Space Law & Policy: The U.K. Approach to the Regulation of Space Activities
Space Law & Policy: The U.K. Approach to the Regulation of Space Activities
- Christopher J. NewmanChristopher J. NewmanNorthumbria University
Space activity within the United Kingdom (U.K.) has undergone a significant period of change with successive governments viewing space as a significant source of economic growth. This has seen increasing attention being paid to both space policy and regulation.
As a signatory to the Outer Space Treaty 1967, the U.K. is internationally responsible for the space activity of both its governmental and commercial entities. These obligations were initially discharged through the Outer Space Act 1986 and the licensing framework that emerged from that.
The decision of the government to develop the capability to launch small satellites from within the U.K., coupled with the promise of high-altitude activities and horizontal launch, meant that action was needed to update the law and regulation of space activity within the U.K. The need for investment to fuel the ambition of the U.K. is set out in the National Space Strategy.
- Space Law
The approach of the U.K. to space activity has changed dramatically in the first 2 decades of the 21st century. The early years of human space activity saw the U.K. being one of the founding members of the United Nations Committee on the Peaceful Uses of Outer Space (Hobe, 2009, p. 5). In 1961, the U.K. became the third country (after the USA and USSR) to operate a satellite in space (Millard, 2005, p. 9), and in October 1971, became the sixth nation to independently launch a satellite into Earth orbit using a launch vehicle it had developed (Newman, 2018, p. 89). Yet by the turn of the 21st century, there was little governmental support for the U.K. space industry, and space was barely mentioned in policy circles. The U.K. had a thriving small satellite manufacturing base (Millard, 2005, p. 6) and an established presence in the emergent maritime satellite industry, but there seemed little appetite among policymakers to promote space manufacturing or operations within the U.K. (INMARSAT, 2021).
Over the course of the first 20 years of the 21st century, this has changed dramatically. The U.K. has significantly increased its budgetary contribution to the European Space Agency (ESA) and, as of 2020, is the fourth biggest national contributor to the ESA (Hollinger & Parker, 2019). From having virtually no interest in human spaceflight and providing little by way of funding to the International Space Station (ISS), by 2016 the U.K. had its first ESA-trained astronaut.1 In respect of the U.K. defense use of space, there has also been the establishment of the new U.K. Space Command, under the aegis of the Royal Air Force (Royal Air Force, 2021). In 2019, the U.K. National Space Council was established. This political body, comprising key members of the U.K. government, will provide strategic leadership and coordinate all aspects of policy, strategy, and investment on space-related matters (BEIS, 2021a). In September 2021, the government announced an overarching space strategy to coordinate all space activity within the U.K.2
In relation to its international commitments, the U.K. has ratified four of the United Nations (UN) space treaties: the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (The Outer Space Treaty), the Agreement on the Rescue of Astronauts and the Return of Objects Launched into Outer Space (Rescue Agreement), the Convention on International Liability for Damage Caused by Space Objects (Liability Convention), and the Convention on Registration of Objects Launched into Outer Space (Registration Convention). The U.K. has not signed or ratified the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Agreement), nor has the U.K. government shown any interest in acceding to it. Despite this, the U.K. is one of the founder states who are signatories to the U.S.-led Artemis Accords, and there is little doubt that this reflects a broader ambition to be involved in a wide range of space activity, such as lunar exploration (UKSA, 2020).
These international commitments beget the need for some form of legislation to discharge the U.K.’s international responsibilities under the UN treaties. The role of national space laws in both controlling and also encouraging the development of private, nonstate commercial activity is well recognized (Marboe, 2017, p. 127). The development of a supportive regulatory system through domestic space law is therefore seen as integral to the development of U.K. space ambitions. There are numerous areas of compliance that the U.K. regulatory framework has to cover, be it environmental and safety aspects, national security implications, or commitments made due to international treaty obligations (Smith & Leishman, 2019, p. 2). This article will look at the way in which the law and regulatory dimensions have developed to support the lofty ambitions of the U.K. space policy.
National Space Policy of the U.K.
Starting in 2010, the promulgation of the Innovation and Growth Strategy represented a significant policy shift by the U.K. government. It was explicit recognition that the U.K. space industry had the potential to deliver meaningful and sustained economic growth. This was accompanied in April 2010 by the creation of the first U.K. Space Agency (UKSA). The agency’s mandate, upon its creation, was to “provide strategic leadership to the U.K.’s civil space activity, with a central focus on the growth of the industrial sector, working in partnership with other actors where appropriate” (Danby, 2017, p. 8). The creation of the UKSA was matched by increased contributions to the ESA and a number of high-profile initiatives, including the first U.K. national to train within the ESA Human Spaceflight Program. The first explicit statement of U.K. National Space Policy (NSP) was published in 2015 (BEIS, 2015). The shift in the importance of space was reflected in the prominence accorded to it in the far-reaching Integrated Review in 2021 (Cabinet Office, 2021). The promulgation of the National Space Strategy in September 2021 will further entrench space activity within government thinking.
The 2015 NSP gave the first expression of the U.K.’s economic intentions with regards to space. The policy had four key pillars, elements of which dovetail in the 2021 National Space Strategy. First, it recognized the strategic importance of space due to the value that space programs deliver to public services, national security, science and innovation, and the economy more generally. Secondly, the policy committed the U.K. to preserving and promoting the safety of the unique space operating environment, free from harmful interference. The third element of the policy detailed U.K. commitment to support the growth of a robust and competitive commercial space sector, underpinned by excellent academic research. The final pillar of the policy was a commitment to cooperating internationally to create the legal frameworks for the responsible use of space, and collaborate with other nations to deliver maximum benefit from U.K. investment in space (BEIS, 2015, p. 10).
The space policy of the U.K. has been predicated on an overall growth in the global space industry. The U.K. is looking to develop existing strengths in various sectors of manufacturing, operations, and the application of data from space. Such things, however, do not occur in a vacuum, and the political turmoil caused by the decision of the U.K. to leave the EU, coupled with the, as yet unknown broader impact of the COVID-19 pandemic, could have significant, if unpredictable, effects upon the policy goals. The decision to leave the EU, in particular, could have significant ramifications for U.K. membership of the ESA, especially where participation in potentially lucrative EU programs is restricted to EU member states (Smith & Leishman, 2019, p. 2).
It is not within the purview of this article to assess the impact of Brexit upon U.K. space policy or the U.K. space industry more broadly (for discussion, see, for example, Smith & Leishman, 2019, pp. 22–24), but there is no doubt that there will be an impact upon the space sector. Despite the political turmoil that has resulted from the 2016 referendum, the decision to leave the EU, and the subsequent two general elections that followed, the NSP still remains the strongest articulation of the importance of the space industry to the U.K. The NSP also recognizes the need for national regulators to embrace the environmental and sustainability implications of space activity. In addition, there is a clear recognition that international cooperation is crucial to not only developing lucrative commercial contracts, but also to sharing best practice and developing and sharing the necessary space infrastructure. In this sense, the policy is clearly a recognition of the position of the U.K. as an advanced space-capable nation, but with core areas that need to be developed.
As U.K. space ambitions expanded in the latter half of the 2010s, the promulgation of the LaunchUK strategy in 2017 indicated something of a policy shift. This built on industry claims regarding a bottleneck surrounding small satellite launches and focused efforts to establish a sovereign launch capacity, with launches from the U.K. (Newman, 2018). The 2017 prospectus from the UKSA heralded a commitment to creating safe, competitive, and sustainable markets for the launch of small satellites and operation of suborbital flights. In 2018, the government provided an update entitled “Prosperity from Space,” which looked to build on the 2015 NSP and expanded upon the LaunchUK program. It is clear from these two documents that U.K. space policy is intended to capture a significant portion of the small satellite launch market by the middle decades of the 2020s. Additionally, Prosperity from Space laid out a strategy designed to enhance growth in the space sector by focusing on four priorities: Earth information systems, connectivity services, in-space robotics, and low-cost access to space (UKSA, 2017).
The desire for sovereign launch capability may well be a laudable one, especially for a nation looking to enhance its position within the global space community. Indeed, it has been stated that access to launching infrastructure is a major factor contributing to a state’s ability to develop its national space market (Smith & Leishman, 2019, p. 5). Nonetheless, the global launch market is a complicated and well-developed one. Despite the U.K. government having the broad policy aims of developing a thriving small satellite launch market, U.K. operators will need to consider the details of how to make this happen, and crucially, how to compete with more established commercial providers such as SpaceX, ULA, Ariane, and the ISRO (Stickings, 2021). In trying to empower U.K.-based firms, one of the core elements of the U.K. space policy has been to create legal frameworks for the responsible use of space.3
These developments indicate the ambition of the U.K. to become a major force in the global space industry. This ambition is manifest in the stated policy goals of developing sovereign launch capability and capturing a 10% share of the global space market by 2030.4 This culminated, in September 2021, with the unveiling of a U.K. National Space Strategy (BEIS, 2021a), designed to “bring together” national activity in science and technology, defense, regulation of space, and diplomacy (BEIS, 2021a, p. 9). The 2021 strategy identified five goals for the U.K. in space. The strategy and, in particular these goals, use language that suggest more political input to the U.K. approach to space and, crucially, represent a more integrated approach across the scientific, commercial, and defense interests in the U.K.
The first goal—to grow and level up the U.K. space economy—seeks to make Britain attractive as a place for space-sector businesses to thrive. The second aims to promote the values of “Global Britain.” The third goal is to use space to lead pioneering scientific discovery and inspire the nation, specifically to encourage young people to engage with STEM subjects. Goal four is to protect and defend the U.K. national interests in and through space. This is the first explicit recognition that integration of civilian and military space interests within the U.K. is inevitable. The fifth and final goal looks to use space to “deliver for U.K. citizens and the world,” by addressing challenges such as climate change and biodiversity loss (BEIS, 2021a, pp. 18–19).
In line with the second and fourth goal of the National Space Strategy, the U.K. has sought to extend its influence within the broader realm of international diplomacy and astropolitics. In November 2020, the UN General Assembly (UNGA) First Committee approved the U.K.-led resolution “Reducing Threats through Norms, Rules and Principles of Responsible Behaviours.” The U.K. has never before initiated discussions on norms of behavior in space. The UNGA resolution (A/RES/75/36) aims to “broker an international consensus on responsible behaviour in space” (UNGA, 2020). This includes helping to improve transparency and confidence-building measures in respect of space activity. There have been previous attempts at this, most notably the European Code of Conduct on Outer Space Activities (see Beard, 2016, for the pitfalls). These attempts were subject to considerable resistance, being viewed as either an attempt to impose “backdoor” arms control treaties, unnecessarily limiting space activity, or as aging European powers seeking to unilaterally impose behavior in a top-down fashion without consultation.
Led by the U.K. Foreign, Commonwealth and Development Office, the U.K. resolution passed the UNGA First Committee vote, with 150 voting Yes, 12 voting No, and 8 abstentions in a clear endorsement of the initiative. It has perhaps avoided the trap of being seen as top-down imposition by initiating a wide-ranging and inclusive discussion on what constitutes good behavior in space from the international community. The next steps will be for a report for the UN Secretary General to include the submissions of the various nations, possibly with a view to create an open-ended working group or group of governmental experts within the next year. There are considerable obstacles to meaningful progress, but there is some cause for optimism as the U.K. has framed these discussions as part of an ongoing process. The relatively modest ambitions that exist at the outset may well allow some form of dialogue between states to be maintained. This is an area where U.K. policy and existing diplomatic expertise may well prove beneficial. The “National Space Legislation of the U.K.” section examines the underpinning national space legislation of the U.K. and how the activities of British companies and nationals are seen to comply with the responsibilities of the U.K. under the Outer Space Treaty.
National Space Legislation of the U.K.
In the early part of the 1980s, after a period of relative inertia in its space programs, companies such as BAE Space Systems and Marconi, working in the U.K., had started to develop a critical mass of commercial activity focused on defense (Millard, 2005, p. 48). The reluctance of the government to incur the risk of liability from space activity was coupled with the realization that the burgeoning U.K. space industry would need oversight to ensure compliance with the obligations under the Outer Space Treaty (Lyall & Larsen, 2018, p. 432). The current basis for the regulation of space activities carried out by nationals or organizations established in the U.K. or its overseas territories is the Outer Space Act 1986. This applies to all activities that occur outside of the U.K. The Space Industry Act 2018 was brought in by the U.K. government to provide a legal framework for space activity that is carried out within the U.K., although no licenses have yet been issued under this Act.
Having signed and ratified the Outer Space Treaty in 1967, the U.K. is a “state party to the treaty” and, therefore, as per Article I, is granted the freedom to engage in exploration, use, and scientific investigation of outer space, without discrimination of any kind, on a basis of equality and in accordance with international law. These freedoms are subject to a number of limitations, detailed within the rest of the treaty (Hobe, 2009, p. 27). Specifically, as a state party, the U.K. is bound by provisions relating to nonappropriation of outer space (Article II of the Outer Space Treaty): it must carry out its activities in outer space in accordance with international law (Article III of the Outer Space Treaty), it must adhere to the prohibition on placing nuclear weapons or weapons of mass destruction in outer space (Article IV of the Outer Space Treaty), and it must provide assistance to astronauts and return them promptly to their state of origin (Article V of the Outer Space Treaty). The “Regulating the Spectrum” section explains how the U.K. complies with the duties imposed upon states by Article VI, Article VII, and Article VIII of the treaty.
Regulating the Spectrum
In addition to the treaty requirements of the UN, the U.K. is also an active member of the International Telecommunications Union (ITU). As per Section 22(3) of the Communications Act 2003, the Office of Communication (OFCOM) is the regulatory body who deals with all aspects of spectrum management and orbital management. Irrespective of the licensing regime that is to be used, whether under the 1986 Act or in future under the 2018 Act, part of the licensing check will involve checks with OFCOM to ensure that correct ITU filings have been made, and to ensure that the frequencies used will not cause interference. OFCOM provides details for potential license applicants in respect of the requirements of the ITU Radio Regulations regarding frequency allocations (Article 5) and orbital positions (Article 44). As Wheeler and Jeong (2020) have pointed out, those applying for a license are required to demonstrate that they have access to the spectrum and that the requirements of the ITU are satisfied concerning orbital positions, as applicable, and frequency assignments.
The Outer Space Act 1986
In order to ensure compliance with the UN treaty provisions, Article VI of the Outer Space Treaty makes the U.K., as a state party to the treaty, internationally responsible for national activities in outer space. This international responsibility applies both to governmental and nongovernmental entities. The treaty does not provide any further elucidation of what is meant by “activities in outer space” (Gerhard, 2009, p. 107). Furthermore, it is clear that “the authors of the Treaty intended to assign all non-Governmental space activities to a State” (Lachs, 1972, p. 122). In order to comply with this international responsibility, the U.K. passed the Outer Space Act 1986. “At the core” of the Act is a licensing regime (Marboe, 2017, p. 155). Section 1 of the 1986 Act defines the activities for which a license is required as being (a) launching or procuring the launch of a space object, (b) operating a space object, and (c) carrying out any other activity in outer space. Within the terms of Section 1 of the 1986 Act, the U.K. Parliament defines the activities for which it believes it is internationally responsible in space, and it follows international law in that it does not distinguish between different types of space object, treating all satellites alike, regardless of their size, mass, or purpose (Mosteshar & Marboe, 2016, p. 151).
As stated by Lyall and Larsen (2018, p. 433), the objective of the Act is to “include within its scope any who might trigger U.K. responsibilities under the space law treaties.” Section 2 of the 1986 Act extends the scope of the licensing regime to U.K. nationals, Scottish firms, and bodies incorporated under the law of any part of the U.K. For the purpose of the Act, a “United Kingdom national” means an individual who is (a) a British citizen, a British Dependent Territories citizen, a British National (Overseas), or a British Overseas citizen; or (b) a person who under the British Nationality Act 1981 is a British subject; or (c) a British protected person within the meaning of that Act. According to Section 3(2)(b) and 3(3), where the U.K. has an arrangement with another state by which the U.K. treaty obligations are fulfilled, an activity under Section 1 may be exempt from the need for a license. This way the U.K. seeks to avoid overlapping or conflicting jurisdictions (Lyall & Larsen, 2018, p. 433).
As with other licensed activities in the jurisdiction of the U.K., Section 3 of the 1986 Act seeks to prohibit unlicensed conduct of the activities described under Section 1. Accordingly, under Section 12(1) it is an offense to carry on an activity in contravention of Section 3. Section 12 also provides that it is an offense to provide false statements in support of a license application, fail to comply with the conditions imposed by a license, or any subsequent direction made under the terms of the license. The Act creates a nexus whereby Section 1 identifies the activities in outer space that will require a license. Section 2 then identifies the persons/companies who need to apply for the license to undertake the activities detailed in Section 1. Section 3 then prohibits any unlicensed activities, including activity that occurs outside of the terms of an existing license. It is through this legal mechanism that the U.K. Parliament controls access to space by the nongovernmental entities for whom they are internationally responsible (Mosteshar, 2010).
Under Section 4 of the 1986 Act, the granting of a license is a discretionary decision, with the decision-making power assigned to the “Secretary of State.” In practice, these powers are delegated to the UKSA.5 With the coming into force of the Space Industry Act 2018, Regulation 3 of the Space Industry Regulations (SIR) designates the Civil Aviation Authority (CAA) as the sole regulator for commercial spaceflight activities regulated within the U.K. This is partly to remove the longstanding difficulty of having the UKSA as both promoter of U.K. space activity, while also having it regulate safety and grant licenses for that same activity. This is not the first time that the regulatory authority has been changed for the purposes of licensing under the Outer Space Act. Prior to the creation of the UKSA in 2010, the administration of the licensing process was carried out by the British National Space Centre. The administrative responsibility was transferred to the UKSA upon its creation.
The regulatory burden that the 1986 Act imposes upon smaller companies in the U.K. space sector is considerable and has been extensively criticized as disproportionately disadvantaging U.K. manufacturing (Newman & Listner, 2015). In the consultation document on the future regulation of small satellites in the U.K., promulgated in June 2015, the UKSA recognized that the regulatory regime of the Outer Space Act 1986 was not well suited to deal with CubeSats. As part of ongoing efforts to streamline the regulatory framework as a whole, there has been an attempt to make the licensing system under the 1986 Act less burdensome. There now exists a phase of preapplication engagement, which utilizes a “traffic light” system for indicating the likelihood of a license being granted at an early stage of the project.
Licensing under the Outer Space Act 1986
Section 4 of the 1986 Act provides the general conditions under which a license will be granted. The legislation is quite clear that the license shall not be granted unless the regulator is satisfied that the activities for which the license is being sought will not jeopardize public health or safety of persons or property. Furthermore, the international obligations of the U.K. and the responsibilities of state parties to the Outer Space Treaty are protected by Section 4(2)(b) of the 1986 Act, which prohibits the granting of a license if the activity is not consistent with those international obligations. This means that any activity which is not compliant with the limitations imposed on state activity by the Outer Space Treaty will not be licensed under the 1986 Act. Finally, there is the requirement (Section 4(2)(c) of the 1986 Act) that a license will not be granted if the proposed activity will impair the national security of the U.K. As with all national security exceptions, the courts in the U.K. have given the government a wide latitude in determining what constitutes a threat to national security (Woods et al., 2021). Should a license be refused on this ground, it is unlikely that any appeal against the decision would be successful.
The terms and contents of a license are described in Section 5 of the 1986 Act. The license will provide details regarding the activity(s) that are being authorized, the length of time for which the license is being issued, and the details of any special conditions that are being imposed upon the activity. Under Section 5(2), the granting of the license may be conditional upon inspection of the facilities and testing of equipment, and the provision of launch information and basic orbital parameters. The license is granted subject to the obtaining of approval from the regulator of any intended deviation from orbital parameters and the requirement of immediate notice of any unintended deviation.
There is explicit mention in Section 5(2)(e) (i–iv) of the need for licensees to prevent the contamination of outer space or adverse changes in the environment of the earth; to avoid interference with the activities of others in the peaceful exploration and use of outer space; to avoid any breach of the U.K.’s international obligations; and to preserve the national security of the U.K. Any breach of these conditions will see the licensee acting outside the terms of the license as per Section 3, and they will thereby be liable for prosecution for an offense under Section 12. Rather than providing detailed and prescriptive guidance for those seeking a license, the approach adopted by the UKSA is an outcomes-based method of regulation by which the U.K. discharges its obligations under the Outer Space Treaty (Wheeler & Jeong, 2020).
There is no explicit requirement for an activity to comply with the UN Space Debris Mitigation Guidelines in the 1986 Act. Notwithstanding this, under Section 5(2)(g), licensees are obliged to dispose of the licensed space object appropriately at the end of the licensed activity, and inform the UKSA of the disposal and termination of the activity. In Annex A of the notes for guidance for applying for a license, the UKSA sets out the list of the standards that comprise the criteria by which license applications are assessed. This list includes the Inter-Agency Debris Coordination Committee Debris Mitigation Guidelines together with various safety standards for the operation and disposal of spacecraft and systems set by the International Organization for Standardization (UKSA, 2018a, p. 11).
Liability and Insurance under the Outer Space Act 1986
Article VII of the Outer Space Treaty provides a crucial element of the Outer Space Treaty in that it holds state parties to the treaty liable for damage caused by their space objects, and makes states only internationally liable “for the act of launching a space object” (Kerrest & Smith, 2009, p. 128). This liability is further expanded upon in the Liability Convention, and the potential cost of satisfying any third-party claims for damage underpins much of the approach to licensing under the 1986 Act. Article I of the Liability Convention provides that a state can become a launching state in one of four ways: launching an object, procuring the launch of an object, or allowing its facilities or allowing its territory to be used for a launch. According to Marboe (2017, p. 155), the U.K. does not consider itself the launching state in the case of space objects launched by private entities, construing the term “procuring a launch” perhaps more narrowly than the intended meaning (Smith et al., 2013, p. 114). In trying to grow the space economy, with the stated desire to attain a sovereign launch capability, the U.K. regulators may wish to reconsider the narrowness of this interpretation of “procure.”
As can be seen from the guidance documentation issued by the UKSA, the licensing process under the 1986 Act in practice involves a rigorous assessment process during which there is an in-depth financial, safety, and environmental assessment of the application. This is both expensive and time consuming. The main criticism leveled at the U.K. regulatory process, however, concerns the way in which the liability imposed by the U.K. commitments under Article VII of the Outer Space Treaty could be lifted from the U.K. taxpayer (Newman & Listner, 2015). Section 5(2)(f) of the 1986 Act requires the licensee to insure themselves against liability incurred in respect of damage or loss suffered by third parties, in the U.K. or elsewhere, as a result of the activities authorized by the license.
This initially meant that all persons covered under Section 2 of the 1986 Act, whether licensed or not, were required to indemnify the U.K. government against any third-party liability (TPL) claims for damage or loss arising out of licensable activities on a “per-satellite” basis (Mosteshar & Marboe, 2016, p. 151). Accordingly, for a hypothetical constellation of 75 satellites, each of the 75 satellites would require a separate unlimited TPL policy. After much lobbying by industry groups, this was amended by Section 12 of the Deregulation Act 2015, which placed a cap on liability in most cases at €60 million. Nonetheless, this still meant an additional burden imposed on satellite operators seeking a license in the U.K. that was not always imposed by other nations. The concerns about the statutory requirement for TPL insurance coverage for the lifetime of the mission were reflected in an impact assessment of the review of the Outer Space Act conducted by the UKSA. This stated that “the treatment of contingent liabilities under the Act is inconsistent with practice in other space faring nations and in other U.K. sectors that have comparable contingent liabilities” (UKSA, 2011).
In October 2018, the UKSA modified the insurance requirement (UKSA, 2018b). This heralded a change from the “per-satellite requirement to a per-occurrence requirement” to allow operators of more than one satellite to cover the TPL requirements under a single “fleet” insurance policy. For missions defined as “low-risk,” such as “SmallSat” missions deployed from the ISS or otherwise launched to an operational altitude below that of the ISS, UKSA may waive the TPL insurance requirement. In their guidance, the UKSA state that a low-risk satellite at low, sparsely populated altitudes, with an orbital lifetime of less than a year and with few high-value assets nearby, would, in most cases, carry a negligible risk of third-party damage.
The current position, however, is that applicants for a license are still required to indemnify the U.K. government against any TPL claims brought as a result of damage or loss arising out of activities, and, crucially, this requirement applies for the lifetime of the space object, subject to the €60million cap. The TPL coverage is required for both the launch phase and in-orbit activity. The 2018 introduction of “per-occurrence” fleet policies and the waiving of TPL insurance on low-risk licenses are discretionary and subject to UKSA risk assessment. The U.K. position is still in something of a state of flux, and consultations regarding the SIR for the Space Industry Act 2018 include a detailed consideration of the insurance provisions. The response to the initial consultation released in March 2021 found that “respondents raised a range of queries in relation to liabilities and insurance. The government has noted these comments and will carry out a wider review of insurance and liabilities requirements in 2021” (BEIS, 2021b, p. 6).
Under Article VIII of the Outer Space Treaty, which was further expanded upon in the Convention on Registration of Objects Launched into Outer Space (Registration Convention), when an object is launched into space, it should be entered onto a number of registers to allow for the clear identification of at least one of the states involved in the launch of that object. As had been identified by Lyall and Larsen (2018, p. 79), “it has other purposes,” but entry on the register mandated by the Registration Convention is important for grounding responsibility, for “ownership,” for the exercise of control and, in the worst case, for liability. Accordingly, when a space object is launched, Article II of the Registration Convention requires the “launching state” to notify the UN. Under Article I(a), the “launching state” is held to mean either the state from whose territory the object was launched or the state which procured its launch (or whose nationals did). The Registration Convention, therefore, requires the U.K. to maintain its own Registry of Space Objects, and this requirement is provided for in Section 7 of the 1986 Act.
The UKSA maintains two registries regarding U.K. space activity. The first is a U.K. Registry of Space Objects (UKSA, 2014b). The second, or supplementary registry, is a register of space objects where licenses under the 1986 Act have been issued but where the U.K. is not the launching state, as defined in Article I of the Registration Convention (UKSA, 2014a). These two registries contain the appropriate information to satisfy the U.K. obligations under the Registration Convention. They also contain additional information, such as the name of the owner or operator and the date of disposal or decay of the space object. As Wheeler and Jeong (2020) point out, from a practical perspective, as part of the licensing process, the UKSA will provide the licensee with a registration questionnaire to complete, based on the information required by Article IV of the Registration Convention, which will then be submitted to the UN. Given the commercial focus of much of U.K. space activity, it was seen as likely that operators may look to transfer the license to another operator either within the U.K. or outside. Section 6 of the 1986 Act allows for a license to be transferred. The Act makes it clear that this is a discretionary decision made by the Secretary of State.6
The Space Industry Act 2018
The 1986 Act provides a licensing regime for the operation of a satellite in space, thereby satisfying the authorization and supervision aspect of the U.K. commitments under the Outer Space Treaty. However, the LaunchUK policy initiative had outlined a three-stage program for embedding sovereign launch capacity within the U.K. The 1986 Act does not have express provisions for the authorization of launch from the U.K. In order to become established as a successful, reliable, and sustainable commercial gateway to space with integrated supply chains, there was a need for an appropriate regulatory framework to cover these new activities. Additionally, to satisfy the ambitions of the U.K. government to achieve a sovereign launch capacity, it was realized that there would need to be additional legislative coverage of ground operations. The roots of this predate the LaunchUK initiative and can be traced back to the British commercial spaceport competition of 2014 (Parnell, 2012). This competition was abandoned in 2016, and instead the U.K. government stated that a regulatory framework would be put in place to allow any suitable location to be licensed as a spaceport.
In order to develop the legal framework for the licensing of spaceports and the conduct of space activities, including launch from U.K. soil, the U.K. government introduced the Draft Spaceflight Bill to the U.K. Parliament in 2017, and this subsequently gained Royal Assent as the Space Industry Act 2018. This was done unusually quickly to reassure potential investors. Such speed meant that much of the Act was skeletal in nature, leaving much of the crucial detail to be decided by means of secondary regulations. The SIR that were subsequently promulgated by the U.K. government for widespread public consultation in 2020, illustrated how the regulation of space ports and launches in the U.K. will actually be managed.
As with the 1986 Act, Section 1 of the 2018 Act defines the range of activities that are to be covered by the regulatory framework and for which the U.K. will have international responsibility. Section 1 therefore covers “space activities,” “suborbital activities,” and “associated activities” that are carried out in the U.K. Section 1(3) effectively creates the twin regulatory regimes, altering s1 of the 1986 Act and stating that the Outer Space Act does not apply to activities carried on in the U.K. (and accordingly does not apply to activities requiring authorization under Section 3(1) of the Space Industry Act 2018). As the 2018 Act is looking to cover both suborbital activity and outer space activity, there is most certainly a need to provide definitional certainty on the precise scope of this activity and when conduct falls within the licensing regime. Section 1(4) defines “space activity” as covering the launching (or procurement of the launch or return to Earth) of a space object, and operating a space object or any activity in outer space. The scope of the Act is rounded off by Section 1(6), which holds that space activities and suborbital activities that require licensing are to be known collectively as “spaceflight activities.”
Extant space law within the U.K. has evolved around (and is predicated upon) the use of vertical (rocket) launches to access space. The U.K. has sought to promote the development of horizontal launch and suborbital, high-altitude pseudo satellites. These horizontal launch platforms intersect civil aviation law (during their launch) and space law (while operating in space) (Smith & Leishman, 2019). The coverage of both suborbital and space activities within the Space Industry Act is intended to include horizontal launch craft that mimic aircraft that use airspace. It is not intended to replace the existing CAA regulatory framework for these types of craft, rather it will augment the regulation of airspace up to the air/space boundary. It has been noted, however, that the use of “suborbital” within the legislation may not be appropriate (Smith & Leishman, 2019, p. 14). It is suggested that the definition of activity as applying to a rocket or craft capable of operating above the stratosphere or a balloon capable of carrying crew or passengers (as per Section 1(5) of the 2018 Act) is more suited to “high-altitude” activities than suborbital (Cheney, 2018, quoted in Smith & Leishman, 2019, p. 13).
As with the 1986 Act, Section 3 of the Space Industry Act 2018 prohibits either the carrying out of spaceflight activities (3(1)(a)) or operating a spaceport in the U.K. (3(1)(b)) without a license, and Section 3(2) defines the following terms: an “operator license” means a license under this section that authorizes a person to carry out spaceflight activities; a “spaceport” means either (a) a site from which spacecraft or carrier aircraft are launched or (as the case may be) are to be launched, or (b) a site at which controlled and planned landings of spacecraft take place or (as the case may be) are to take place. Additionally, a “spaceport license” means a license under this section that authorizes a person to operate a spaceport. Section 3(6) and (7) perform a similar role to s12(1) of the 1986 Act and make it an offense to carry out unlicensed activities and/or to make false statements to obtain a license.
While the 2018 Act contains statutory authority for the regulation of spaceflight activities within the U.K., there was much detail that needed to be furnished. In July 2020, the UKSA announced the promulgation of the draft regulations to accompany the Space Industry Act 2018. The public consultation on the content of the regulations ran from July 29 to October 21, 2020, and was intended to obtain operational and stakeholder input into the secondary legislation underpinning the LaunchUK industry. There were three sets of separate regulations that were opened for consultation by the UKSA in 2020: SIR (the aforementioned Space Industry Regulations), Accident Investigation Regulations, and Appeals against decisions made under the two licensing regimes. The results of the consultation were disseminated on March 5, 2021, and the amended regulations were promulgated in May 2021 (SIR 2021, SI 2021/792). Further consultations on insurance and environmental issues are still being considered (BEIS, 2021b, p. 7).
The response to the consultation indicated support for the preapplication traffic light system being adopted for applications for a license made under either the Outer Space Act or the Space Industry Act. Such a scheme provides the applicant with a red, amber, or green nonbinding indication of the potential risks associated with the application and, therefore, an early indication of the success of the license application. Although, as stated in the response to the consultation:
It should be underlined that a positive indication under the traffic light system does not guarantee that an application will be successful, and also that applicants for all licenses under the SIA [Space Industry Act] are encouraged to engage with the regulator from an early stage, whether they wish to use the traffic light system or not.(BEIS, 2021b, p. 5)
The SIR provides clarity on the nature of the licensing regime found in Sections 8–15 of the 2018 Act. Part 3 creates three separate categories of license that will be made available under the 2018 Act: an operator license, a range control license, and a spaceport license (contained within Part 3 of the regulations). The creation and operation of a spaceport together with range control, the launch (both horizontal and vertical, orbital and suborbital), and the operation of satellite from within the U.K. (referred to as “spaceflight activity” in Section 1(6) of the 2018 Act) will be authorized and licensed under the Space Industry Act 2018. Details on spaceport licenses are found in Part 5 of the SIR (Regulations 34–40). This provides the granular detail of the licensing requirements for the operation of a spaceport within the U.K., and imposes distinct measures for both horizontal and vertical launching as well as mandating the licensee to undertake an environmental impact assessment prior to the granting of a license. The operator license is covered in Part 4 of the SIR (Regulations 25–33), and it is anticipated that this will be the most commonly sought license. Such a license will be granted to those looking to engage in launch, re-entry, and satellite operations under the 2018 Act. Finally, range control licenses are covered by Part 6 of the SIR (Regulations 41–54) and regulate range control services for activities licensed under operator licenses.
Spaceport safety is covered extensively in Part 10 of the SIR, with the requirement of emergency response planning under Regulation 165. In the response to the consultation, it was recognized as being a welcome and sensible addition. What is not present is the requirement of the involvement of specialist environmental and maritime conservation experts. Given the proximity of the northern launch sites to the sea and the inherently dangerous and experimental nature of launch, this may well require some attention and discussion as the SIR develops. Part 11 of the SIR provides details of a whole range of security requirements, physical and personnel, cyber, training, and vetting. Regulations 192–202 make special provisions relating to the protection of U.S. technology. It was acknowledged in the response to the consultation that these provisions are required to discharge the U.K.’s responsibility under the U.S.–U.K. Technology Safeguards Agreement (TSA), signed in October 2020, and are not subject to change.
The Contours of Liability under the Space Industry Act 2018
One of the key areas of growth that LaunchUK was looking to promote was the nascent space tourism market. The government sought to “future proof” the regulations by including details on the way in which liability for human spaceflight, specifically suborbital tourism, would be dealt with. The regulations concerning the use of informed consent under Part 12, found in Regulations 203–217 of the SIR, are clearly drawn from similar provisions in the United States. It details the information that should be provided to crew and participants and mandates that there must be evidence that consent has been given by the participants. Regulation 206(d) also states that the current risk assessment for the operator’s spaceflight activity needs to be in language that is clearly understood. Given that the space tourism industry within the U.K. is at present largely aspirational, the likelihood of this type of spaceflight activity occurring within either the short or medium term is remote.
The LaunchUK policy made clear that the safety of all aspects of launch operations is of primary importance when developing this new capability. As such, the decision to impose strict liability under s34(2) of the 2018 Act was not surprising. Part 13 of the SIR details the regulatory approach to the liability for loss or damage arising out of licensed activity. The intent was to provide people in the U.K. with the same rights and remedies, without having to prove fault, as those from another country would enjoy under Article II of the Liability Convention 1972. The decision therefore to impose strict liability in the statute, as opposed to “absolute” liability imposed by the 1972 Convention, may not have practical significance. Regulation 206 lists a number of people who do not enjoy the protection afforded by s34(2) of the 2018 Act. In the response to the consultation, the government stated that “this does not prevent them making a claim under common law, nor does it remove any liability from any party included in the list referred to draft regulation 206 [now Regulation 218]” (BEIS, 2021b, p. 20).
There are a number of issues arising from the response to the consultation that had not been raised explicitly in the SIR. The government is keen to enable the licensing of launch activities from a ship, subject to other conditions being met, and will provide further guidance on this. The Space Industry Act 2018 does not recognize a ship as a spaceport, so launch from a ship would not require a spaceport license but can be regulated by a launch operator license. The actual launch from a ship is within the scope of a “spaceflight activity” as defined in the 2018 Act, whereas a ship carrying a launch vehicle to sea to launch is not. In the case of a sea launch, the spaceflight activity is deemed to commence at the launch of the launch vehicle, rather than when the ship carrying the vehicle leaves the port. This is consistent with the possible exemptions under Regulation 15. At present this comprises aircraft which are transporting a space object, launch vehicle, or component part, but are not involved in the actual launch and have CAA approved air operator certification. A fixed platform at sea or a mobile installation at sea that can be moved from place to place which is used for launches is held to be a spaceport within the meaning of the 2018 Act, but they too are not treated by the 2018 Act in the same way as carrier aircraft (BEIS, 2021b, p. 11).
There are still questions regarding the potential competitiveness of any future launch industry within the U.K. as the insurance conundrum remains omnipresent in any discussion on U.K. regulation. The most contentious element of the U.K. licensing of space activity has been the requirement for TPL for all licensed activity under the 1986 Act. This has been retained for the purposes of launching from the U.K. at the current level under the 2018 Act. Even with the liability cap in place, the indemnification requirement places a significant burden on the providers of launch services from the U.K. As has already been identified, the indemnification of the U.K. government in respect of U.K. launch activity is going to be subject to a further consultation and it will take collaboration between the space industry, regulators, and insurance sector to provide a workable alternative.
The promulgation of the SIR to underpin the 2018 Act represents a significant step forward in the preparations for LaunchUK by the U.K. government. Crucially, these regulations, and the signing of the TSA between the U.K. and the United States, are instrumental in ensuring that International Traffic in Arms Regulations do not limit the ability of American firms to bring rocket technology into the U.K. There are a number of vertical launch sites being proposed in the far north of Scotland, which have both the geographical advantage of launch to Polar and Sun synchronous orbits and also minimize the safety risk to the public by launching over largely unpopulated areas (Smith & Leishman, 2019, p. 4). There are also well-developed plans for a horizontal launch site at Newquay in Cornwall, in the far south of the U.K., from which Virgin One have arrangements to deploy their 747-enabled launch system (see Amos, 2021).
As with every aspect of government policy, the specter of Brexit and the decision of the U.K. to leave the EU looms large across the U.K. space sector. The decision of the ESA to not award prime contracts to U.K. firms in the EU Copernicus Earth Observation Constellation was not unexpected and points to further tensions to come in the relation between the ESA and the U.K., as the EU continues to invest heavily in space technology, restricting prime contracts to EU member states (see Amos, 2020). The fact still remains, the U.K. has gone from being a member of the EU space sector to a competitor and this, coupled with the loss of unfettered access to the Single Market, could have an adverse effect upon the competitiveness of the U.K. space industry. Similarly, the global impact of COVID-19 on all aspects of economic policy means that predicting future developments and policy initiatives is something of a perilous activity.
Notwithstanding this uncertainty, the first 2 decades of the 21st century have been a period of intense activity and growth for the U.K. in respect to its space ambitions. The U.K. has built upon its success in manufacturing small satellites, space science, and developing satellite applications. The UN resolution on “Reducing Threats through Norms, Rules and Principles of Responsible Behaviours” shows that the U.K. sees a role for itself on the global stage as an actor in space diplomacy. The National Space Strategy is clearly intended to position the U.K. as a leading space power following Brexit, with five coherent, if ambitious, goals. This strategy represents a more integrated approach to space activity across commercial, scientific, and defense sectors which is to be welcomed.
The strategy itself does not indicate a radically new departure for U.K. space ambitions and focuses on the applications of space activity and the need for sovereign U.K. launch capability. Whether the strategy will prove to be successful will ultimately depend on the level of investment provided by the U.K. government. Attempts to refine the contours of liability and especially the insurance issues within the Outer Space Act 1986 show that the U.K. is mindful of trying to balance responsible and robust regulation with the need to maintain a competitive environment for those involved in the space economy. The Space Industry Act 2018 and the subsequent promulgation of the SIR attempt to breathe life into the LaunchUK industry. That development, coupled with investment to underpin the goals of the strategy, could, in turn, become a catalyst for renewed development within the wider space sector in the U.K.
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1. Tim Peake was the first British astronaut to go through the ESA Astronaut Program (for details, see ESA, 2021). Dr. Helen Sharman was the first British astronaut to travel to the Mir Space Station aboard Soyuz TM-12, although the nature of her trip was through a private British project, not the ESA Astronaut Program. For further details, see Cavallaro (2017, pp. 113–119).
5. The delegation of powers from the Secretary of State named in a statute to an official or even to a government agency is well established within the administrative law of England and Wales. See the case of Carltona v Commissioner (1943) for details.