11.An enforcement regime is set out in clause 31, whereby a justice of the peace may issue an ‘enforcement warrant’ in certain circumstances if, for instance, there are reasonable grounds for believing that a person is carrying out spaceflight activities without a licence or in breach of licence conditions. Enforcement warrants may authorise extensive powers, including powers to enter property and to use reasonable force. For urgent cases, an alternative regime is set out in clause 32. This allows the Secretary of State to grant an ‘enforcement authorisation’ if satisfied that the case is urgent and that relevant conduct or anticipated conduct gives rise to a serious risk (a) to national security, (b) of contravention of any international obligation, or (c) to the health or safety of persons. Such an authorisation permits a named person to do “anything necessary” for protecting national security, securing compliance with international obligations or protecting health or safety.
12.The power conferred by clause 32 is very broad, yet the Bill lays down no system of judicial oversight (either anticipatory or post hoc). The House of Commons Science and Technology Committee expressed concerns about this aspect of the Draft Bill. The Bill differs from the Draft Bill in one significant respect: whereas the Draft Bill provided that enforcement authorisations endured for one month, the Bill limits them to two days. However, this is without prejudice to the range of things that can be done, without judicial authorisation, pursuant to such authorisations. This aspect of the Bill may be contrasted with the Investigatory Powers Act 2016, under which warrants issued urgently by the Secretary of State must be approved by a Judicial Commissioner within three working days. Warrants issued under that Act are liable to remain in place for longer than enforcement authorisations—whose use will tend to be on a one-off basis—issued under the present Bill. Nevertheless, comparable issues are raised.
13.In its response to the House of Commons Science and Technology Committee, the Government said:
“In line with the Committee’s recommendation, we have reduced the period for which an authorisation would be valid from one month to 48 hours. This limits the Secretary of State’s power and if a longer authorisation is required, it will be necessary to get a warrant from a Justice of the Peace under clause 31 (Warrants authorising entry or direct action).”
14.The reduction in the time for which an urgent authorisation may apply is welcome. However, we are concerned that such wide-ranging and potentially draconian powers would be exercisable without anticipatory or rapid post hoc judicial involvement. We draw attention to these enforcement authorisations and call on the Government to consider post-hoc judicial approval of their use.
13 House of Commons Science and Technology Committee, (Fourteenth Report, Session 2016–17, HC 1070), paras 75–80
14 Investigatory Powers Act 2016 (interception warrants), (equipment interference warrants), (bulk equipment interference warrants), and (specific bulk personal dataset warrants).
15 HM Government, Government Response to the Science and Technology Committee Report: The Draft Spaceflight Bill, Cm 9465, June 2017: [accessed 22 August 2017]