Committee (2nd Day)
Relevant documents: 1st and 2nd Reports from the Delegated Powers Committee and 2nd Report from the Constitution Committee
Clause 33: Liability of operator for injury or damage etc
34: Clause 33, page 23, line 37, leave out subsection (1)
My Lords, Amendment 34 is about noise. Some 36 years ago I had a very pleasant life as a 747 co-pilot; it really was a splendid lifestyle. One would be given permission, on departure, to fly at 35,000 feet. You would think the difficult bit would be the take-off, but it is not particularly so. You point the plane down the runway, get to about 180 or 190 miles per hour, then pull the stick back and 320 tonnes of aircraft, including yourself and the captain, goes gracefully into the air. That is when the trouble starts, because you start to fly what is called a standard instrument departure, which often involves lots of twists and turns very early in the departure. The reason for that, not just in the UK but across the world, is to follow a minimum noise route. If you do not follow such a route, someone will ring up the airport, the airport will ring up your employer and your employer will have a free and frank discussion about your career. Noise has been at the top of the list of concerns about civil aviation since the jet age. Early jets were extremely noisy. I was privileged to fly the VC10, which has a noise footprint comparable to that of a satellite-inserting rocket; at least that is what my wife used to say.
In the Bill, I looked for provisions to protect people around spaceports from noise. From looking through the Bill—I am sure the Box will send a note if I am wrong—I am pretty sure that the word “noise” does not appear anywhere in it. I did not look for its near relative, the word “nuisance”, which is what would be used in virtually any other environment. It is normally common-law rights—I am not a lawyer but I think they are called torts—to quiet enjoyment that allow one to use the courts to restrain the nuisance other parties bring to one. Looking for the word “nuisance” in the Bill—once again, I await correction—I believe it appears once, on page 23, in Clause 33(1), which states:
“No liability arises in trespass or nuisance in respect of spaceflight activities carried out in compliance, or substantially in compliance, with the requirements and conditions imposed by or under this Act”.
In other words, the only reference to “nuisance” is to deny citizens the rights to use the courts to protect themselves.
Nowhere in the paperwork can I find the Minister writing to me and saying it, but I think he has said informally that this is just like aviation law, which has a similar clause that we will deal with in the same way. The folklore was that it was as simple as that, but I thought I would look it up. The most useful reference I found—I used Google; let us be realistic—was an online publication, politics.co.uk. I checked it out with our press department and I am sure it is a respectable organisation that does not produce fake news. The site had a section on aviation noise, which I will quote, simply because it is so much better worded than any speech I could create:
“The Air Navigation Act 1920”—
I knew it had gone back a long time—
“provided the basis of the UK’s aviation noise regulation regime, by exempting aviation from nuisance sanctions, in order to stimulate the nascent industry. This principle was reaffirmed in the Civil Aviation Act 1982, which nonetheless set out a number of provisions for controlling noise at larger airports through a process of ‘designation’, which has only been applied to date to Heathrow, Gatwick and Stansted. By their Section 78 designation, the Transport Secretary is responsible for regulating take-off and landing noise at these airports”.
So I sped to the Civil Aviation Act 1982 to see how it exempted aeroplanes from noise sanctions. Section 76 says:
“No action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable, or the ordinary incidents of such flight, so long as the provisions of any Air Navigation Order and of any orders under section 62 above have been duly complied with”.
Even that implies more control than the bland subsection in the Bill that I recommend be deleted. In fact, I hope the Minister will come back with a much better balanced subsection.
I then went on to read Section 78 of the Act, which is really quite powerful:
“The Secretary of State may by a notice published in the prescribed manner provide that it shall be the duty of the person who is the operator of an aircraft which is to take off or land at a designated aerodrome to secure that, after the aircraft takes off or, as the case may be, before it lands at the aerodrome, such requirements as are specified in the notice are complied with in relation to the aircraft, being requirements appearing to the Secretary of State to be appropriate for the purpose of limiting or of mitigating the effect of noise and vibration connected with the taking off or landing … at the aerodrome”.
That section has enabled communities around those major airports to be protected over the years since 1982. I continue to quote from politics.co.uk, which says:
“In practice, noise restrictions at designated airports”—
Heathrow, Gatwick and Stansted—
“have been implemented through restrictions on departing aircraft noise, controls on night flying and (at Heathrow and Gatwick, under Section 79) housing noise insulation schemes … At other airports, the successive governments have continued to favour local resolution. Councils’ main instrument in this regard is the Section 106 Obligation, a condition that can be placed on planning permission. These Obligations can limit movement numbers, operating hours and the types of permitted aircraft. Voluntary agreements can also be reached. London City Airport and Luton Airport, for example, have agreed maximum noise exposure contours, which must not be exceeded”.
I put to the Minister that a combination of the fact there can be designation and the fact there is precedent for these local resolutions is why air operators agree these local agreements. There is a parallel in some of the banking regulations: because strong powers exist for government to implement appropriate protections, local agreements emerge. There is no strong power in this Bill to which communities can look. Therefore, I believe the Bill is insufficient to achieve the objective.
Compared with Clause 33, the whole of the aviation industry is, by statute and practice, better equipped to protect from noise those who live around airports. The Bill should be amended by the Government to have a more comprehensive regime to ensure that when this industry is as successful as so many people described on Monday, with massive numbers of movements, those living around the spaceports have adequate powers to protect themselves from noise nuisance. I beg to move.
I must confess that in looking at the roster of the amendments, I tried to work out what the main thrust of the argument of the noble Lord, Lord Tunnicliffe, would be for deleting this provision. On hearing his detailed and comprehensive presentation, we find ourselves agreeing that there should be more powers to control noise than are currently available within the confines of the Bill. The noble Lord has identified that the provision may not be the optimal way to deliver that outcome. We would be interested to hear how the Minister might take this issue on board. The planning process should take it into consideration. The rejuvenated noble Lord, Lord Moynihan, will probably suggest that a launching facility that goes out over the sea may be one way of mitigating some aspects of the problems described. However, leaving that to one side, we believe that somewhere in the Bill firmer and more direct controls are needed within the armoury of Ministers.
I thank the noble Lord, Lord Tunnicliffe, for reminding us of the importance that Prestwick Airport has already attached to the noise question and agree with many of the points that he made. Nobody in this Chamber has as much experience or expertise as him when it comes to flying 747s—indeed, it will be principally 747s that are adapted for these purposes. Those airports from which such aircraft currently fly and land will already have taken into account the importance of the noise question. It is vital that the point raised by the noble Lord, Lord Tunnicliffe, be taken into account. There should be full consultation with local communities. This is a new technology for many of them and there will be considerable concern about the level of noise. That should be dealt with through the planning applications that will in many cases be necessary; it should also be done in any event by those seeking licences. They should communicate and engage with local communities and make sure that this point is high on the agenda. If that is what the noble Lord, Lord Tunnicliffe, is aiming for, I support him. I know that everybody associated with Prestwick Airport is already minded to focus on this important issue, although, as was rightly pointed out, we have the benefit of a runway which would be used to take off pretty much immediately over the sea.
My Lords, I thank the noble Lord, Lord Tunnicliffe, for moving his amendment—I shall say a few words about noise shortly. We have already had a helpful debate on Clause 33(5) and (6) and the power to cap an operator’s liability, but Amendment 34 would remove subsection (1). Under the amendment, an operator could be susceptible to claims for trespass or nuisance even where they had carried out their spaceflight activities in compliance with all the requirements placed on them.
I appreciate the concerns that noble Lords have raised about this clause and the possibility of spaceflight activities having an adverse impact on people in the locality. The clause is designed to balance the right to quiet enjoyment of one’s land against the right to carry out a commercial activity, and to ensure the minimal encroachment of rights where the operator is acting in accordance with the law. As the noble Lord acknowledged, it is replicated from Section 76(1) of the Civil Aviation Act 1982, which provides a similar protection for aircraft operators. We believe that this provision is necessary to prevent an operator who was acting lawfully from being sued by a third party who considers that his or her right to quiet enjoyment of land is being affected or interfered with.
I should highlight that given the nature of spaceflight activities, it is likely that spaceports will be set up in remote locations, very possibly in Scotland, where any noise or nuisance is likely to affect very few people. In comparison to aviation—where operators, I should remind the Committee, already have this protection—the number of spaceports and the frequency of spaceflight activities will be much fewer. The similar provision in the Civil Aviation Act protects aircraft against claims of trespass and nuisance. Therefore, where aircraft are used in spaceflight activities they already have protection against those claims, and for spaceports at aerodromes, the amendment would have little practical effect.
Our view is that subsection (1) is appropriate to enable spaceflight operators to carry out activities from the UK. It should also be stressed that such a protection does not apply if an operator does not comply substantially with all the requirements imposed upon them. This protection from claims of nuisance and trespass does not prevent anyone who has suffered injury or damage bringing a claim against an operator under the strict liability cause of action provided for in Clause 33(2) or under any other cause of action, such as negligence.
Let me give a little more detail on how frequently we envisage these operations being carried out and their noise impact. As the noble Lord, Lord Tunnicliffe, acknowledged, noise is undoubtedly a prime concern. My main ministerial responsibility is aviation, and I know all too well from my postbag of the difficulties caused to many communities where people live near or around airports. There will be a concern about launch operations; we need to acknowledge that spaceplanes and rockets create significant noise as they take off. Spaceplanes will also create significant noise as they pass overhead. Feedback from operators suggests that vertical launch operations could occur up to 12 times per year. These are indicative figures and would apply across the whole country. It is of course envisaged that in the early years of operations, launches will not even be as frequent as that.
It is difficult to provide an estimate of the launch frequency for suborbital spaceplane operations. Although precise noise levels have yet to be fully determined, initial indications based on published characteristics are that noise from spaceplanes should not create a more significant impact than noise from military fast jets. It is anticipated that in the immediate term, spaceports with horizontal launch operations will be able to comply with existing noise regulations, given that they will take place from a licensed aerodrome. Further analysis of the potential impact of noise will be carried out when a spaceport location is identified and the type of operations to be carried out from it decided. A spaceport operator would be expected to have planning permission for the use of the spaceport to carry out spaceflight activities, and the impact of noise will have been assessed as part of this planning permission.
Nevertheless, I accept the concerns about noise that have been raised by Members on both sides of the House. If your Lordships will allow me, I will therefore reflect further on the points made but in the light of those assurances, I ask the noble Lord to withdraw Amendment 34.
My Lords, I thank those who have spoken in this debate. I have mixed views about Prestwick: I have operated from it and done some training there. Sadly, I once burst two tyres there on a 747, so being there was not altogether an undiluted pleasure. It also has a runway that can be used in both directions but the other one points at Glasgow, roughly speaking.
I am very pleased that the Minister said he is going to reflect on this point. Of course, I entirely understand the importance of the clause and of protecting operators. We do not want to struggle with crafting an amendment that gives the Bill more teeth to help residents, but we might have to. It would be much better if the Government could put the issue of noise per se in the Bill, so that it has to be considered in the various processes. With that, I beg leave to withdraw the amendment.
Amendment 34 withdrawn.
Amendment 35 not moved.
Clause 33 agreed.
Clause 34 agreed.
Clause 35: Obligation to indemnify government etc against claims
Amendment 36 not moved.
Clause 35 agreed.
Clause 36: Regulator etc not liable in respect of spaceflight-related actions
37: Clause 36, page 26, line 18, after “misconduct” insert “or gross negligence”
It is always a pleasure to follow the noble Lord, Lord Tunnicliffe. He is the reason why I do not have a fear of flying. When I am sitting at the back—and it is always at the back—of a 747, I always assume that there is somebody up the front who knows a lot about getting it up and down and who has just the same reason for getting it up and down safely as I do. His interventions are important because there is a danger that we treat what we are talking about as just an extension of present civil aviation, and it is a step change, a quantum leap in what we are doing. In his first intervention, the noble Lord, Lord Tunnicliffe, pointed out that rockets are explosions, very possibly dangerous explosions at that.
This amendment strengths the test for the regulator to be liable in respect of spaceflight-related actions to include gross negligence as well as wilful misconduct. I am hoping it is just one of those things that got left out and that when the Minister sees the House of Commons Science and Technology Committee’s recommendation that such wording should be in the Bill he will stand up and say that he will make sure that it is. Given the central role of the regulator in determining how large aspects of spaceflight should be conducted, it seems fair and logical that it should have its protection removed in case of gross negligence.
The noble Lord, Lord Tunnicliffe, spoke about legislation being drafted nearly 100 years ago to stimulate a nascent industry. We are trying to do that in the Bill, but in so doing we have to make sure that there are also checks and balances to ensure that in making this step change in travel, those responsible have checks and balances on their behaviour that contribute to safety. I beg to move.
My Lords, I thank the noble Lord, Lord McNally, for raising this important issue. This clause sets out that a regulator and persons listed in subsection (2) are not to be held liable for their actions or omissions in relation to spaceflight activities or associated activities.
The primary concern of the Bill is to secure safety. As regulators of spaceflight activities, we will take all steps possible to ensure that the risks to the public are as low as reasonably practicable and that all spaceflight activities are carried out as safely as possible. However, given the nature of the activities, the regulator cannot guarantee that all the risks can be eliminated. I highlight that without such a clause, a regulator may be reluctant to take any action in relation to spaceflight activities—for example, licensing that activity—because of concerns that they will be subject to claims, in negligence or breach of statutory duty, in the event of loss or damage arising from regulated spaceflight and associated activities. This would inevitably affect the growth of the sector.
It should be stressed that the clause is not a free pass for a regulator and those listed in subsection (2). In cases of wilful misconduct, the protection afforded by this clause will not apply and the regulator and those listed people will be liable for their actions. This brings me to Amendment 37, which would include the words “or gross negligence” in subsection (3). That would limit the protection provided by the clause so that the regulator and others listed would be held liable in cases of both wilful misconduct and gross negligence.
As the noble Lord, Lord McNally, observed, this issue was also considered by the Science and Technology Committee in the other place. In its report, it recommended adding an exception for gross negligence. I take this opportunity to thank that committee for its invaluable work in scrutinising the draft Bill. However, public policy requires that public authorities, including regulatory authorities, act independently and without threat of litigation. I reiterate that shrinking this protection may mean that regulators will be reluctant to license space activities, which would undoubtedly affect the market.
The clause does not mean that no one is held accountable if things go wrong. Ultimately, spaceflight operators are responsible for the safety of their operation and activities and are therefore liable under the Bill for any injury or damage caused as a result. That is why the operator is held strictly liable; it means that a claimant who suffers injury or damage can bring a claim against the operator without having to prove fault. That is a key part of our policy—that the uninvolved general public have easy recourse to compensation.
We need to strike a balance here because this is a new activity for which safety cannot be guaranteed. Our view is that a gross negligence test would be inappropriate, and that the wilful misconduct test is more appropriate as it protects a regulator who is acting in good faith. Quite rightly, though, we are not proposing to protect a regulator that intentionally does something wrong. On those grounds, I commend the clause and ask the noble Lord to withdraw Amendment 37.
My Lords, I notice a couple of noble and learned Lords in the Chamber today, and I would be interested to see how they wrestled with that reply. I will of course withdraw the amendment now but I would like to consider the issue further and perhaps bring it back on Report, because there is an issue here that we may want to explore further. I beg leave to withdraw the amendment.
Amendment 37 withdrawn.
Clause 36 agreed.
Clause 37 agreed.
38: After Clause 37, insert the following new Clause—
“Consultation on the licensing and insurance of small satellites
(1) The Secretary of State must, within the period of one year beginning with the day on which this Act is passed, launch a consultation on the licensing and insurance of small satellites.(2) The consultation under subsection (1) must explore the following areas—(a) the suitability of a traffic light system whereby small satellites meeting certain launch, orbit and technical criteria can be fast-tracked to licensing;(b) whether in-orbit operations insurance could be waived completely for any such fast-tracked small satellites; and(c) how insurance requirements could be aggregated for constellations of satellites.”
My Lords, in moving Amendment 38, we seek to insert a new clause after Clause 37 which sets up a consultation on the licensing and insurance of small satellites, including what we call nano satellites, which I will speak to in a moment.
As was alluded to in our previous sitting, when my noble friend Lord McNally spoke about having the right level of liability and governance over these exercises, we seek to set up a process that recognises the varying risks according to the payload to be launched from these facilities. We want to reflect the relatively reduced risk posed by smaller micro-launchers and what are called nano-sat payloads, because both of these are growth industries which would be extremely valuable to the United Kingdom and could be a niche opportunity for such facilities, if they are to be successful. It is essential that the licensing, insurance and range-tracking costs are appropriate to the level of risk to payloads to allow the industry to succeed. We have already discussed how a burdensome regulatory requirement could negatively impact while, at the same time, in a series of amendments and new clauses, we have tried to maintain the right level of oversight.
In particular, a regulatory barrier exists around launch licensing for mega constellations. The current British law treats the nano satellite constellations no differently from large, $200 million satellites that go into geostationary orbit. Each satellite on a constellation is subject to the same licensing fee and must carry third- party insurance coverage of up to €60 million per satellite. Clearly, if there is an array of 750 satellites, it makes the whole affair expensive to insure, and it flies in the face of practice in other regimes, as I understand it.
The amendment would require the Government to consult on the desirability of changing how these small and nano satellites are insured and licensed, to ensure that it would be most beneficial to the industry while at the same time maintaining sufficient cover to be safe. I beg to move.
My Lords, this is an interesting point. I hope that the Minister will take it away and give it some consideration. I think we all agree that the whole issue of liability and insurance is important to get right so that the industry does not fail due to crippling cost.
My Lords, I thank my noble friend Lord Willetts, who is not in his place, for his comments in Monday’s debate about the need for flexibility for licensing constellations and the benefits of small satellites. I hope also to address the concerns of the noble Lord, Lord McNally, from that debate about the length of the licensing process and the insurance cost for smaller satellites—and, indeed, nano satellites.
This amendment gives me the chance to explain the work that the UK Space Agency is already doing to improve the current licensing regime under the Outer Space Act. This work is of course relevant to the Bill as, when it comes into force, it will regulate the operation of a satellite in orbit that is carried out from the UK.
The amendment moved by the noble Lord, Lord Fox, would make it mandatory that, within 12 months of Royal Assent, the Secretary of State must issue a consultation. This consultation would explore a traffic light system to license the operation of small and nano satellites, with the potential to waive the in-orbit insurance requirement under certain circumstances for some small satellites fast-tracked under that system. Finally, it would also explore how insurance requirements could be aggregated for constellations of satellites.
The UK Space Agency already has this work in hand, and I shall take this opportunity to set out what it is doing in more detail—at some length, I fear. The agency conducted a review to evaluate how the UK’s regulatory approach might be tailored for the in-orbit operation of small satellite systems. The outcome of the review was a series of recommendations, and comments on these recommendations were invited from industry.
Feedback was also sought at the regulatory advisory group, which is a meeting co-chaired by the UK Space Agency with industry, where the small satellite community is represented. This review allowed the agency to develop the traffic light system which is currently being trialled ahead of full implementation in the near future. This system gives potential applicants of standard, small satellite operations an idea of the likely outcome of their licence application in advance of lodging a full application. It is a fairly simple system. A green rating will be given where a mission is likely to get a licence; an amber rating signals that a mission is likely to get a licence with some modifications or clarifications; and a red rating means that the potential applicant is unlikely to receive a licence.
For recurrent applications for very similar missions by the same operator, the questions an applicant will be required to answer will be streamlined. Where an applicant is engaging in a repeat mission, some answers will be reused by UKSA in order to minimise the administrative overhead to operators. We expect this to speed up the licensing process for these types of missions.
At this point I shall say a few words about the way in which constellations are licensed. A constellation can be launched under a single launch licence if all the satellites can go on a single launch vehicle. However, the activity of operating a satellite also needs to be licensed as the operator needs to be licensed to carry out the in-orbit operation of each satellite. This is to ensure that the regulator has effective regulatory oversight of each satellite within the constellation. That allows the regulator to direct the operator to take action in relation to each satellite without affecting any of the other satellites under the control of that operator. For example, if 100 satellites are to be launched over four launches, an operator would need to submit only four applications and will result in a licence being issued for each of those 100 satellites.
In addition to the satellite system, the UK Space Agency is considering whether, for certain green-rated missions, the insurance requirement can be reduced or even removed. This assessment will be dependent on a number of risk factors, including the satellites’ operating altitude and whether they are equipped with propulsion systems that allow them to avoid potential collisions with other space objects. Furthermore, the agency is already evaluating policy options to tailor insurance requirements for satellite fleets or constellations, which we discussed in the debate on Clause 3. The feedback from industry is that obtaining a set level of insurance cover for every satellite in a large constellation is prohibitively expensive. Such a requirement could also quickly exceed the capacity of the space insurance market.
We understand that we need a solution that is available and affordable but still offers government and the taxpayer protection by providing sufficient funds in the event of a claim. UKSA is currently developing a policy model which is likely to require operators of multiple satellites to hold a given level of insurance coverage for the damage caused to third parties through collisions—in other words insurance per event rather than per satellite.
Key stakeholders will be invited to comment on the Government’s proposed new policy model, which has been developed in response to the space sector’s innovative approach towards new business models and the development of smaller and more capable satellites, including the nano satellite mentioned by the noble Lord. These matters will be discussed at a workshop on the traffic light system and the insurance requirements for small satellites, constellations and fleets, which is expected to take place by the end of this financial year.
As work on both the traffic light regime for small satellites and nano satellites and insurance requirements for constellations and fleets is already well in hand and likely to be finalised within 12 months of the Bill receiving Royal Assent, this amendment is not necessary. While we appreciate the content of the amendment, the agency is already engaging with the industry and a mandatory consultation in this area would be a duplication of work. I therefore ask the noble Lord to withdraw Amendment 38.
I thank the noble Baroness for her comprehensive answer, and I will be studying it closely in Hansard as it is hard to take in on the fly. If she could write to me about the basic criteria used to flag green, red and amber, that would also be helpful, to give an idea of the parameters being used to make those judgments. On that basis, I beg leave to withdraw the amendment.
Amendment 38 withdrawn.
Debate on whether Clause 38 should stand part of the Bill.
My Lords, I rise to speak to whether Clauses 38 and 40 should stand part of the Bill. The issue is about land, and Clause 38 deals with the powers to obtain rights over land. The noble Lord has written me a splendid letter—not that I am suggesting that any of his other letters were not splendid—in which, on page 4, he said:
“To enable the safe operation of spaceports, particularly during launch, the Bill makes provision to allow minimal rights over land. I strongly believe that these powers are proportionate and ensure that the rights of landowners are respected”.
I have had a look at Clause 38, and it did not feel very minimal. I shall read the bits that I think are important. First, subsection (1) says:
“The Secretary of State may make an order under this section if satisfied that it is expedient to do so—
(a) to secure the safe and efficient use for the carrying out of spaceflight activities of any land which is vested in a qualifying person or which a qualifying person proposes to acquire,
(b) to secure the provision of any services required in relation to any such land, or
(c) to secure that spacecraft and carrier aircraft may be navigated safely”.
Subsection (3) defines three qualifying persons, the third being the,
“holder of a spaceport licence”.
Subsection (4) starts to set out what may be granted by such an order. Subsection (4)(b) refers to,
“rights to carry out and maintain works on any land”,
and subsection (4)(c) to,
“rights to install and maintain structures and apparatus on, under or over any land”.
Subsection (5) says:
“An order under this section may—
(a) include provision authorising persons to enter any land for the purpose of carrying out, maintaining, installing or removing any works, structures or apparatus”.
Subsection (10) says:
“For the purposes of this section, a reference to carrying out works on land includes a reference to excavating the land or carrying out levelling operations on the land”.
I am not a lawyer, but my recollection is that the concept of ownership is related to the concept of enjoyment. For ownership to be real, you must be able to enjoy what you own. To say, as the Minister does in his letter:
“I can assure you that the Bill does not give spaceport or range control operators powers to acquire land, or for the Secretary of State to do so on their behalf”,
really is not honest. Well, I do not want to say that it is dishonest, but it is not truthful.
You do not enjoy a piece of land when someone can come in, carry out and maintain works, or install a 50-foot tower in your back garden. That is not enjoying the land. The Bill stresses that it can be on, under or over your piece of land. You have to allow the appropriate person to enter and to excavate, so you have a JCB in your back garden—you do not have enjoyment of your land. It is useless, hence the land would be valueless.
I hope the Minister will reconsider the wording of this clause. I know that I am going to be told that such an intrusion would never take place, but I should like the Bill to say that it will never happen by recognising that, if these powers are necessary, there must be an appropriate mechanism for a challenge. There is a mechanism, but we need a proper mechanism for a challenge—and, in that, there has to be a mechanism of redress. If these orders are issued, as far as I can see, my land becomes valueless and I am out of pocket. I am sure that that is not the Government’s intention, and I hope that they will reconsider the clause.
The noble Lord talks about Clause 40 in his letter, saying that:
“The power in clause 40 restricts the use of land for safety reasons during times of launch and landing. This is essential for ensuring public safety and minimising risks associated with launch. The restrictions which can be enacted by Clause 40 are temporary and are only likely to last for a matter of hours. Therefore I do not believe this represents a significant infringement of land rights”.
There is a problem with being told that these things are not going to happen very often. It seems to me that if they are not going to happen very often, they will not be very profitable. This assurance seems a bit like the Wright brothers, in December 1903, saying to the sheriff of Kitty Hawk, “This is not going to happen very often”. The whole point of the Bill is so that it can happen often.
Clause 40 restricts the rights of citizens to the quiet enjoyment of land, and I do not think that we have the proper mechanisms to take account of those restrictions. Similar restrictions have built up over the years on things such as military ranges and so on—but they were built up for reasons of national security, often in tense and difficult times, and they were accepted by society. These ranges are for a civil purpose and I just do not think that the balance in Clause 40 is right. I hope that the noble Lord will give some thought to this and try to improve the rights of citizens in these circumstances.
My Lords, I feel strongly about these two clauses, because I recognise them. I have been a Minister for whom civil servants have produced such clauses. They always have an answer: you tell the House that it is not going to happen very often, it will never be used badly and nobody in their right mind could think that it would be any trouble. I have always resisted all those, I have to say. I am a Conservative and I believe in the rights of property. I do not believe that anybody should be taking those away. I am also a believer in the human rights legislation, and I do not like the way that the Conservative Party has made comments about it. It has a very clear defence of the rights of property and I am not prepared to go along with such words, if they mean what the noble Lord, Lord Tunnicliffe, and I think that they mean. Maybe neither of us is clever enough to understand the hidden protection within them.
There seems to be no protection whatever in Clause 38; the Secretary of State appears to be able to use it,
“if satisfied that it is expedient to do so”.
Expedient is an extremely dangerous word. Expedient means anything that you want to do; that is why you want to do it—it is expedient. I have to say, I would not trust myself with expedience, leave alone trusting anybody else, and leave alone trusting this Secretary of State to be other than expedient. I do not get this clause, and I certainly do not get why it does not have the full panoply of proper means of protection of the people concerned.
I would like my noble friend to point to other areas where the same kinds of rights are given to the Secretary of State, where similar powers are given without any restriction, because I think that this is a very dangerous area. Nobody could be more enthusiastic about space than I—as long as nobody asks me to go in one of these things. It is a hugely important thing and I am entirely on the side of the Government in seeking to do what they want to do. It would be better if we did not have Brexit—then we would get more of it and a great deal more benefit from it, but that is true of almost everything. The fact of the matter still remains that, whatever happens, if we do or if we do not, this will affect people in this country and their rights to property. I do think that this clause, in its present form, should be presented by any Government, least of all by a Conservative Government who are supposed to believe in the rights of property.
I say very clearly to my noble friend that my problem with Clause 40 is that the only defence given for this provision is that it will not happen very often and will happen for short periods of time. Indeed, my noble friend said that it is okay because it will happen only for short periods of time. If that is the case, why does the Bill not say that? If it is going to be temporary, why does the Bill not say that? If that is not stated in the Bill, people will say, “The Bill does not say that it is temporary and therefore this time we are going to do it for three months”, or say, “Three months is what we meant by temporary”. I am afraid that is the other argument that civil servants try to use. I am trying to excuse my noble friend on the basis of the advice he has received rather than his determination. This measure seems to me contrary to the political position that he holds. After all, he would consider me rather a “pinko”, so I say to him that—
I beg my noble friend’s pardon. I hope that he is not laughing at that. First, the point I am trying to make is that if I think this measure is a serious incursion, he should doubly think that is the case.
Secondly, I want my noble friend to think again because there is no reason why we cannot include sensible protection in this power without in any way upsetting its balance. Thirdly, I do not think anybody who wants to start a space station would think that they had carte blanche in that regard so long as the Secretary of State thought that was expedient. Fourthly, if we turn this on its head, what happens if such a measure is necessary and the Secretary of State does not think that it is expedient? It seems to me that the Government have to be much more specific about what these provisions mean before this House should accept them. Lastly, this is a matter for this House, which is supposed to be very much the guardian of the constitution. Quite a lot of legislation will come in front of this House where, whatever our views are—we may be very much in favour of space, for example—we have to stand up for the rights of the citizenry. I think that we are going to talk about that a lot. Above all, we have to talk about the danger of handing to Ministers powers which are expedient and not considerably restricted to the purposes for which they are needed.
My Lords, I associate myself enthusiastically with the comments made by the noble Lords, Lord Deben and Lord Tunnicliffe. I touched on these issues when we discussed Amendment 13 on Monday. They relate clearly to the similar issues I raised in relation to Shell Island. It seems to me that line 42 and onwards on page 27 are especially important. The Explanatory Notes state that it is envisaged that these powers will be used only “as a last resort” when commercial options have been exhausted. That chimes very well with the noble Lord’s comments. On Monday, I demonstrated in my comments on Shell Island how quickly you can exhaust commercial options.
The Explanatory Notes also use the phrase,
“land in the vicinity of the spaceport site”.
I have a detailed question for the Minister: what does the term,
“the vicinity of the spaceport site”,
actually mean? Is there a legal definition of that, because we are talking about long-range travel and we could be referring to a very large area around the spaceport site that would in effect be intruded upon in terms of its rights and its use as a result of this wording.
Clause 40 contains the power to restrict the use of land to secure safety. This may include preventing people entering a given area of land for the duration of a launch window. The nearest simile I can think of is people who live near MoD ranges. People in those areas are well aware of the intrusion that that imposes on their lives. This is a very intrusive power and it could extend over a wide area, for the reasons I have already referred to.
If the Bill does the job it is intended to do and the spaceports become successful and well used, I assume that this power could be imposed on a weekly, if not a daily, basis. The Minister himself referred to a possible monthly basis. The people who have lived around Heathrow for a long time refer to the fact that it was once a quiet little airport and no one envisaged its growth. We therefore need to plan for a future where this kind of thing is a daily occurrence, and the power we are looking at here could be a huge imposition on people in those areas.
I wonder how this interacts with the image of a new tourism industry and viewing platforms that the noble Lord, Lord Moynihan, mentioned in his speech on Monday. Will this fit with that concept of how space travel and the space industry will develop in the future? I think again of my happy campers on Shell Island. How will this impact on their summer holidays and on the business that is so well established there? I use that as a real-life example of the kind of impact this kind of activity could have. I entirely endorse the comments of both noble Lords; we need much more precision in these clauses.
Briefly, there seems to be an internal inconsistency around the frequency and the success of these spaceports. Not only is it envisaged that they would launch commercial satellites but that they would launch recreational spaceflights—I believe that was set out at Second Reading. For that dream to be realised, it seems unrealistic that only 12 flights a year would be the norm. Once again, therefore, across the board, the idea that, “It won’t happen very often, so it doesn’t matter”, is not a reasonable response.
In the absence of the noble Lord, Lord Moynihan, I would hate the opportunity to go past without mentioning Prestwick and the spaceport again. I have a lot of sympathy with what the noble Baroness, Lady Randerson, says. Although the airport at Prestwick is already well established, with a clear area around it where the public do not come, that will not be true of everywhere. The lack of precision in these clauses, even for somewhere like Prestwick where it is clear where the field of operations will be, still does not do the job. The Government need to think again about being rather more precise in these clauses around what exactly they mean with regard to these restricted areas and what those restrictions will mean. I can see that in other places, where the airport is perhaps not as established or as big, there may be difficulties. I therefore have a lot of sympathy with the noble Baroness’s argument.
My Lords, I thank your Lordships for this short but sharp debate, which was so excellently introduced, as always, by the noble Lord, Lord Tunnicliffe. I shall endeavour for my response to be as splendid as he intimates some of my letters to him are.
I also thank my noble friend Lord Deben for his contribution. I would never accuse him of being a “pinko”—despite the pocket handkerchief that he is wearing today. We of course have some fairly profound policy differences, but I hope that I will be able to answer his concerns on the matter of land provisions in the Bill.
A number of noble Lords expressed concerns about these provisions, but I reassure them that the Government are taking a responsible and balanced approach. Powers are restricted to what we believe is strictly necessary and proportionate for securing safe spaceflight operations. Clause 38 allows for the creation of orders granting rights over land. Such orders may be necessary to ensure that utilities and other supporting infrastructure can be installed and maintained—for example, for radar or surveillance.
Spaceflight from the UK will be conducted on a commercial basis, and as such we expect operators to negotiate access in the vast majority of cases. Such an order would be created only as a last resort where negotiation with the landowner has failed to produce a mutually agreeable outcome. Schedule 6 sets out further provisions for such circumstances, including how notice for such orders should be given and how proposed orders can be objected to. Spaceflight is a new opportunity for the UK, and as technologies develop we want to ensure that any equipment necessary for safe spaceflight activity can be installed, maintained and removed as necessary.
I will say a few words about Clause 40 and then come back to some of the points that were made. Clause 40 continues the approach that the Government have taken of ensuring that safety is at the heart of the Bill. The clause allows the Secretary of State to restrict or prohibit the use of land or water around the times of launch and landing to protect the public. Any order made under the clause would be temporary. It is not our intention to unnecessarily restrict the actions of people who use these areas of land or water.
This power would be used only as a last resort in circumstances where operators had been unable to negotiate restriction arrangements with local landowners or users of affected land or water. Contravention of any order under this clause would be an offence. The safety of the general public is critical and therefore it is vital that the Secretary of State has sufficient power to enforce this vital safety measure.
I will now say a few words about the points that were made and answer some of the questions. I believe that it was the noble Baroness, Lady Randerson, who asked about a definition of “vicinity” and about what size area would be affected. Launch from the anticipated vertical-launch spaceport sites of course will be towards the sea. We therefore expect that only small areas of land will be affected by these orders. The regulator can also use licence conditions to ensure that spaceflight activities do not have a disproportionate impact on populated areas. Schedule 1 lists indicative licence conditions. These include conditions relating to trajectories and mission profiles as well as conditions imposing restrictions on areas where, and times when, spaceflight activities can take place. The exact type of launch and mission—
I wonder whether, in further detail, the Minister could write to me explaining exactly what a “small area” of land is. I assume we have examples from across the world of the kind of size of area that has to be set aside during operations such as this, and it would be very useful to have some idea of how large the affected area will be.
I will come on to explain that—but, of course, if the noble Baroness is not satisfied I will be very happy to write her another letter, splendid or otherwise.
Horizontal-launch sites will be aerodromes and therefore subject to provisions similar to those in the Civil Aviation Act 1982 that apply to aerodromes. We therefore expect that the main use of this power, if it is needed at all, will be for vertical-launch spaceports. On vertical launch we will continue to learn from countries that have extensive experience of launch. One such example is the United States, where the Federal Aviation Administration has implemented a launch-site boundary with a radius of 2.2 kilometres from the launch point for small vertical-launch vehicles that are likely to be similar to those that will be launched from the UK. This is an area to which access is restricted during a launch window. The proposed sites are much further away from local towns than the area that is likely to be restricted under a Clause 40 order.
I turn to some of the points made by my noble friend Lord Deben. Interestingly, the power is based on similar powers in the Civil Aviation Act 1982. I do not know whether my noble friend was a Minister in another place when this Act was passed or a Member of Parliament during the debates, but the powers do not go as far as those in the Civil Aviation Act.
My noble friend Lord Deben also asked why we are doing it, if there will not be many launches. We believe that these powers are necessary in case a licence holder cannot, despite their best efforts, secure a deal for access to land or restriction of the use of land during launch and landing. Invoking the Secretary of State’s power would very much be a last resort.
Let us say I own the land of which we talk and have had a negotiation with somebody who says, “I’ll give you fourpence ha’penny”, and I say, “But I need five pence”. And I go on saying that and he goes on and on saying, “Four pence ha’penny”. Finally, he says that he cannot come to an agreement. What right do I have to appeal against the Secretary of State stepping in and saying that, because a discussion has been had and an agreement not reached, it is expedient to do this? Where in the Bill is my appeal right against the Secretary of State’s decision that it is expedient to overrule the fact that I, with all good intention, have not been able to get a deal? That is the bit that worries me. I am not worried about doing it; I am worried about the fact that I have no claim over the Secretary of State in these circumstances.
There is a right to object to any order made and we hope these matters could be the subject of negotiations. I hope my noble friend will accept that it is important that we do not allow a provision where a person perhaps not as reasonable as he might be in the circumstances could hold the whole operation to ransom. These things are always a matter of balance and there is a right to object to an order.
I am sorry, and I will not interrupt again, but with respect, this is not a balance. This is a perfectly simple statement that the Secretary of State can make an order and no one has a claim against that. One can object to the order, but as far as I understand it, there is no proper judicial circumstance in which one can insist that it is not expedient because there has been a perfectly good negotiation and the other party will not go away. I do not want to hold this up but I want to protect the rights of the person who has negotiated perfectly reasonably but failed to come to a conclusion, and then the Secretary of State steps in for some greater good, and that person has no claim except to object to the order. As far as I can see, if someone objects to the order, it will be a case of “objection overruled because it is not expedient”.
As I said, there is a provision for an interested party to object to the order if it has been proposed, and if the order has already been made then Schedule 7 provides for the quashing of the order. However, I take my noble friend’s point. We believe that the power remains necessary because of the limited number of sites suitable for spaceflight operations in the UK and the need to ensure that operators are not held to ransom and the UK is able to benefit from this growing industry. When we come back to this matter in the next debate, I will address the operation of orders and how they may be challenged. I hope my noble friend will allow me to address this further during the debate on Clause 42.
The noble Lord, Lord Tunnicliffe, asked about the appropriate mechanism for challenge. Schedule 7 provides a process to apply for orders made under Clauses 38 and 40 to be quashed.
On the matter of compensation for people who lose out because of these powers, in Schedules 8 and 9 there are provisions for compensation in connection with the diminution of value of land interests, damage to land, interference with the use of land and general disputes.
The noble Baroness, Lady Randerson, asked how long these orders will last. We expect orders restricting the use of land or water to be in place for only a short amount of time around the window of launch—typically a few hours—but the exact period will depend on the type of launch. I can give an assurance that they will be in place for the minimum necessary time to ensure the safety of the public. I hope I have addressed her comments about the size of the area affected. As I mentioned, “vicinity” is not defined in the Bill and if there were a dispute it would be given its ordinary English meaning by a court. The power may be exercised for only the limited purposes in the clauses.
I believe I have addressed the points. However, I take on board the strong feelings in the Committee on this issue. If noble Lords will allow me to go away and reflect further on the powers in this clause, I will come back to the subject. I ask the noble Lord, Lord Tunnicliffe, to withdraw his objection to the clause standing part of the Bill. With those assurances, I shall reflect on the issue and come back to it at a future time.
My Lords, of course I will not press my objection to the clauses standing part because that was not the purpose of the exercise. The purpose of the exercise was to have this debate, which has revealed serious weaknesses in the Bill. The Minister’s response has not been satisfactory and I hope he will further reflect on this issue. If he thinks that we have simply misunderstood the Bill—which is hardly difficult with this Bill—I hope he will set out the detail of how compensation, proper redress and judicial activity may come about under the various clauses. So far, despite careful study by me, my colleague and our researcher, we have not seen those processes there. I hope he will do that, reconsider and introduce new thinking and amendments to meet the concerns. When someone like the noble Lord, Lord Deben, and I agree, a Minister should be worried.
With that, I assure the House that I will not oppose these clauses standing part. However, we may come back to them on Report. I want to avoid doing that. Crafting an amendment to give effect to our concerns would be a difficult task but we may be forced to do it if the Minister is not able to give a more favourable response privately and to assure us that he will propose something on Report.
Clause 38 agreed.
Clauses 39 and 40 agreed.
Schedule 6 agreed.
Clause 41 agreed.
Clause 42: Operation of orders
39: Clause 42, page 30, line 27, at end insert—
“( ) An order under section 38 or 40 cannot be made—(a) in relation to a spaceport or prospective spaceport in Scotland, without the consent of the relevant Minister in the Scottish Government;(b) in relation to a spaceport or prospective spaceport in Wales, without the consent of the relevant Minister in the Welsh Government; or (c) in relation to a spaceport or prospective spaceport in Northern Ireland, without the consent of the relevant Minister in the Northern Ireland Executive.”
My Lords, Amendment 39 is on a similar theme. It relates to Clause 42 and the operation of orders in relation to the land to be used for a spaceport. A proposal to make an order, or an order itself, under Clauses 38 or 40 may not be challenged in any legal proceedings. Furthermore, such an order becomes operative within six weeks, which is a very short period of time.
On the face of it, these are sweeping powers for the Secretary of State to create rights over land and to restrict the use of land to secure safety. I find it quite difficult to square this clause with the comments of the Minister in relation to the previous debate, in which he assured the noble Lord, Lord Deben, of the legal right to challenge. That is because this clause states specifically that that cannot be done.
The powers referred to in the clause are essentially planning powers, which are normally devolved in Scotland, Wales and Northern Ireland, so this amendment is designed to probe how the powers in the Bill that are conferred on the Secretary of State will operate in tune with the powers of the devolved Administrations. We have heard on several occasions that the devolved Administrations are supportive of the spirit of this Bill, but I am surprised, given that it relates so strongly to devolved planning powers, that it makes no direct mention of the devolved Governments. Here I draw a parallel with the Bus Services Bill. That also dealt with devolved powers and referred to the rights of the devolved Administrations in that respect.
As well as planning issues, the Bill deals with the licensing process, which is to be managed at the UK Government level as a UK Government responsibility. I would suggest to noble Lords that there could well be friction between the two sets of powers and between the two levels of government; in fact, it is unlikely that there will not be friction at some point. It is also inevitable that security issues will have to be taken into account, and those powers lie at both the devolved and the UK levels. The point I want to make is that this is a complex picture, so the amendment seeks to formalise the relationship between the UK and devolved Governments and to ensure that they cannot be overlooked.
I have no doubt that those Governments are supportive of the Bill now, but they may not always be so in every case. Good law should seek to allow for every possibility. I beg to move.
My Lords, I shall speak to Amendment 39 and the Motion that Clause 42 should stand part. The points made by the noble Baroness, Lady Randerson, underline why we support devolution, so we would not want this Bill to reduce in any way the responsibilities of the devolved Governments—along with the devolved city state of Prestwick.
Our concern with Clause 42 as a whole is that we do not understand why orders made under what will be Sections 38 and 40 cannot be challenged, but it then refers to a schedule under which they can. We feel that the drafting could be much clearer so that it takes account of the devolved Administrations and does not reflect an apparent conflict between the schedule and the clauses.
My Lords, I agree with some of the comments that have been made about the importance of dialogue with the devolved Administrations. The success of a project of this kind depends heavily on a close working relationship with the devolved Assemblies and those responsible within them for supporting activities and investment in and around any proposed spaceport, as well as communicating with local authorities. I think it is inconceivable that the spaceport project should move forward without very close co-operation, for example with the Scottish Government; in fact, that should be at the heart and centre of the consultation and planning for development of potential spaceports in Scotland. On that point, I very much welcome that an amendment has been tabled to that effect, and I hope the Government will find some way of giving comfort to the Committee that this important issue, wherever it is in the United Kingdom, will be recognised and acted upon.
I am glad to report on the first point of the noble Baroness, Lady Randerson, who would expect me to reflect for just a moment on the importance of the land issue relevant to potential spaceports. For example, I am very glad to report to the Committee and place on the record that Prestwick Airport already owns sufficient land, so none of the ground requirements for spaceflight activities would require additional land. The restrictions will be merely in relation to the air volume zone. Depending on the strictness of regulations, the runway, as I have reported to the Committee, is a mere 13 metres short of 3 kilometres—so very long. There may be the need to carry out a consultation in order to process a planning application, but Prestwick Airport would not be impinging on anyone’s land or assets. That should give great comfort to the department to recognise that an early recognition of first-mover status for Prestwick Airport in this context should be granted.
My Lords, before addressing the noble Baroness’s amendment, if the Committee will allow me, I will go into a little more detail about the operation of orders that can be made under Clauses 38 and 40.
Clause 42 sets out that orders made under these clauses will become operative after six weeks, and how they may be challenged. It provides that the making of such orders may be challenged through applications to quash orders under Schedule 7. Persons who receive notice of a proposed order are also able to object to an order which has been proposed under the provision for objections set out in Schedule 6. The noble Lord, Lord Deben, is not in his place any more, but I point out that these order-making powers are equivalent to powers in the Civil Aviation Act 1982. A six-week time limit also applies to challenges to those.
Turning to Amendment 39, the noble Baroness, Lady Randerson, asked how such orders are made when they relate to land in Scotland, Wales or Northern Ireland. In this context, I feel a bit sorry for England, Wales and Northern Ireland, which do not seem to be receiving the same degree of attention as certain sites in Scotland, but I want to remain strictly neutral—my job is to try to get the Bill through, and I am sure there will be fair competition between the different sites regarding where spaceports should operate.
I want to assure the Committee that throughout the development of the Bill, we have consulted extensively with colleagues in the devolved Administrations. The Bill has the opportunity to benefit the whole of the UK. Scotland and Wales are actively supporting the development of spaceports in their regions, as we heard in the case of Scotland, while Northern Ireland is benefiting from direct industry investment in research and development. We have worked with them to ensure that they are content with all provisions in the Bill, and we have agreed an approach to land powers which our partners in the devolved Administrations are fully content with.
Schedule 6 requires that notice of a proposal to make an order under Clause 38 or Clause 40 must be published in local newspapers and also served on the local authority in question. This gives an opportunity for the devolved Administrations to raise any concerns about a specific order. After an order is made, notice must be published and served. Anyone aggrieved may then apply to quash the order, as set out in Schedule 7.
I will directly address the issue of challenges, raised by the noble Baroness, Lady Randerson. Once the orders are made they can be legally challenged, but only as provided for by Schedule 7: in the first six weeks after the notice that they have been made has been published, and before they become operative. They cannot be challenged by judicial review. This is appropriate because there is a process for objections before an order is made, and once an order is made there is a further opportunity to quash the order.
The Secretary of State is also required to order a public local inquiry to give the person objecting the opportunity to be heard before proceeding to make the order. These order-making powers are equivalent to powers in the Civil Aviation Act, as I have said. A six-week time limit also applies to challenges to those. Horizontal spaceports could be developed at existing aerodromes and would therefore fall under the Civil Aviation Act 1982.
If the time limit for challenges to orders under the Bill differed from the one in the 1982 Act, there would be inconsistency between how orders related to horizontal spaceports and to vertical spaceports, and how they could be challenged. It is also in the interests of all parties to have legal certainty within a short time so that spaceflight activities may proceed without undue delay and so that affected persons may make any arrangements they need to, such as finding alternative land for an activity.
I think the noble Baroness, Lady Randerson, raised the question of whether legislative consent Motions will be necessary. Commercial spaceflight is a reserved matter for the UK Government. There are some provisions in the Bill that relate to devolved matters, such as land provisions. As I said, we have consulted the devolved Administrations throughout the development of this Bill. We believe that no legislative consent Motions are required.
With those assurances, I hope the noble Baroness is satisfied with my response and therefore feels able to withdraw Amendment 39.
The Minister referred to the 1982 Act and similar powers there. I will of course go away and investigate that, but we cannot get by just by relying on the Sewel convention on something as big and significant as this. I am delighted to hear that the Government have consulted with the devolved Governments, but I still fail to understand why the Bill does not refer specifically to the powers of the devolved Governments in a similar way to the Bus Services Act. It might be a totally different set of powers, but the principle is exactly the same.
I would be very pleased if the Minister gave us more detail on how the Government have reached agreement with the devolved Governments on how powers are to be exercised. That might help provide a little clarity. This is a very complex, technical issue. I will read Hansard carefully and may come back to this general issue on Report if I need further clarity. I am happy to withdraw the amendment.
Amendment 39 withdrawn.
Clause 42 agreed.
Schedule 7 agreed.
Clause 43 agreed.
Schedule 8 agreed.
Clauses 44 and 45 agreed.
Schedule 9 agreed.
Clauses 46 to 49 agreed.