Space Industry Bill [HL] — House of Lords, 2017-10-16
Topic: Technology
Colin Moynihan (Conservative, Centre-right): My Lords, in moving Amendment 5 I will also address Amendments 6, 9, 10, 25 to 28, 30 and 31. First, I declare an interest. I am a member of the Delegated Powers and Regulatory Reform Committee, which I hope has contributed constructively to the drafting of the Bill and to briefing the House on a number of issues relating to it. The comments I wish to make are strictly personal and the position taken by that committee is before the House in any event The House may recall that the House of Commons Science and Technology Committee examined the draft Spaceflight Bill towards the end of the last Parliament and invited the views of the Delegated Powers and Regulatory Reform Committee. Given the importance and intrusiveness of many of the Bill’s provisions, the Delegated Powers and Regulatory Reform Committee recommended that some delegated powers be removed altogether and that others should be subject to the affirmative rather than the negative procedure. I personally place on record that I believe that the Government have taken on board many of that committee’s recommendations. The number of regulations subject to the affirmative procedure has increased from four to 13, and two objectionable Henry VIII powers have been removed altogether—I say objectionable because they included one that allowed the regulator to dispense spaceport operators from any statutory requirement in any Act of Parliament, without any parliamentary procedure whatever. The Government have perhaps implicitly acknowledged the argument that a regulator’s job is to regulate compliance with the law and not to dispense the need for compliance with it Several provisions in the Bill allow the Secretary of State and the regulator to issue guidance, and I will concentrate for a moment on this word "guidance". No parliamentary procedure attaches to the issuing of such guidance. The Government justify this on the ground that the guidance is intended to be user friendly, be detailed and aid policy implementation by supplementing regulations, rather than intended to substitute any legislative provision. My view is that where someone must have regard to guidance, or indeed must follow it, the guidance has legal significance—meaning in turn that some parliamentary procedure is appropriate, typically negative-procedure regulations. The fact that the Government say the guidance is designed to supplement regulations—in other words, add to the law—also suggests that some parliamentary procedure should attach In Clause 67 there is an increase in 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 contain what the Government have called a compromise. In other words, the first set of regulations made under the powers in question have to be affirmative but subsequent regulations are only negative. This is unquestionably an advance on the position taken in the draft Spaceflight Bill, but it invites several comments. The technique could be open to abuse. The first set of regulations, the affirmative ones requiring debates in both Houses, might only be skeletal. The subsequent regulations might provide all the real substance but they would merely be subject to the negative procedure. I am certainly not suggesting that the Government intend to adopt such a ruse, but I hope the House will judge delegated powers not merely on how the present Government propose to use them but on how any hypothetical Government might be able to use them in future.