Appendix 2: Space Industry Bill [HL]: Government Response
Letter from Rt Hon. John Hayes CBE MP, Minister of State at the Department for Transport, to Baroness Fookes, Chairman of the Delegated Powers and Regulatory Reform Committee
I am grateful to the Committee for its in-depth consideration of the merits of the Bill.
The Government also the noted the concerns of the Committee in their report to the Science and Technology Committee dated 5 April 2017. The Bill that was introduced into Parliament in June this year endeavored to take account of these concerns. More of the powers in the Bill are now subject to the affirmative resolution procedure at every use or at first use. I believe this now gives Parliament greater scrutiny of the associated secondary legislation.
I would like to take the opportunity to respond on the two areas to which the Committee drew attention in order to help the House with its deliberations on these points. I have carefully considered the Committee’s analysis and its conclusions, and I respond to each recommendation in turn.
(i) In our view, clause 9(8), the one provision that requires the regulator to have regard to guidance given by the Secretary of State, should be subject to parliamentary scrutiny given its legal significance, the negative resolution procedure should be sufficient.
It is Government policy that guidance should not be used to circumvent the legal rules set out in primary and secondary legislation, which are themselves subject to parliamentary scrutiny. Government accepts that, if the policy is to create rules that must be followed, this should be achieved using regulations subject to parliamentary scrutiny and not guidance. The purpose of guidance is to aid policy implementation by supplementing legal rules. There is a vast range of statutory guidance issued each year and it is important that this can be updated rapidly to keep pace with events. It is proposed that guidance issued under the Bill will focus on the regulators’ desired outcomes regarding compliance with requirements rather than defining in detail how these outcomes should be achieved.
On this basis it would not seem necessary or appropriate for such guidance to be subject to parliamentary procedure.
There is nothing to prevent Parliament from scrutinising guidance at any time. I can reassure the Committee that our approach to guidance will be transparent in a similar way to the guidance given to the Civil Aviation Authority (CAA) by the Department for Transport. An example of this is the guidance given to the CAA on environmental objectives in respect of their air navigation functions - the Transport Act 2000 s. 70(2)(d) requires the CAA to take account of this guidance when exercising those functions. This provides guidance to the CAA on the way in which they deal with airspace changes (such as segregating it) and is one of the elements that the CAA must take account of when making airspace decisions.6
The initial guidance will also be subject to a full consultation to enable scrutiny and comment from all those with an interest. This is intended to take place at the same time as the consultation on the draft statutory instruments in late 2018.
(ii) 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.
The Government has given careful consideration to this recommendation by the Committee and notes the concern raised that the parliamentary procedure proposed could be open to abuse in the future. I can assure the Committee that the first set of regulations covering range, range control services, licence conditions, safety and security will be comprehensive and cover all relevant aspects of these activities. This is the approach that the Government is committed to in the interests of accountability and transparency to provide certainty to Parliament and industry. The Government is aware that if it were to make the initial instruments skeletal and leave much of the detail to subsequent instruments, the Joint Committee on Statutory Instruments would be likely to regard this as an unexpected use of powers.
The development of the first sets of regulations (including those relating to safety and security) will also be subject to a rigorous stakeholder engagement process. This will include a number of meetings and events with a range of industry and other interested stakeholder over the coming weeks and months. The Government will be issuing a full and wide ranging consultation on each of the draft statutory instruments in late 2018.
Going forward, any subsequent regulations that would materially change the substance of the original instruments would also be subject to consultation. In light of this, the Government believes that the negative resolution procedure for subsequent regulations provides appropriate and proportionate parliamentary oversight.
12 September 2017