If Glasgow suffers an event that substantially exceeds the cap, can it reasonably expect that the excess above the cap will be met by the Government?

[Lord Callanan]

There is no simple answer to that question. It would depend on the conditions of the licence issued for the particular activity and whether any cap was imposed on that activity at the time. We are looking at every launch activity, and every application will be considered on an individual basis.

To go back to the comment made by my noble friend Lord Willetts, as I said, we are in listening mode. I am aware that this is a controversial subject. He will understand the discussions taking place between different government departments on this issue. I will say more on it as soon as I can, but I take on board the concerns raised by many people and those of industry, which have been expressed to me personally and by many noble Lords this afternoon. If it is helpful, let me say that the Government intend to exercise their power under Clause 11 to cap an operator’s indemnity to the UK Government in licence conditions for the activities of procuring the launch of a space object and the operation of a satellite in orbit, as this is currently the policy for activities licensed under the Outer Space Act.

As I said, I am listening to people on this. I will say more as soon as I am able to. I am aware of the concerns. We are in listening mode and we will reflect on the comments made. In the light of that, I ask noble Lords not to press their amendments.

[Lord Tunnicliffe]

Is the noble Lord likely to be able to shed light on this issue before Report?

[Lord Callanan]

If I possibly can, I will.

[Lord Tunnicliffe]

I hope noble Lords will agree that this exchange was worth while, because we have the record, which we can all examine. The needs or rights of the uninvolved third party in the circumstances of a very large catastrophe are still unclear as a result of that exchange. Perhaps we will have some conversations about that issue before Report. Otherwise, we may feel the need to table an amendment, because it seems reasonable for a citizen to expect, with appropriate caveats, that where the Government have allowed an operator to enjoy special rights of limitation—I can see exactly the reasons for that; it happened in aviation at the peak of the terrorist events, for example, so it is perfectly sensible—the Government would be the insurer of last resort. We may well come back to that point.

In the meantime, I thank the Government and all those involved in the debate because the record will clarify what is very difficult to understand from the Bill. With those comments, I beg leave to withdraw the amendment.

Amendment 15 withdrawn.

--- Later in debate ---

[Lord Tunnicliffe]

My Lords, I too would like to own up to trying to find some way of squirrelling drones into this debate and this Bill, but I gave up on the early assurance from the Minister that he was doing all that he possibly could. However, on rereading his letter today, I find that there is some confusion in my mind between a registration scheme relating to mandatory competence testing, and so on, and a more powerful scheme that might set up some technological devices to achieve the objective of separating drones from air traffic and be clearer about how it will be enforced. I should be very grateful if he could flesh out some of the ideas in his letter.

Also in the Minister’s letter—although I realise that this matter is only tenuously in front of us—was a paragraph on the misuse of lasers. He pointed out that there was a clause in the Vehicle Technology and Aviation Bill, which fell when Parliament prorogued, and he produced certain assurances about the issue and about how pilots and the wider public might be protected. I would be grateful if he would accept the indulgence of the House for him to repeat the assurances that he provides in that letter about addressing the issue of lasers at an early date.

[Lord Callanan]

I thank all noble Lords who have contributed to the debate, which allows me to explain at length another aspect of my ministerial responsibilities—the thorny issue of drones. I accept that raising it in the passage of this Bill is a way in which to put it on the record, which we intend to do, and I hope that I shall be able to satisfy my noble friends Lord Moynihan and Lord Balfe, at least in part. I realise that their concerns go further than the Bill, as the noble Lord, Lord Balfe, mentioned in his intervention.

The safe use of drones in the UK is vital if we are to realise the full potential that they can deliver. I assure noble Lords from the outset that that is exactly what the Government want, and exactly why we recently responded to our consultation setting out a number of measures that we intend to implement. The UK is at the forefront of an exciting and growing global drones market. We are seeing drones used across many sectors, improving services, increasing efficiency, creating high-tech jobs and boosting our economy. But while aiming to make the UK a global market leader in the drone economy, we must ensure that drones are used safely and in accordance with security and privacy rules. I am well aware of the July Airprox incident at Gatwick reported in the press over the weekend. No one wants to see incidents such as those occurring, which is why we intend to bring forward legislation to strengthen regulation and enforcement for drones.

To reply to my noble friends directly, we are exploring both primary and secondary legislation options and hope to bring legislation forward as soon as possible next year, including an amendment to the Air Navigation Order 2016. My noble friend Lord Balfe asked what measures we were introducing. As set out in our July consultation response, all users of drones that weigh 250 grams or more will be required to register themselves, which will encourage drone users to be more responsible and make it easier to identify drones that are breaking the law. Users will then be required to pass at minimum a short knowledge test to prove their awareness of UK law to ensure that they understand safety, security and privacy regulations. We are also looking to mandate the use of a safety app, an example of which is the NATS app Drone Assist, to notify plans to fly a drone and make users aware of local flight restrictions and ground hazards.

[Lord Tunnicliffe]

The Minister’s answer so far implies that there is no risk from drones weighing less than 250 grams. What tests and evidence does he have to assure us that that is true?

[Lord Callanan]

We did extensive safety tests in conjunction with BALPA, and released a detailed report on the size of drones and damage that they could cause to aircraft—both fixed-wing aircraft and helicopters. We considered that 250 grams was a reasonable threshold to impose at the time.

We are considering a possible restriction on all drones flying within a certain distance of airports and above 400 feet, and whether to increase penalties for breaking the rules. That includes whether and how spaceports could be included in any restrictions that we may implement. Furthermore, we are working towards implementing a product standard for electronic identification of drones at EU and international level. We strongly support EASA’s principal electronic identification, but want to see the proposals simplified to all drones above 250 grams to require electronic identification rather than a complex set of conditions.