Space Industry Bill [HL] Contents

Chapter 2: Delegated powers

Breadth of certain delegated powers

4.The number of delegated powers granted by the Bill is notable—the Bill has 71 clauses and confers approximately 100 delegated powers. Some of those powers are very broad. For example, clause 17(1) states that regulations “may make provision with respect to the training, qualifications and medical fitness” of certain categories of individuals. Schedule 2 contains illustrative examples of such ‘training regulations’, but that list explicitly does not circumscribe the regulation-making power (clause 17(2)). A similar model is used in relation to ‘safety regulations’ (clause 18 and schedule 3) and ‘security regulations’ (clause 22 and schedule 5).

5.Some quite fundamental policy choices will be made via these delegated powers, rather than being determined on the face of the Bill. For instance, it is not clear from the face of the Bill who will perform the extensive regulatory functions created by the Bill: regulatory functions may be performed by the Secretary of State, or by the Civil Aviation Authority (if the CAA has been designated by regulations in respect of relevant functions), or by “another person” (clause 15).7

6.A Bill which contains a large number of delegated powers in lieu of policy detail can be challenging for Parliament to scrutinise meaningfully, as it is more difficult to form an accurate impression of what the legislative package as a whole will look like. In such circumstances, scrutiny can be aided by the publication alongside the Bill of illustrative regulations giving a sense of how the Government envisages using the delegated powers contained in the Bill. The Government has not published any draft regulations for this Bill, but has produced ‘policy scoping notes’ outlining the proposed content of the regulations.8 Such notes are a relatively novel addition to the forms of explanatory material that may accompany a Bill, having been used once previously for the Bus Services Bill 2016–17.9 The notes are relatively detailed, and, while not a full substitute for detail on the face of the Bill or for illustrative regulations, they go some way towards assisting scrutiny by giving a sense of how delegated powers are likely to be used. We draw attention to this new form of supporting documentation for legislation.

Henry VIII power

7.Clause 66(2) provides: “The Secretary of State may by regulations make provision that is consequential on any provision made by this Act.” This is a Henry VIII power, since it can be used to “amend, repeal or revoke any enactment passed or made before this Act or in the same Session” (clause 66(3)). The affirmative procedure applies whenever the power is used to make regulations that amend primary legislation (clause 66(4)). However, the same is not true of regulations that repeal primary legislation: the use of the affirmative procedure is stipulated only in respect of amendment of primary legislation. Meanwhile, clause 66(5) provides that a “statutory instrument containing regulations under this section none of which amends primary legislation is subject to annulment.” We understand that the Government intend ‘amend’ to implicitly include ‘repeal’, as repealing a provision of an Act would constitute amending it. We recommend that the Bill is explicit that the use of this power either to amend or to repeal primary legislation is subject to the affirmative procedure.

8.This power has consequences for the devolved institutions. The Bill states that ‘primary legislation’ includes legislation enacted by the devolved legislatures (clause 66(6)). The Bill does not, however, make any provision for the devolved legislatures’ consent to be sought in respect of regulations amending or repealing devolved legislation.10 We noted a comparable issue in our scrutiny of the Wales Bill 2016–17.11 The House may wish to consider whether it would be more appropriate for the consent of the devolved legislatures to be required when this power is used to amend or repeal legislation enacted by them—as, for example, is the case for certain statutory instruments made under the Legislative and Regulatory Reform Act 2006 and the Public Bodies Act 2011.

Catch-all regulation-making power

9.Clause 67(1) provides: “Regulations may make provision generally for carrying this Act into effect and for achieving the purpose set out in section 1(1).” Clause 1(1) provides that the Bill has effect for the purpose of regulating space activities, sub-orbital activities, and associated activities carried out in the UK. This is a catch-all regulation-making power. Such a power is not without precedent,12 but it is unusual, and may have significant implications.

10.An important constitutional safeguard in relation to regulation-making powers lies in the possibility of judicial review should Ministers exceed the delegated authority conferred by the relevant provision. However, the existence of the general power in clause 67(1) may undercut judicial review in this context. In particular, the inclusion of such a power will make it more difficult to argue that the scope of regulation-making powers has been exceeded. The general power also makes the limits on particular powers set out elsewhere in the Bill less important, because, at least in some instances, it will be possible to meet the argument that the limits of a specific power have been exceeded by relying instead on the general power. This possibility is enhanced by the very broad terms in which the general power in clause 67(1) is framed, given its reference back to purposes set out in clause 1(1) in highly general terms. We draw attention to this catch-all regulation-making power. The House may wish to seek clarification from the Government about its necessity and intended use.

7 The Government has, however, indicated that it anticipates that regulatory functions will be performed by the Civil Aviation Authority in relation to certain matters and by the UK Space Agency in respect of others: Department for Transport, Space Industry Bill: Policy Scoping Notes (2017), p 39: [accessed 22 August 2017]

8 Department for Transport, Space Industry Bill: Policy Scoping Notes (2017)

9 Department for Transport, Bus Services Bill Policy Scoping Notes 2016–17 (June 2016): [accessed 22 August 2017]

10 The Sewel convention—by which the UK Government will ‘normally’ seek the consent of devolved legislatures when legislating on their behalf—relates only to the enactment of primary legislation, and therefore does not apply here.

11 Constitution Committee, Wales Bill, (5th Report, Session 2016–17, HL Paper 59), para 88

12 For example the Civil Aviation Act 1982, section 60(2)(b) authorises the making of Air Navigation Orders containing “such provision as appears to Her Majesty in Council to be requisite or expedient … generally for regulating air navigation”.

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