JURIST Guest Columnist Julia Selman Ayetey of McGill University discusses the UK Space Industry Bill…

The global space market was valued at $329 billion in 2016 and private sub-orbital flights and launches of small satellites alone are anticipated to be worth £25 billion pounds over the next 20 years. It is therefore unsurprising that the UK seeks to become a major player in the private commercial space industry. To facilitate its ambition to launch the very first spaceflight from UK territory by 2020, the government has proposed the Space Industry Bill which is currently before parliament. If passed, it will significantly reduce, if not eliminate, the UK’s reliance on foreign launch services, facilitate innovative research, create hundreds of jobs and contribute to the growth of the country’s NewSpace sector.

Features of the Space Industry Bill
The Space Industry Bill, an updated version of the earlier Draft Spaceflight Bill, provides for the implementation of a regulatory framework and licensing scheme to enable private commercial space activities, such as spaceflights and small satellite launches, to occur from UK spaceports. It covers traditional vertical launches and is likely to accomodate horizontal launches. Additionally, it enables the imposition of civil sanctions for non-compliance with regulations, authorizes the creation of space-related criminal offences and addresses issues of liability. It also makes provision for the transfer of licenses which is in sharp contrast to other space legislation, such as Luxembourg’s new space mining law which does not permit licenses to be transferred. This is likely to be welcomed by space launch operators and investors.

Criticisms
Some provisions of the Bill could be viewed as counterproductive to efforts intended to establish the UK as an attractive business environment for commercial space activities. For example, the Bill does not limit space operators’ liability for damage to property or injury to persons but only grants discretion to the regulator to do so. Whilst this might be considered useful in discouraging risky business practices, it is also likely to put off investors.

Another issue with the Bill is that the negative impact of commercial space activities is, arguably, not sufficiently considered. Although the Bill authorizes the imposition of safety regulations and gives examples in one of the schedules to the Bill of what those safety regulations may contain, the Bill itself is devoid of sufficient specifics. Risks to public health and safety arising from increased commercial space use are not yet fully known but include potential effects on climate change and pollution both on earth and in outer space. Some assert that such risks may be existential. Yet, the Space Industry Bill has been proposed without wide public consultation or public education. In 2014 the government did conduct a consultation exercise on its National Strategy for Space Environments and Human Spaceflight, however, the majority of respondents were company representatives or industry experts, namely those who have a direct interest in seeing an expansion of the space sector and tailoring the legislation to that end. The response from ordinary members of the public was negligible. The government did solicit feedback on the Draft Spaceflight Bill, but again this was primarily targeted at those in space-related professions. Further, although government funding has been allocated to support space education initiatives, it doesn’t appear that any of these funds have been earmarked for educating the public on the effect of the Bill’s provisions.

Importantly, some provisions of the Bill arguably erode fundamental legal principles. The very wide prerogative conferred on the regulations to “generally” give effect to the eventual Act undermines the ability to seek judicial review on the basis that permitted powers have been exceeded. Further, it could be contended that the principle of separation of powers is infringed by the extensive delegated powers contained within the Bill. These include Henry VIII clauses that would authorize the amendment or repeal of the primary legislation by secondary legislation even in absence of parliamentary scrutiny. Moreover, the lack of judicial supervision on the emergency power of the Secretary of State to grant an unspecified individual the authority “to do anything necessary” for the protection of national security, health and safety or compliance with international obligations is worrying. All three of these issues have been a matter of concern for the House of Lords Constitution Committee, yet they remain in the Bill.

Finally, there has been criticism that the Bill is skeletal in nature. The government has responded by stating that details will be covered in the eventual secondary legislation mandated by the Bill. However, without reviewing the intended regulations, the attempt to “future-proof” the law through substantial delegated and discretionary powers makes it difficult for parliament (and the public and investors) to know with relative certainty whether, and the degree to which, UK space governance will operate holistically. The government has published a policy document outlining its intentions with regard to the delegated powers but this is an insufficient substitute for actual draft regulations.

The Right Move?
The Space Industry Bill seeks to create the rare situation where law is ahead of technological advances and has been drafted to significantly accommodate the emerging private commercial space market. It is therefore unsurprising that the Bill has garnered wide support within the industry. If enacted, it is likely to achieve its target of boosting the employment rate and cementing the UK’s position as a leader in the NewSpace sector. However, it is important that these objectives do not blind legislators to the need to adhere to the normal legal standards of proportionality and access to justice as well to ensure adequate legislative scrutiny of the draft regulations, given their novel nature.

Is the Bill headed in the right direction? For the private sector, the answer is a resounding yes. For those concerned about fundamental democratic legal principles and the sustainability of humanity, earth and outer space? The answer is far less clear.

Julia Selman Ayetey is called to the Bar of England & Wales. She is a Legal Academic and currently a Doctoral Candidate at the Institute of Air & Space Law, McGill University.

Suggested citation: Julia S. Ayetey, Black Holes in the Proposed UK Space Legislation, JURIST – Academic Commentary, Dec. 11, 2017, http://jurist.org/forum/2017/11/Selman-Ayetey-uk-space-legislation.php