Space Industry Bill [HL]
25.This Bill had its Second Reading on 12 July. It provides for the creation of a regulatory framework to enable commercial spaceflight activities to be carried out from UK spaceports.
26.A delegated powers memorandum has been provided by the Department for Transport.6
27.The House of Commons Science and Technology Committee examined the draft Spaceflight Bill towards the end of the last Parliament and invited our views. Given the importance, novelty and intrusiveness of many of the Bill’s provisions, we recommended that some delegated powers be removed altogether and that others be upgraded to the affirmative procedure.7
28.We warmly welcome the opportunity that we were given to work so closely and productively with the House of Commons Science and Technology Committee on the draft Spaceflight Bill. We equally welcome the fact that the Government have incorporated so many of our recommendations in the new Space Industry Bill.
29.We draw the attention of the House to two remaining matters.
Statutory guidance
30.There are several provisions in the Bill allowing the Secretary of State and the regulator to issue guidance8. No parliamentary procedure attaches to the issuing of this guidance. The Department for Transport justifies this on the ground that the guidance is intended to be “user-friendly, detailed and intended to aid policy implementation by supplementing regulations rather than being intended to substitute any legislative provision”.
31.We have mentioned at paragraph 18 the distinction between guidance that people must have regard to and guidance that they need not have regard to. Most of the provisions allowing the Secretary of State or the regulator to issue guidance do not require the recipient to have regard to it. If there is no statutory requirement to have regard to the guidance, we accept that there is no compelling reason for any parliamentary procedure.
32.In our view, clause 9(8), the one provision that requires the regulator to have regard to guidance given by the Secretary of State,9 should be subject to parliamentary scrutiny given its legal significance, the negative resolution procedure being sufficient.
Affirmative regulations
33.Clause 67 increases the number of regulations subject to the affirmative procedure from four to 13. However this is not quite the whole story. Of these 13 affirmative sets of regulations, five involve the first set of regulations being affirmative and subsequent regulations being negative. We have several observations to make.
- The technique is open to abuse. The first set of regulations, the affirmative ones, might only be very short, leaving subsequent negative regulations to provide the real substance. We assess delegated powers not merely on how the present Government propose to use them but on how any future government could use them.
- The Government say this approach will save a disproportionate amount of parliamentary time and facilitate timely updating, there being no need for parliamentary debates. This is unconvincing and, if applied generally, would argue for the adoption of the negative procedure - or no procedure at all - in all cases.
- In the case of safety regulations under clause 18, the Government have justified their approach because the continuous updating of safety regulations should occur in a “nimble and proportionate” way. However, if the subject matter - for example, safety regulations - is one that calls, in principle, for the affirmative procedure, it should not matter whether the regulations are the first, second or third set of regulations. They should all be affirmative.
34.The commercial spaceflight industry is a new one. We do not know the hazards and the pitfalls. We do know that safety is not something that can be pushed into the background and that the precautionary principle obtains. Our view is that the five powers, including safety and security, where the Government wish to make the parliamentary procedure “initially affirmative, subsequently negative” should be affirmative on all occasions.10
6 Department for Transport, Space Industry Bill [HL]: Delegated Powers Memorandum: https://www.publications.parliament.uk/pa/bills/lbill/2017-2019/0007/18007-DPM.pdf [accessed 13 July 2017]
7 Written evidence to the House of Commons Science and Technology Committee inquiry on the Draft Spaceflight Bill from the Delegated Powers and Regulatory Reform Committee (SFB0012)
8 For example, clauses 7(7), 9(7) & (8), 17(3), 18(3) and 22(3).
9 The guidance is about what the applicant for a spaceflight operator licence may, or must, do in order for the regulator to be satisfied that the operator has complied with health and safety requirements.
10 The five cases are clauses 5(2), 7(6), 12(7), 18 and 22 dealing with “range”, “range control” services, licence conditions, safety and security.