Q: What does the Space Industry Bill have to do with the separation of powers? A: More than you’d think

The EU (Withdrawal) Bill has focussed attention on the making of secondary legislation and its separation of powers implications. But in fact most modern legislation confers extensive delegated powers — and the Space Industry Bill, which currently being considered by Parliament, is a textbook example.

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The Space Industry Bill, which is currently making its way through Parliament, hardly sounds like the sort of legislation that is likely to raise significant constitutional issues. As its own preamble puts it, it is ‘a Bill to make provision about space activities and sub-orbital activities, and for connected purposes’. In fact, however, the Bill serves as nothing less than a case study in a variety of drafting techniques that are becoming increasingly common and which, individually and collectively, give rise to separation of powers concerns. It was partly for this reason that the House of Lords Constitution Committee published a report on the Bill in early September, albeit that that report did not attract quite as much attention as its latest intervention, published the previous day, in relation to the EU (Withdrawal) Bill.

There is, however, a connection between the two Bills. While the Withdrawal Bill is, without question, a uniquely egregious example of the executive seeking inappropriately broad and insufficiently controlled powers from Parliament, the Space Industry Bill serves as a more mundane example of the way in which the accretion of administrative law-making authority is becoming commonplace. In that respect, the Space Industry Bill might fairly be considered a no less important, albeit far less dramatic, barometer of the separation of powers in the UK today. What, then, is it about the Bill that is of concern?

Six concerns

First, the delegated powers granted by the Bill are as numerous as they are broad. Although the Bill stretches to a relatively modest 71 clauses, it manages to pack in roughly 100 delegated powers. And a number of the powers are notably broad. Indeed, even some fundamental policy choices are left to Ministers exercising delegated powers rather than being set out on the face of the Bill. The legislation, for instance, creates extensive regulatory functions but does not prescribe by whom they are to be performed. Instead, it is left to Ministers to choose whether those functions should be performed by the Secretary of State, by the Civil Aviation Authority, or by ‘another person’. Other powers are framed very loosely indeed. For example, clause 17(1) says that regulations ‘may make provision with respect to the training, qualifications and medical fitness’ of certain categories of individuals. And while schedule 2 contains illustrative examples of such ‘training regulations’, that list explicitly does not circumscribe the regulation-making power.

Second, the Bill is unaccompanied by any draft regulations. In the case of a relatively skeletal Bill like this one, this has obvious implications for parliamentary scrutiny, it being difficult for legislators to acquire an overall sense of the likely implications of the Bill in such circumstances. That said, the Government has published ‘policy scoping notes’ — which are something of an innovation — indicating how some of the delegated powers will be used. This is welcome as far as it goes, but it is not the same as draft regulations. Nor, it need hardly be said, is it the same as including more detail on the face of the Bill to begin with.

Third, while some of the regulation-making powers in the Bill are subject to the affirmative procedure, in a number of cases that procedure is required only upon the first use of the powers, subsequent uses being subject only to annulment — and so, in practice, to minimial-to-non-existent parliamentary control. The thinking behind the affirmative-procedure-on-first-use model is presumably that it affords greater opportunity for parliamentary scrutiny when the regulation-making power is being used to create a whole new set of regulations, whereas subsequent amendments warrant lesser scrutiny. However, this logic is, at best, questionable. It is, after all, entirely possible that subsequent uses of the power may involve wide-ranging amendments, or even the replacement of the original regulations with a new set. This point did not escape the House of Lords Delegated Powers and Regulatory Reform Committee, which, in its recent report on the Bill, said:

The technique is open to abuse. The first set of regulations, the affirmative ones, might only be very short, leaving subsequent negative regulations to provide the real substance. We assess delegated powers not merely on how the present Government propose to use them but on how any future government could use them.

Fourth, clause 66(2) of the Bill provides that: ‘The Secretary of State may by regulations make provision that is consequential on any provision made by this Act.’ This broad power is a Henry VIII power because, according to clause 66(3), it can be used to ‘amend, repeal or revoke any enactment passed or made before this Act or in the same Session’. The use of Henry VIII powers normally is — and normally should — be subject to the affirmative procedure. However, this Henry VIII power is subject to that procedure only in part: it applies when regulations ‘amend’ primary legislation, but the annulment procedure applies otherwise — including, presumably, when primary legislation is repealed by regulations. It may be that ‘amend’ here is supposed to include ‘repeal’, but that seems unlikely, given that ‘amend’ and ‘repeal’ are specified separately in clause 66(3).

Fifth, the Henry VIII granted by clause 66(2) extends not only to UK but also to devolved legislation. However, no special arrangements are made for the devolved legislatures’ consent to be obtained before the power is exercised, and no such consent is required by the Sewel Convention, which only applies to UK primary legislation that concerns devolved matters. This is not the first time in the recent past that UK legislation has granted Henry VIII powers extending to devolved legislation while making no provision for consent, the Wales Act 2017 being another example of this phenomenon.

Sixth, the Bill contains a very broad ‘catch-all’ regulation-making power. Clause 67(1) provides that: ‘Regulations may make provision generally for carrying this Act into effect and for achieving the purpose set out in [clause] 1(1).’ And clause (1) says that the Bill has effect for the purpose of regulating space activities, sub-orbital activities, and associated activities carried out in the UK. The purpose of the Bill is thus set out in very broad terms indeed, rendering the clause 67(1) power commensurately wide. Among other things, the existence of such a power will make it relatively difficult to seek judicial review on the ground that the scope of individual powers conferred by the Bill have been exceeded. Indeed, the catch-all power in effect undercuts those limits, given that when they inconveniently apply so as to narrow specific powers in the Bill, the general power may instead be available.

A broader point

The points set out above may appear to, and to some extent are, dry and technical ones. But they — and the Space Industry Bill to which they relate — serve to illustrate the reality of modern legislation. The conferral of multiple, broad, overlapping powers that are expressed in ways that make judicial review difficult and shield their exercise from meaningful parliamentary scrutiny is now unremarkable. One response to this phenomenon is to say that this is how modern government works: that much legislation is needed; that Parliament cannot enact it all; that it cannot even scrutinise its administrative enactment in any detail; and that the executive therefore requires such powers.

A better response, however, is to see the first response for what it is — a counsel of despair that relegates the separation of powers principle, and the policy concerns that animate it, to the ‘nice but inconvenient’ category. The fact that large volumes of delegated legislation are (deemed to be) necessary does not inevitably mean that constitutional principle must be sacrificed to the extent that it currently is. Indeed, our system, at present, is set up very poorly when it comes to the making of delegated legislation. Such legislation cannot normally be amended, meaning that it must be approved unless the nuclear option of outright rejection is to be taken; the House of Lords is subject to the threat of having its powers stripped away should it ultimately refuse to knuckle under; and Parliament in general lacks the capacity to exercise its own discretion so as to divert secondary legislation that is more than merely technical into elevated scrutiny processes. Indeed, the legislation-as-sausage-making metaphor could hardly apply with greater force than it does to the making of most delegated legislation — which, given that delegated legislation dwarfs primary legislation in volume, mean most legislation, period.

The EU (Withdrawal) Bill has, improbable though it may seem, made delegated legislation and the separation of powers front-page news. The reality, however, is that that Bill is merely the tip — albeit a large and particularly objectionable tip — of the iceberg, as the Space Industry Bill and countless other pieces of comparable legislation demonstrate. It would be naïve to suggest that delegated legislation is unnecessary or could be radically reduced in volume. But if, as it surely ought to be, the EU (Withdrawal) Bill ends up being amended to a limit the powers it grants and to enhance Parliament’s role in overseeing their exercise, it is to be hoped that that will prompt reflection on the much wider constitutional issues upon which that Bill has rightly focussed attention.

This post is written in a purely personal capacity.