Space Industry Bill [ Lords ] (First sitting)

Philippa Whitford Excerpts

Committee Debate: 1st sitting: House of Commons
Tuesday 23rd January 2018 Public Bill Committees

[The Minister of State, Department for Transport (Joseph Johnson)]

It is a pleasure to serve under your chairmanship on this important Bill, Mr Bone. I echo the hon. Gentleman’s thanks to Members in the other place for the collegiate and helpful way in which they developed the Bill into its current state.

I recognise the hon. Gentleman’s concerns about environmental protection and the impact on local communities of spaceflight activities and the operation of spaceports under the Bill. As he said, similar issues were raised in the other place. Following constructive debates in the other place on environmental issues, the Government reviewed the compatibility of the existing planning and environmental framework with spaceflight activities. During that review, certain situations were identified where the existing framework may not provide the environmental protection that we all wish to be required of spaceflight activities. Discussions have since taken place across Government to address that potential gap, resulting in the tabling of Government new clause 1.

New clause 1 will place a mandatory requirement on an applicant for either a launch or a spaceport licence to submit an assessment of the environmental effects of their proposed activity as a precondition of receiving a licence. That duty will ensure that appropriate assessments of environmental effects are conducted by the operator or spaceport licensee and considered by the regulator prior to the determination of an application for a licence.

As hon. Members are aware, there is already a comprehensive body of environmental and planning legislation with which spaceports and spaceflight operators will need to comply, independently of the requirements in the Bill. As such, the new clause seeks to ensure that appropriate assessments are undertaken without placing a disproportionate burden on applicants. To achieve that, it allows for existing equivalent environmental assessments to be considered where appropriate. That will be the case only where the regulator is satisfied that there has been no material change of circumstance since the previous assessment was prepared.

I hope I have reassured hon. Members of the Government’s intention to ensure that spaceport and operator licences are granted only following a robust assessment of the environmental effects of the activities those licences permit. New clause 1 goes even further than the hon. Gentleman’s amendment 13. It adds to the duty on the regulator in clause 2(2)(e) to take into account any environmental objectives set by the Secretary of State, including those set by the Environment Agency.

We also amended schedule 1 in the other place to include an indicative licence condition that, if included in a licence, would require assessments of the impact of noise and emissions from spaceflight activities. I hope in the light of the Government new clause that the Committee will agree that the Bill contains robust environmental protections, and I ask the hon. Gentleman to withdraw his amendment.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

I, too, welcome the amendment and the Government’s new clause to strengthen the environmental protections. Those hoping to establish spaceports are still concerned about exactly what is expected of them. It is about trying to get the right balance between protecting the community and allowing spaceports to develop. The sooner the regulations and expectations are clear, the more likely it is that spaceports will go ahead. At the moment, it is hard to expect them to invest if there is still the risk that, at some point, they simply will be ruled out by one of the environmental regulations.

[Karl Turner]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 ordered to stand part of the Bill.

Clauses 3 to 6 ordered to stand part of the Bill.

Clause 7

Provision of range control services

Question proposed, That the clause stand part of the Bill.

[Dr Whitford]

Again, I welcome any clarification, sooner rather than later, about who is envisaged as providing the range control services. It is clearly stated and welcome that the provider should be independent from those operating the spaceport or the flight. Would it be air traffic control? Who exactly is identified? The problem with the Bill is still that there is a lot of vague gaps that have not been filled in, which is causing anxiety.

[Joseph Johnson]

I thank the hon. Lady for her question on range controls. Clause 7 requires that range control services must be provided either by the Government or by licensed providers. At present, only one part of the Government—the Ministry of Defence—is able to provide range control services. Range safety for existing military ranges is regulated by the Defence Safety Authority, but our intention is that, for spaceflight, those services will be provided on a commercial basis. Indeed, a driving purpose of the Bill is to enable commercial and not state-sponsored or institutional spaceflight. Since range control services are one of the key mechanisms through which we will protect the public during spaceflight activities, any provider must hold a licence. That will help to ensure the regulator that only fit-and-proper persons can act as a range control service provider. I hope that clarifies the situation.

[Dr Whitford]

Is the Government’s expectation clear to the companies that are already developing? Are they able to have the security to set up what is, in essence, yet another completely new industry to service the space launch industry?

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In conclusion, the clause is central to the safe conduct of spaceflight in the UK. It will ensure that risk is managed appropriately and give the regulator the power it requires to oversee that. I am confident that it sets out robust and clear requirements of applicants. I therefore ask the hon. Gentleman to consider withdrawing his amendment.

[Dr Whitford]

This is one of the key areas in the Bill where spaceport and launch operators do not know what is expected of them. I understand that the Government wish to consult, but the sooner that it is clarified the better. Regulations coming forward two years after Royal Assent—that comes from a comment in the Lords, and would mean the summer of 2020, when the Government had hoped to launch—would throw complete planning blight over the industry. It is not possible to borrow money to develop launch vehicles or a spaceport without any idea what standard has to be reached.

On clause 9(9) and thinking about passengers, one of the industries that will develop is space tourism. Clearly, the public must be protected as far as possible. In the past, those involved in launch or space abilities have been incredibly fit and trained people. For those going as tourists, that will not be the case. It will be important that we carefully lay down what level of health expectation or physical training is required, because we do not want the early years of the industry to be marred by deaths in space.

[Joseph Johnson]

I will respond to two of the points made by hon. Members. On early visibility of licence requirements, to get the industry feeling confident that it has a clear set of rules to work with, we will continue to engage with it as we develop the detailed regulations to ensure that the legislation facilitates and supports development in the sector and provides operators with the confidence to move forward with their plans. In addition, as has been said, regulators will be holding extensive pre-licensing discussions with potential operators in order for them to provide more detailed guidance.

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[The Chair]

As we will also debate amendments 5 and 6 now, it seems appropriate to have the stand part debate too.

[Dr Whitford]

My amendment is completely the opposite of the Labour amendment. As things stand, the Government basically take liability for injury and accident and the operator has to indemnify the Government to cover that risk. What we are looking for is a change in subsection (2) from “may” to “must”. The Outer Space Act 1986 makes that clear. At the moment, the liability limit is €60 million, not £20 million. Without some form of cap on the operator’s liability, it is impossible for operators to get insurance. Therefore, they will simply continue to operate outside the UK under the Outer Space Act, somewhere with a limit of €60 million, rather than in the UK with unlimited liability, for which they simply cannot get insurance.

Amendment 6 deals with the level of cap for the kind of launches that are likely to occur from the UK. Further on in the Bill, we would want to have perhaps a per launch cap rather than per satellite, as it is now. With CubeSats and nanosatellites launched in clusters, the liability cap would be absolutely untenable. Consultation is needed. There may be a later reference to launches that could be defined as green or amber, and it may be that different caps are set for that kind of launch as an overall approach. However, there has to be an ultimate limit and that should not be higher than the current €60 million.

The clause mentions the different aspects of launch, and those are the spaceport, the range control and the launch operator, and later there will be the satellite operator. I have tabled an amendment to a later clause to define the liabilities of those groups, with very clear margins, so that there are no gaps that a victim of an accident could fall between.

[Joseph Johnson]

Clause 11(2) provides a power for a licensee’s liability to indemnify the Government under clause 35 to be capped in an operator licence. Amendment 16 would remove that vital power. Under both this Bill and the Outer Space Act 1986, operators have a liability to indemnify the Government against claims for damage or loss from foreign states and their nationals. That is to ensure that we meet our obligations under the UN space treaties.

However, satellite operators have previously raised concerns that such a liability is a barrier to operating in the space industry. Operators found that the unlimited liability made it difficult to raise finance or to insure against. The Government have therefore responded to those concerns.

The unlimited liability provisions under the Outer Space Act were amended by the Deregulation Act 2012 and since then licences issued under that Act for the procurement of an overseas launch and the in-orbit operation of a satellite benefit from a cap, which is set out in licence conditions.

The UK Space Agency publishes the usual level of cap in its guidance, which currently sets the cap at €60 million for standard missions. Crucially, however, the level is not set by statute, so the cap can be varied depending on the risk of the activity in question. Some activities currently regulated under the Outer Space Act, notably procuring the launch of a space object and the operation of a satellite in orbit taking place from the UK, will be regulated under this Bill in future, and it is the intention to continue to exercise the discretion to cap the liability to indemnify Government in these licences.

Therefore, following Royal Assent of this Bill, amendment 16 would reverse current Government policy and disadvantage satellite operators in the UK. Conversely, amendment 5 seeks to ensure that all operator licences must cap the liability to indemnify the Government under clause 35. Amendment 6 would then go on to ensure that the level of this cap would be set out in a report to Parliament.

I understand clearly that the intent of these amendments is to support operators in the UK and the Government welcome support for that principle, which is why we have included this power in the Bill. However, these amendments are premature. The cap on the indemnity to the Government under the Outer Space Act was based on many years of licensing the procuring of the launch of space objects and of the operation of satellites in orbit. Indeed, it was not put in place until more than 25 years after that Act gained Royal Assent. The costs and benefits of capping liability for those activities were fully considered and were subject to a full consultation with industry. We intend to take a similar approach to considering capping a launch operator’s liability to Government under this Bill, as launch is a new activity in the UK and poses more risks for the UK as a launching state.

As I said on Second Reading, we intend to announce a call for evidence on all issues relating to insurance and liabilities early this year, following Royal Assent. That will allow us to start to assess the appropriateness of a cap for this new and potentially riskier activity, balancing the economic benefits of such activity with the need to protect the taxpayer.

On that basis, I hope that the hon. Member for Kingston upon Hull East will withdraw the amendment.

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[The Chair]

Does Dr Whitford wish to press her amendment to a vote?

[Dr Whitford]

I wish to press amendment 5, which would change the wording from “may” to “must”. There is still room to consult on the level of the cap, but the industry requires a Government commitment that there will be a liability cap.

[Joseph Johnson]

We intend to explore that carefully in the consultation, taking into account the fact that launching in the UK is a riskier activity than procuring the launch overseas. It poses a higher level of risk to the UK taxpayer, and we need to consider it very carefully.

[Dr Whitford]

I assume the Government recognise that other launching states, such as Australia, France and the US, all have liability caps. If there is no cap, that will simply kill the launch industry dead in this country. I will not push to a vote amendment 6, which would set the cap at a particular level, but the Government should accept the principle that there will be a cap. I would be happy if the Government plan to bring forward such a measure before the third day, but simply to leave the wording as “may” leaves too much doubt.

Amendment proposed: 5, in clause 11, page 8, line 37, leave out “may” and insert “must”.—(Dr Whitford.)

This amendment places a definite cap on the amount of a licensee’s liability.

Question put, That the amendment be made.

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[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

It is always a pleasure to serve under your chairmanship, Mr Bone.

I support the amendments and hope that the Minister can answer some questions. I am speaking with a constituency interest, as Natural Resources Wales is in my constituency. As that constituency borders England, and has a maritime border, issues such as those we are considering are of regular concern to my constituents. A recent example was the building of the new Hinkley Point nuclear power station on the other side of the Bristol channel. Various significant concerns were raised about the granting of licences for the disposal of mud, which is being removed from the Hinkley Point site to the Welsh side of the channel.

I do not want to get into the specifics of that example, but as there is a question of potentially hazardous materials and the potential for cross-border contamination within the UK, I agree that the matters should be the subject of proper consultation with the devolved authorities, given the likely consequences of anything untoward happening.

[Dr Whitford]

I welcome the amendment. My hon. Friend the Member for Glasgow North West and I certainly support it, because three of the potential sites are in Scotland, and one is in Wales. However, as we have discussed, the industry could grow and while there is not currently a site in Northern Ireland, there could be in future. It is important that the devolved Governments should be respected and consulted.

The Government introduced new clause 1 on environmental impact right at the start, when we considered clause 2, and it is crucial that they should respect the devolved Governments’ environmental agencies and local planning considerations.

[Joseph Johnson]

I thank hon. Members for raising important issues on consultation with relevant environmental and planning bodies. The regulator will identify what assessments of environmental effects are appropriate, during the pre-application process. In reviewing those assessments and deciding whether conditions should be attached to a licence, the regulator may wish to have an input from various environmental bodies. However, requiring consultation with the relevant environment agency and local planning authority before deciding what conditions to attach to a licence is not necessary, and may end up being disproportionate.

For example, once the industry has developed, multiple launches may occur under a separate but almost identical licence. In such a case it would be disproportionate for the regulator to have to consult the environment agency and local planning authority for each new licence. It is also worth noting that clause 2 requires the regulator to take into account any environmental objectives set by the Government, which would include any issued by the environment agency.

The existing planning, regulatory and environmental framework will continue to apply, and environmental bodies will have a say, in accordance with their statutory remit, at the relevant stages, such as when planning permission is applied for. I hope that in the light of the Government amendment and the provisions already in the Bill, Members will agree that robust assessments of environmental effects will be conducted and considered prior both to the granting of a licence and to the imposition of conditions under the Bill. I would therefore ask the hon. Member for Kingston upon Hull East to withdraw amendment 17.

[Dr Whitford]

I wonder whether the Government would consider including consultation with these agencies within the environmental impact assessment in clause 2, as amended by new clause 1. The Minister talks about consulting with the Environment Agency but, obviously, in the devolved administrations there are three other environment agencies and they should have their place.

[Joseph Johnson]

I would not want the Committee to think that we have not been engaging closely with the devolved Administrations in the development of the Bill, because we have, and over a considerable period. We have worked with Scotland, Wales and Northern Ireland at official level to ensure that all the devolved Administrations are content with provisions in the Bill. I have been out in Northern Ireland myself to discuss the opportunities this Bill presents to businesses there.

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[Dr Whitford]

On the matter of informed consent, I highlight the written evidence submitted to us around what will be defined as informed consent and the possible need to explain complex issues and whether there would be potential for exposing technical information, which, under the US’s ITAR—International Traffic in Arms Regulations—agreement, would be a problem. That is not particularly something I want to bring forward, but we have received a written submission on informed consent.

[Joseph Johnson]

Informed consent is an important part of the Bill. We will be developing detailed regulations on informed consent, including the information that operators must provide to individuals before they sign consent forms.

Question put and agreed to.

Clause 17 accordingly ordered to stand part of the Bill.

Schedule 2 agreed to.

Clause 18 ordered to stand part of the Bill.

Schedule 3 agreed to.

Clauses 19 to 21 ordered to stand part of the Bill.

Schedule 4 agreed to.

Clause 22

Security regulations

Question proposed, That the clause stand part of the Bill.

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[Karl Turner]

I beg to move amendment 19, in clause 32, page 23, line 31, at end insert—

‘(4A) 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.”

This amendment provides that an urgent enforcement authorisation 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.

The amendment provides that an urgent enforcement authorisation must be referred to a justice of the peace for evaluation within 48 hours following the 48-hour period under subsection (7), during which the enforcement authorisation remains in force. The amendment aims to clear up any ambiguity surrounding clauses 31 and 32, which grant warrants authorising entry or direct action and powers to authorise entry in emergencies.

Clause 32(2) permits a named person to do anything necessary for protecting national security, securing compliance with international obligations or protecting health and safety. My colleagues in the other place raised concerns about emergency warrants and such vague wording. The power conferred by clause 32 is very extensive and broad. It contains no thorough judicial oversight. The Minister is well aware that the House of Commons Science and Technology Committee also expressed concerns about this aspect of the Bill, which was obviously mentioned in detail in the other place.

We welcome the fact that the Government reduced the authorisation period from one month to 48 hours, which limits the Secretary of State’s power to a degree. However, we still have concerns that such significant and wide-ranging powers will be exercisable without anticipatory or rapid post hoc judicial involvement.

Currently, there is not enough in the Bill to check whether the powers granted under clause 32 will be appropriately or proportionately used by the authorised person. The Minister in the other place stated that the amendment would “impose unhelpful bureaucracy”. We believe that judicial oversight of emergency warrants is crucial to ensure that such excessive powers are not abused, and we do not believe that we are asking for anything unreasonable. Having checks in place to ensure that this extensive power is not misused will improve the Bill. It is not, as stated by the Minister in the other place, “unhelpful bureaucracy”. I hope the Minister can give assurances that the Government are listening to those concerns and will take them on board.

[Dr Whitford]

I rise to support the amendment. Clause 31 refers to the seeking of warrants from justices of the peace, where there is time to do so. Clearly, there will be situations where that is not reasonable and therefore we accept that there is a need to allow emergency entry— 48 hours should be sufficient to allow that warrant to be reviewed by a justice of the peace. We welcome that the Government reduced emergency entry from a month to 48 hours, but it is perfectly reasonable that it should be looked at by a justice of the peace within two days.

[Joseph Johnson]

I thank the hon. Member for Kingston upon Hull East and for Central Ayrshire for raising the issue of emergency powers. The clause confers on the Secretary of State the power to grant an enforcement authorisation to carry out any specified action in the most urgent cases, such as a serious risk to national security, compliance with our international obligations or people’s health and safety. The amendment tabled by the hon. Gentleman would seek to require that such an enforcement authorisation be evaluated by a justice of the peace within 48 hours of the 48 hours that the authorisation has been in force.

The Government have listened carefully at all stages of the discussion of the provision and addressed concerns before the Bill was brought to the House. Before the Bill’s introduction, the Science and Technology Committee raised concerns about the length of time for which an enforcement authorisation would remain in place. In response to that helpful intervention, we reduced the time for which an enforcement authorisation can remain in place from one month to 48 hours.

The Opposition in the other place attempted to introduce amendments similar to that tabled by the hon. Gentleman. The amendments are not clear on the purpose that a post hoc evaluation by a justice of the peace would serve—the order would have already been spent and the specified action taken. It is also not clear what is expected to follow from any such evaluation. However, the Government have reflected further on the amendments and the intentions underpinning them. Officials have carried out extensive discussions with colleagues across Whitehall, including in the Ministry of Justice, the chief magistrate’s office and the Home Office, which is responsible for the powers of entry gateway process. None of the discussions resulted in the suggestion that the power should be amended as the amendment proposes. An important reason for that 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.

Let me reassure hon. Members that there are adequate safeguards in the Bill with respect to the exercise of this significant power. 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 the 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.

In response to concerns previously raised about the exercise of this power without sanction by an independent judicial authority, it is important to note that the decision of the Secretary of State to issue an enforcement authorisation could be challenged by judicial review. I would also point out that this power is more conservative and requires more stringent authorisation than other comparable powers of entry, such as those of nuclear inspectors or health and safety inspectors who are provided with a standing authorisation and may act at their discretion. The power would be used only in the most serious and urgent cases, but it is necessary to ensure that those involved in spaceflight activities and third parties are adequately protected should such situations arise.