Twenty Twenty Vision – The Spaceflight Bill 2017

Three years is not a long time, particularly when ambitious goals are set. Yet 2020 is the year envisaged for the UK’s first spaceport.

To realise a spaceport you need legislation to authorise and regulate space activity – which is precisely what the Spaceflight Bill 2017 does. Published in February this is a hugely significant body of law since it lays the foundations for commercial space activity in this country.

Sub-orbital flights akin to Virgin Galactic’s planned flights in the US, will be licensed together with small satellite launches. At a stroke the proposed legislation will bring the UK into the space launch marketplace. And the timing is apposite. Whilst it is true (though not commonly appreciated) the UK has for many years led the world in satellite technology, applications and services, what the proposed law will achieve is driving other emerging commercial markets in space endeavour.

We are at the beginning of a new space race and it’s one driven increasingly by commercial operators. Our lives on earth depend in no small measure on space services. Satellite navigation, weather forecasting, television and internet access all demand satellites. It’s a market which continues to grow. You’d be forgiven for thinking however that market is firmly rooted in the USA, Russia and China – together with other emerging space actors. Yet the UK space industry is worth more than £13.7 billion to the economy. What it’s been missing however is infrastructure – our own launch capability.

The draft Bill liberates launch.

Several sites for the UK’s first spaceport are already proposed.

With your own launch capability you don’t rely on foreign suppliers for launching spacecraft. Having our own launch facilities will help secure the Government’s goal to grow the UK’s share of the global space sector to 10% by 2030.

But launch to where?

Space clearly.

But what is understood to be the boundary of the atmosphere and the void of space is not the subject of common treatment internationally.

There is a broadly accepted boundary known as the von Karman line – 100 km. Though it isn’t legally defined.

But the proposed law effectively defines its ambit in relation to spacecraft operations.

Because section 1(3)(a) states that it applies to “a rocket or other craft that is capable of operating above the stratosphere”.

The atmosphere ends at approximately 50km. So are such craft ‘spacecraft’ if they operate above the atmosphere – but not necessarily at the boundary of what is largely considered out space? It’s an important point because UK air space (in the atmosphere) is subject to UK national sovereignty – but outer space isn’t.

There are a series of international treaties governing space activity which are all predicated on activity in outer space.

Allied to the ambition to make British shores the departure gate for access to space is the essential need to make that access affordable. If the potential of space is to be harnessed then the costs of entry need to be as low as possible. That is the goal and focus of all the commercial operators currently engaged in space. And it appears to be working. Space-X and Blue Origin in the US – each recognise that reusability is key to the long term commercial viability of space.

So the draft Bill seeks to make available and support the UK space sector’s international development, reduce risk and liabilities, protect the safety of anyone participating in space flight – and mitigate risk for third parties.

Which brings me to the issue of how to be sure you have got the consent of all these new civilian sub-orbital space participants (call them space tourists, passengers, but possibly not astronauts) all eager to experience space (and weightlessness) for a few minutes – and start their journey from a UK spaceport?

Well section 15 of the proposed Bill refers to ‘informed consent’ – though what constitutes informed consent is clearly going to tax lawyers for some time into the future. One imagines everyone can appreciate space is dangerous. But how dangerous – and why – is another matter. As a space operator, you’ll have to articulate highly technical concepts associated with spaceflight, in a neat series of clauses to be sure you can rely on clear informed consent. And if the space operator is negligent in its performance of space activity launched from the UK, it is not easy to see how a simple waiver in a contract with the paying space participant can work under English law.

The content of the Bill clearly envisages a good deal of secondary legislation to facilitate its broad objectives. How do you regulate restricted launch zones? What astronaut training is needed? What are the insurance requirements? – but the overall goal is clear enough, meaning there is opportunity to finesse the proposed law before it becomes law.
The Government hopes the draft Bill will attract potential investment in spaceplane operations and spaceports which will in turn ignite innovation. The first licences for launch and sub-orbital activities should be granted by 2020.

The reason there is cause for optimism is that this development follows the announcement also in February of £10 million as an incentive for commercial spaceflight projects in the UK.
I think publication of the Spaceflight Bill represents more than an idle nod to an interesting yet ultimately unattainable ambition. I think it is founded on a recognition that after 50 years of manned spaceflight, a viable new commercial era has dawned, and the UK can and should be a participant.

Andrew Sparrow
Founder, Lecote Technology Lawyers

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