Up, up and Away: An Update on the UK’s Latest

Plans for Space Activities*

Lesley Jane SMITH** & Ruairidh J.M. LEISHMAN**

The ever-increasing number of private actors operating in the space industry is giving rise to the
concern for adequate domestic legal frameworks to regulate commercial space activities, and the
UK is no exception. This article provides a comprehensive review and outline of the UK’s most
recently enacted national space law, namely the Space Industry Act 2018. The article identifies
and discusses the component elements of the 2018 Act, such as licensing, regulatory require-
ments, and liability and indemnity implications. Many of these are common to other national
space legislation and other national space legislation is therefore considered briefly for comparative
purposes. The article critically analyses the 2018 Act from the perspective of whether it aligns
with the UK government’s stated aim to foster the development of private space activities from the
UK, and whether the correct balance has been struck between ensuring regulatory requirements
yet encouraging commercial ventures. The article also seeks to address, as far as possible – given
the absence of formal arrangements at the time of writing – some of the issues posed by Brexit in
this sector and how the UK is attempting to ‘future proof’ against these.

1 BACKGROUND
The United Kingdom (UK) is currently facing various challenges, in part driven by
the termination of its membership of the European Union (EU) from the end of
March 2019.1 At the same time, the UK is wishing to secure its core position in
the ongoing developments within the outer space sector, by developing a national
infrastructure for space operations and increasing its participation in the global
space market. These aspirations have been formulated under the mantle of the UK
government’s technology-driven policy goals of fostering the industrial and scien-
tific leadership of its national aerospace sector.2

*
Title inspired by and credited to the Grammy Award music title by fifth Dimension ‘Up, up and away
in my beautiful balloon,’ 1967.
**
Prof. Dr Lesley Jane Smith LL.M., Solicitor, Leuphana University Lueneburg, Law School, Weber-
Steinhaus & Smith, Bremen & Ruairidh J.M. Leishman, Trainee Solicitor, Jones Whyte Law, UK, All
views expressed are the authors’ own. Emails: [email protected]; [email protected].
1
The European Union (Withdrawal) Act (2018), c. 16, received Royal Assent on 26 June 2018 and is
available http://www.legislation.gov.uk/ukpga/2018/16/contents/enacted (accessed 15 Dec. 2018).
2
The UK Government has various core reports and published studies relating to the development of its
infrastructure, see e.g. House of Commons Committee on Exiting Europe, Space Sector Report,
2017–2019, available online https://www.parliament.uk/documents/commons-committees/Exiting-

Smith, Lesley Jane & Leishman, Ruairidh J.M. ‘Up, up and Away: An Update on the UK’s Latest Plans for
Space Activities’. Air & Space Law 44, no. 1 (2019): 1–26.
© 2019 Kluwer Law International BV, The Netherlands
2 AIR AND SPACE LAW

The UK is a longstanding member of the European Space Agency (ESA), the

European-centric international governmental organization for space science, research
and technology. ESA initially developed out of European efforts to tackle space science
in the early sixties, and was first consolidated in its present form as an Agency in 1975.3
Now, with its imminent departure from the European Union, the UK’s participation
in the EU-own space programmes, namely Galileo and Copernicus, is on the verge of
being fundamentally altered, or as it emerges, at least put on firm hold.4 While, in
theory, this should have no direct impact on the UK’s membership and participation
in ESA-funded space programmes, it does influence the UK’s interaction with ESA, at
least where the latter is operating as the Contracting Agency in managing and
procuring for the above EU-programmes on behalf of the EU.5 This step leads to
yet another subdivision in the existing two-track European divergent EU and ESA
space segments, each operating space programmes funded under differing rules and
where participation in the EU programmes is now restricted to EU27.6
This article therefore considers recent legislative developments within the UK
in the domain of space law, by which its government seeks to secure the above goals
and develop appropriate launching facilities in order to embrace new space markets.
Launching operations require a pertinent regulatory framework to support activities
at national level. This is to ensure compliance with various aspects: be this the
environmental impact, or stemming from commitments that attach to launching
states and those undertaking space activities under international space treaty law.7
The article reviews the recent Space Industry Act 2018, examines the various levels
of cooperation in place with stakeholders, before concluding with how this industrial
policy goal can be reasonably achieved by the UK, and its likely impact on
continuing UK relations with the rest of the space community at international level.

the-European-Union/17-19/Sectoral%20Analyses/34-Space-Report.pdf,with further references to

OECD Space economy at a Glance, 2014; London Economics, Size and Health of the UK Space
Industry (2016); see also UK Space Innovation and Growth Strategy 2014–2030; further, UK Space
Growth Action Plan 2013.
3
For an overview of the post war developments and cooperation between Europe and USA, subse-
quently leading to the establishment of European Space Agency, see https://www.esa.int/About_Us/
Welcome_to_ESA/ESA_history/History_of_Europe_in_space.
4
E.g. participation in the Galileo project – https://www.theguardian.com/politics/2018/may/24/eu-
split-exclusion-uk-galileo-brexit, accessed 30 July 2018.
5
ESA is authorized to act in connection with the EU programmes under designated delegated powers
from the European Union contained in the EU-ESA Delegation Agreement Dec. 2016, see European
Commission, Report to Parliament and Council on the Implementation of the Galileo and EGNOS
Programmes and on the performance of the European GNSS Agency, COM(2017) 616 fin 23 Oct.
2017.
6
ESA currently has twenty-two Member States, not all of which are members of the EU, such as
Switzerland. Cooperation agreements are in place with Canada, Bulgaria, Croatia, Cyprus, Latvia,
Lithuania, Malta and Slovakia.
7
Notably Art. VII Outer Space Treaty (OST) and Art. II, Art. III Convention on International Liability
for damage caused by space objects (LIAB) .
 UK’S LATEST PLANS FOR SPACE ACTIVITIES 3

2 SPACE AS A STRATEGIC MARKET

2.1 THE UK’s share of global space market

Space and space-based activities are part of a state’s critical national infrastructure,
being those IT-based services and operational facilities which contribute to ensuring
that core functions of a state can continue, not only during emergencies or disasters,
but beyond. A ‘national infrastructure’ also includes elements of modern industrial
supply chains, without which essential supplies and services for society cannot be
delivered.8 ‘Infrastructure’ is therefore inherently linked to and includes service-
based, satellite communication and navigation driven operations. The former is a
field where the UK has, through its satellite manufacturing capabilities, contributed
to about ten per cent of the world’s large satellite telecom capabilities. The latter is a
field where the UK has made key contributions to the EU Galileo programme, as
well as to capabilities for e.g. international disaster monitoring, surveillance and earth
observation (EO).9 The UK’s space capabilities have increased significantly in recent
years, latterly by focusing on ESA-driven inward investment into satellite testing
facilities along with a start-up hub located in Harwell (Oxf.), designed to support
development within the commercial sector.10 With the UK now responsible for
some 6.5% of the global space economy11 and its stated aim to capture 10% of the
global space market by 2030,12 the UK Government has identified the lack of a
spaceport or launch site in the UK as both an obstacle to achieving this goal, and as a
significant gap in the current UK Space Industry offering.13

8
See Directive (EU) 2016/1148 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 6 July 2016 concerning measures for a high common level of security of network and information
systems across the Union, OJ L 194/2016, 19 July 2016, at 1 (‘NIS’ Directive) .
9
Surrey Satellites designed and manufactured the hardware (small satellites) for the Disaster
Constellation Earth Observation and monitoring platforms deployed within the scope of the
Disaster Charter International Charter ‘Space and Major Disasters’ and used to deliver free high-
resolution spectral satellite imagery for humanitarian use in the event of major international disasters
such as tsunamis, hurricanes, fires and flooding. This constellation is managed by DMCii, for further
information, see http://www.dmcii.com/?page_id=9275, accessed 23 Sept. 2018.
10
See UK Report available at https://www.parliament.uk/documents/commons-committees/Exiting-
the-European-Union/17-19/Sectoral%20Analyses/34-Space-Report.pdf, accessed 23 Sept. 2018.
11
UK Space Agency, The Size and Health of the UK Space Industry 2016 1 (Dec. 2016), https://www.gov.
uk/government/uploads/system/uploads/attachment_data/file/575769/Size_and_Health_summary_
report_2016.pdf, accessed 11 Aug. 2018. It is predicted for the UK that by 2030, the space market will
be valued at USD 400 bn.
12
UK Space Agency, Annual Report 2017–18 at page 9, https://assets.publishing.service.gov.uk/govern
ment/uploads/system/uploads/attachment_data/file/725915/AnnualReport17-18.pdf, accessed 03
Aug. 2018.
13
For further insight into the impact of Brexit on Galileo related capabilities, see Financial Times, 28
Apr. 2018. While this article focuses primarily on civilian space, it should be noted that the increased
capabilities of civilian satellites and notably data resolution has opened a high level of convergence
between civilian and military satellite capabilities, details of which are not expanded on here.
4 AIR AND SPACE LAW

2.2 UK launch sites

In its quest to identify suitable launch sites, the UK government commissioned a

review of potential spaceport locations in July 2014. The report reviewed all civil
and military aerodromes within the UK to identify those that meet the funda-
mental criteria of runway length, local airspace complexity and population
density.14 Forty-six potential sites were identified. Some were ruled out straight
away as not currently being operational or in the case of Heathrow and Gatwick,
for obvious reasons of density of population and increasing burdens of extending
passenger capacity. Once an analysis of the civilian sites was conducted, including
consideration of their aircraft movement rates, twenty-six potential sites
remained.15 Of the twenty-six, several were near to or in areas of high popula-
tion density and eighteen of them were military aerodromes. The latter would,
therefore, require military agreement for their use. At the time of the review, the
Ministry of Defence (MOD) indicated its support of the Review and some
potential military aerodromes were considered for launches. However, it was
recognized that using one of these eighteen sites would not be practical. In the
view of the current authors, it would only lead to additional red tape and increase
the complexity of the operation for a commercial operator, even before the
security implications are dealt with. For these reasons they are not addressed
further in this article.
It was recommended that a coastal location would be best for any future UK
spaceports. This would minimize any risk to the public and assist with the
environmental issues.16 Several suitable civilian sites were ultimately identified,
namely Glasgow Prestwick Airport (Scotland); Campbeltown Airport (Scotland);
Newquay Cornwall (England); and Llanbedr (Wales). Following its call for grant
proposals in Spring 2017, the UK Space Agency (UKSA) assessed twenty-six
proposals to determine what would deliver the best value for money and strategic
opportunity for the growth of the UK space sector.17
In July 2018, the UKSA selected Lockheed Martin to work in partnership
with Orbex to establish vertical launch operations in Sutherland, Scotland, provid-
ing millions of pounds in grant assistance to realize this project.18 Additionally,
Cornwall is to benefit from a commercial partnership with Virgin Orbit, which has

14
UK Government review of commercial spaceplane certification and operations: summary and con-
clusions, July 2014, at 53–54, https://www.gov.uk/government/publications/commercial-space
plane-certification-and-operations-uk-government-review, accessed 18 Feb. 2018.
15
Ibid., at 54.
16
Ibid., at 55.
17
https://ukdefencejournal.org.uk/scotland-to-be-the-site-of-the-uk-space-agencys-first-spaceport/,
accessed 23 Sept. 2018.
18
Ibid.
 UK’S LATEST PLANS FOR SPACE ACTIVITIES 5

selected Spaceport Cornwall as an ideal location to operate and deliver one of the
first launches of its horizontal LauncherOne system outside of its US home.19
It is fortuitous that the UK can take advantage of locations in northern
Scotland as suitable terrain for launches into orbit. The north of Scotland offers
suitable positioning for access to polar and sun-synchronous orbits.20 This provides
opportunities for increasing numbers of smaller EO satellites, as well as the larger
constellation platforms of microsatellites. Indeed, what has been described as the
first commercial rocket test launch has already successfully taken place in the
Scottish Highlands. In August 2018, Edinburgh-based Skyrora launched its
Skylark Nano on land at Kildermorie, north–west of Evanton in Easter Ross.21
Access to launching infrastructure is a major factor contributing to a state’s ability to
develop its national space market. It also compels a state to exercise a key regulatory
function because, under international space treaty law, obligations are imposed on a
launching state’s government towards third states in the event of damage caused by their
launches or by satellites in orbit.22 In times where the viability of outer space activities is
under severe threat from orbital debris, governments are also keen to ensure the security
of their space assets and are collaborating in data exchange schemes at agency and
bilateral level with a view to limiting risk, also under the systems developing for Space
Situational Awareness (SSA) and Space Traffic Management (STM).23

2.3 COMMERCIAL SPACE ACTIVITIES

Whilst it can be accurately said that outer space was once firmly the domain of
governmental bodies, commercial activity in the space sector continues to increase
steadily year on year, with diversification of activities now going beyond tele-
communications and human space flight, to include small satellite operations. This
calls for greater vigilance by national governments, not only in view of the
requirements under international space treaty law commitments to supervise and
monitor these activities, but as well as to ensure registration of national space

19
http://www.spaceportcornwall.com/pdfs/satellite-launches-set-to-return-to-British-soil-after-50-
years.pdf, accessed 23 Sept. 2018.
20
Tamela Maciel, UK Spaceport: FAQ (17 July 2018), https://spacecentre.co.uk/blog-post/uk-space
port-faq/, accessed 19 Sept. 2018.
21
BBC Scotland, https://www.bbc.co.uk/news/uk-scotland-highlands-islands-45367640, accessed 19
Sept. 2018.
22
Ibid., Arts VII OST; Arts. II, III LIAB; Settlement of Claim between Canada and the Union of Soviet
Socialist Republics for Damage Caused by ‘Cosmos 954’ (Released on 2 Apr. 1981), http://www.
spacelaw.olemiss.edu/library/space/International_Agreements/Bilateral/1981%20Canada-%20USSR
%20Cosmos%20954.pdf, accessed 20 Sept. 2018.
23
See generally, C. Doldirina, O. Batura & L. J. Smith, Space Situational Awareness on a Global Scale:
Pertinent Legal Issues, IAC-18-A6.8–8345, 69th International Astronautical Congress, Bremen,
Germany, 1–5 Oct. 2018.
6 AIR AND SPACE LAW

objects. Despite the visibility of commercial space operators in today’s digital

internet driven environment, this does not alter the balance in the relationship
between states and their national space activities. Undertaking space activities by
commercial entities and entrepreneurs is, by virtue of treaty law, a domain that is
dependent on prior state approval.24 Therefore, non-governmental entities cannot
undertake space operations without the consent and oversight of a state.
Access to launching facilities remains a major strategic advantage for coun-
tries that can provide not only national, but also foreign commercial launch
services. Indeed, the UK is not alone in seeking to bolster its offering in the space
industry by providing commercial launch services.25 The commercial launch
market is not limited to national borders and can be seen to serve the ‘mobility’
of space markets. Export-control rules have been developed across the space
nations, maturing over time to incorporate dual-use technologies imported for
launch purposes.26 Some interesting exceptions are also in place, which facilitate
space agency-related transport, taking these out of the direct scope of national
customs control and providing at least a reliable basis for exchange of services and
know-how.27
Along with other paradigms triggered by the technology leap gained through
industry 4.0, specific transitions and game changes are underway across the world’s
space markets. Space technology is down-sizing, and access to space is becoming
less costly, with space operations more easily accessible from lower earth orbits.
Future markets are also being mapped out to bring space-derived benefits closer to
society through the use of integrated applications. This offers scope for developing
space activities on the basis of terrestrial-managed operations. The extent to which
this will become feasible is currently being investigated using technologies and
applications that support high accuracy positioning, navigation, timing (PNT) and
EO capabilities.

3 INSTITUTIONAL PARAMETERS
3.1 TREATY RULES GOVERNING SPACE ACTIVITIES

The core of the codex juris spatialis consists of five dedicated international space law
treaties promulgated under the aegis of the United Nations. As a signatory to four

24
Art. VI OST.
25
Vidya Sagar Reddy Avuthu, More Players Rising in Space Launch Vehicle Market, https://www.orfonline.
org/research/more-players-rising-in-space-launch-vehicle-market/, accessed 20 Sept. 2018.
26
The EU export systems is regulated in Council Regulation (EC) No. 428/2009 of 5 May 2009 setting
up a Community regime for the control of exports, transfer, brokering and transit of dual-use items,
OJ L 134 of 29 May 2009.
27
The ESA Convention provides for an exception to export control when the exports are inter-agency.
 UK’S LATEST PLANS FOR SPACE ACTIVITIES 7

of these treaties,28 the UK has long exhibited enthusiasm and ambition in relation
to outer space activities.29 Those four treaties contain requirements for national
control and supervision of space activities,30 for national and international registra-
tion of space objects,31 and ultimately for assumption of obligations attaching to
launching states, as defined in the Liability Convention, for damage either on earth
or in orbit.32
The most recent developments in the UK’s approach to regulating space,
followed as a second step to initial structural reforms, is described in detail
below.

3.2 NATIONAL SPACE AUTHORITY

Until relatively recently, the UK had no independent space agency, rather

overseeing activities through its former British National Space Centre
(BNSC), which brought together a conglomerate of governmental departments
and research councils in Swindon, (Wilts). With the establishment of the
UKSA on 1 April 2010,33 along with the accompanying re-organization of
the Department of Trade, the former space centre structure changed, enabling
the creation of an independent executive space agency along the lines of
existing foreign space agency models such as NASA and CNES. Nevertheless,
the UKSA still remains accountable to national government in the implemen-
tation of space policy and for consultation and regulations governing space
activities, with the national government Minister carrying the responsibility for
final decisions.
The UK is obliged to authorize and continually supervise the activities of its
non-governmental entities by virtue of its international obligations under the
Outer Space Treaty (OST).34 This treaty requires the UK always to be mindful
of the financial and other risks posed by private companies by virtue of their
operating in the space sector.35 While these risks fall primarily on states at
28
1967 Outer Space Treaty (OST); 1968 Rescue and Return Agreement (ARRA); 1972 Convention
on Liability for Damage caused by space objects (LIAB); 1979 Convention on Registration of Objects
launched into Outer Space (REG). The UK is not a party to the Moon Agreement, which, as of 01
Jan. 2018, has four signatories and eighteen ratifications.
29
Indeed, the UK was one of the three original depositories of the OST at the United Nations.
30
Art. VI, OST; see Michael Gerhard, Article VI of the Outer Space Treaty, in Cologne Commentary on Space
Law, Volume I (Hobe et al. eds, Carl Heymanns, Cologne 2009).
31
Art. I, REG; see generally Hobe et al. (eds), Cologne Commentary on Space Law, Volume II (Carl
Heymanns, Cologne 2009).
32
Arts II and III, LIAB; see generally Hobe et al., supra n. 32.
33
S. Mosteshar, Regulation of Space Activities in the United Kingdom, in National Regulation of Space Activities
358 (Ram S. Jakhu ed., Springer 2010).
34
Art. VI, OST.
35
Arts II and III, LIAB.
8 AIR AND SPACE LAW

international level, national regulations are required in order to pass-on relevant

indemnity obligations to the commercial sector. The United States36 and France,37
as leading global launching states, were among the first to develop regulations for
authorizing space activities, ensuring that acceptable levels of liability insurance and
indemnification are put in place under the licensing provisions applicable to
commercial operators. Clear regulatory structures need to reflect the hazardous
nature of outer space activities and the central role assumed by launching states.
Despite the comparatively limited number of incidents,38 these make for poten-
tially high level volume losses and call for appropriate risk management provisions
to be put in place.39

3.2[a] Pre-Existing UK National Space Law

Until 2018, the UK complied with its international obligations under the inter-
national space law treaties by virtue of the Outer Space Act 1986 (hereinafter ‘OSA
1986’). With the promulgation of the 2018 Act, the OSA 1986 now only applies
to space activities taking place outside of UK territory.40
The OSA 1986 implemented UK obligations under the aforementioned space
treaties by providing a legal and regulatory framework for space activities con-
ducted by UK nationals, irrespective of where conducted, and by organizations
established in the UK.41 Prior to the introduction of the OSA 1986, activities in
outer space involving the UK were carried out by governmental agencies or by
non-governmental bodies of a public character.42 The purposes of the OSA 1986
were said to be twofold: to provide private sector operators with a secure legal

36
The US space programme is divided into three divisions, namely civilian, military and commercial.
The first statutory regulation of the commercial space sector took place with the US Commercial
Launch Act 1984. That statute has since then been reformed and updated over time, the latest reform
being the US Commercial Space Launch Competitiveness Act 2015. This saw a revised assessment of
the MPL calculation involved in the risk and impact assessment for the government, see further,
https://www.faa.gov/news/fact_sheets/news_story.cfm?newsId=11559, accessed 17 Oct. 2018.
37
Loi 2008–058 sur les Opérations Spatiales (LOS) 2018, last revised 2018, full text available at https://
www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000018931380, accessed 21 Oct.
2018; further, P. Clerc, Space Law in the European Context, National Architecture, Legislation and Policy
in France (Eleven Publishers 2018).
38
No third party liability claims have been made in over two hundred commercial launches licensed in
the US since 1989 – Matthew Schaefer, The Need for Federal Preemption and International Negotiations
Regarding Liability Caps and Waivers of Liability in the US Commercial Space Industry, 33(1) Berkeley J.
Int’l L. 223, 225 (2015).
39
For measures adopted at EU level to provide its own space surveillance network, see Council Decision
(541/2014/EU establishing a Framework for Space Surveillance and Tracking Support, OJ L 158/227
of 27 May 2014.
40
S. 1, 2018 Act.
41
Mosteshar, supra n. 33, at 359; OSA 1986, s. 2. This reflects the general principle of international law
regulating jurisdiction ratio personae.
42
Colin Warbrick et al., The Outer Space Act, 35(4) ICLQ 986–990 at 986 (1986).
 UK’S LATEST PLANS FOR SPACE ACTIVITIES 9

framework for planning satellite projects in space and to facilitate compliance by

the UK with its international obligations.43
Crucially, however, the OSA 1986 did not provide a regulatory framework
which would cover commercial space travel or the development of a spaceport in
the UK, nor did it address the accompanying risks to safety and security that such
facilities and services could pose. The OSA 1986 imposed a licensing requirement
by the Secretary of State (UK Minister) for any of the forms of space activities that
are outlined in section 1 as any ‘space activity’, be this launching, procuring or
operating a space activity undertaken by a UK national. Undertaking unlicensed
space operations was an offence, although there were provisions for exemption
from licensing on the basis of reciprocal international arrangements that secured
compliance with UK international obligations.
Under the legislative provisions of Order in Council, the application of the
statute could be extended to other parts of the UK, over which it continues to owe
specific sovereign duties.44 Most significantly, section 10 OSA 1986 directed licen-
sees to undertake indemnity obligations towards the government in the event of
damage occurring to third parties. This requirement quickly became subject to
industry-driven criticism, notably from the growing small satellite sector.
Requiring UK operators to assume any excess unlimited liability that would other-
wise fall on the government after exhaustion of mandatory third party liability
insurance cover was in complete contrast to standard European government licen-
sing practice.45 The strict approach of the UK to seeing the government indemnified
by its commercial space industry was seen to be far less supportive than the approach
taken in other European jurisdictions. In the event of an international liability claim
against a government such as France, no claim for indemnification beyond the
insured liability ceiling level is made by the government against its industry.46

3.2[b] Reform of the OSA 1986 and Draft Space Industry Bill
In reviewing its options for a launching site, the UK Government considered that
neither existing aviation law nor its 1986 national space statute adequately covered
43
Ibid.
44
This explains the attraction of the Isle of Man as a small inward space investment jurisdiction, the UK
being responsible for its defence, and with this, ensuring its international obligations are upheld.
45
See Reform of the Outer Space Act 1986: Summary of responses and Government response to
consultation, 6 Dec. 2013, URN: UKSA/13/1326. This dialogue ultimately led to the UK govern-
ment lifting the unlimited liability obligation and introducing the already standard European and
French ceiling liability of sixty million GBP/Euros.
46
In those countries where space activities are not regulated by statute, such as is currently the case in
Germany, a government claim for indemnification would in any event fail in total if there is no
statutory basis for the indemnification. The German government is currently considering a draft
general national space statute.
10 AIR AND SPACE LAW

the risks to safety and security posed by commercial spaceflight activities in the
UK; these had an over-restricted scope insufficient to cover activities focusing on
access to space.47 Accordingly, a draft Bill was introduced into the House of
Lords48 on 27 June 2017, namely the Space Industry Bill – a document of
ninety-two pages in length – in which the UK set out on a new path towards
altitudes beyond the skies. The Bill, as amended, eventually became law in the
form of the Space Industry Act 2018, receiving Royal Assent on the 15 March
2018.
Despite these two pieces of legislation having been enacted some thirty-two
years apart, the rationale behind them seems clear: ‘commercial agitation’ in favour
of developing a launching market, followed by a governmental response.49
Through the promulgation of the Space Industry Act 2018, the UK
Government is seeking to fulfil its ambition for the UK to be a leading player in
the global space industry.50 With the advent of industry 4.0, robotics, cube sats and
moves to reduce the cost of access to space, such a step is undoubtedly not only
ambitious but forward-thinking. This marks an exciting moment: many European
states are active in the aerospace sector and notably in the space sector but
few – apart from France – have access to their own launching facilities.51
However, if the progress of the Bill through the House of Lords was rapid in
comparison to the norm for legislation, at some five months, the progress through
the House of Commons was even quicker. From being introduced in the House of
Commons on 29 November 2017, the Bill passed its second reading and
Committee stages in the House of Commons on 15 and 23 January 2018,
respectively. It is submitted, however, that rapid processing of legislation – even
if subjected to the normal process of consultation – may easily leave important
issues unresolved which, with hindsight, may have benefitted from further study or
dialogue. The subject of ‘how best’ to draft space operations statutes has been
reviewed and exercised over more than twenty years, with some strong examples
of how the various international state responsibilities and obligations can be

47
House of Commons, Briefing Paper Number CBP 8197, 2 Feb. 2018, at 3, http://researchbriefings.
parliament.uk/ResearchBriefing/Summary/CBP-8197, accessed 11 Feb. 2018.
48
The second legislative chamber in the UK Parliament.
49
This was also the driving force behind the New Zealand legislation – Melissa de Zwart & Joel Lisk,
Development of the New Zealand and Australian Space Industries: Regulation for a Sustainable Future,
RUMLAE Research Paper No. 17–11, 3 (1 Aug. 2017). Available at SSRN: https://ssrn.com/
abstract=3065730, accessed 19 Aug. 2018.
50
House of Commons, Briefing Paper Number CBP 8197, supra n. 47, at 5.
51
The Centre Spatial de Guyane (CSG) is currently the sole launching site with full capabilities in
Europe. Sweden has facilities for launching sound rockets. Guyane has the formal status of national
French département belonging to French national territory. CSG recently celebrated its fiftieth anni-
versary on 9 Apr. 2018.
 UK’S LATEST PLANS FOR SPACE ACTIVITIES 11

incorporated, both at the level of statutory provisions and accompanying delegated

regulations.52

3.2[c] Constitutional Issues Posed

The Space Industry Act 2018 is not the sort of legislation, which one would
ordinarily expect to raise any significant constitutional issues. Yet, the Bill gave rise
to such serious separation of powers concerns, that the House of Lords
Constitution Committee published a report on the Bill in September 2017.53 It
is beyond the scope of this article to provide a detailed critique of those concerns
and the interplay which the Act may or may not have with UK public law.54
However, the main concerns relate to the numerous delegated powers and their
lack of clarity. The need to control the limits of delegated powers is a subject
which has occupied courts over the decade, and continues to do so.55
The Bill, as initially proposed, conferred approximately one hundred dele-
gated powers to UK Government Ministers, some of which were very broad in
nature, with some quite fundamental policy choices being made via these dele-
gated powers, rather than being determined on the face of the Bill. The legislation
creates extensive regulatory functions, but does not prescribe by whom they are to
be performed: regulatory functions may be performed by the Secretary of State, or
by the Civil Aviation Authority (if the CAA has been designated by regulations in
respect of relevant functions), or by ‘another person’.56 Secondly, the Bill framed
other powers ‘very loosely indeed’.57
It is this lack of clarity which will be of more concern for the key players
in the space industry. For example, clause eighteen allowed for regulations to
make provision relating to the ‘training, qualifications and medical fitness’ of
individuals taking part in spaceflight activities or working at sights connected
with spaceflight activities. Whilst Schedule 2 to the Bill provides illustrative
examples of the ‘training regulations’, the list is explicitly not circumscribed by
52
The UNOOSA manages a database of all national space legislation submitted by Member States,
currently showing about twenty-six national regulatory provisions. See further, on national space law
‘Building blocks’; Michael Gerhard, Nationale Weltraumgesetzgebung (Heymanns: Cologne 2002).
53
House of Lords Select Committee on the Constitution, 2nd Report of Session 2017–19, Space
Industry Bill.
54
Professor Mark Elliot, What Does the Space Industry Bill Have to Do With the Separation of Powers?,
https://publiclawforeveryone.com/2017/09/23/q-what-does-the-space-industry-bill-have-to-do-
with-the-separation-of-powers-a-more-than-youd-think/, accessed 10 Jan. 2018.
55
The competence of courts to review delegated legislation for procedural or substantive irregularity has
been recognized over the years at national and European Union level, see e.g. Agricultural Training
Board v. Aylesbury Mushrooms [1972] All ER 280; Cases C-9/56 and C-10/56 Meroni v. High Authority,
judgment of the European Court of Justice, ECR [1957–58] 133 .
56
HofL Constitution Committee, supra n. 53, para. 5; Clause 15 of the Bill.
57
Elliot, supra n. 54.
12 AIR AND SPACE LAW

the regulation power contained in clause 18.58 Clause 19 allowed for regula-
tions to make provision for ‘safety regulations’. Again, there are illustrative
examples of the type of matter which the regulations may cover in Schedule 3
of the Bill, and were not tabled. However, they are only examples of potential
regulations which are permissive rather than prescriptive, and lacking in any
detail. These provisions as appeared in the Bill now remain unchanged in the
final 2018 Act.
Moreover, the 2018 Act does not provide sufficient detail about the licensing
requirements under the regulations, beyond putting spaceflight operators on notice
that regulations may provide for, inter alia, operating, safety and insurance
requirements.59 There are a few safeguards built in – for example, general regula-
tions can be made to make provision for generally carrying the 2018 Act into effect
and for achieving the purpose of regulating space activities, sub-orbital activities,
and associated activities carried out in the UK, but these must be subjected to
public consultation.60
One of the striking features of the 2018 Act is the frequent use of a permissive
rather than mandatory formulation throughout: many of the sections in the act
make use of the ‘may’ format rather than ‘shall’.61 This clearly grants the respon-
sible Minister, whom will be drafting the Statutory Instrument, wide discretion on
a broad range of factors, a matter which will be discussed further below.

4 CORE ISSUES IN REGULATION OF SPACE ACTIVITIES

This section examines the ‘hows and whys’ in the context of a brief overview of
the aerospace structure within the United Kingdom. It is followed by a dedicated
section discussing the particular legal aspects relating to the development of a
spaceport in the United Kingdom, particularly on the eve of its leaving the
European Union.

4.1 THE IMPACT OF TECHNOLOGY ON ACCESS TO SPACE

The lack of definitions within aerospace activities gives rise to concern about the
boundary between air space and outer space, if only for reasons of sovereignty over
national territory and air space. The discussion is often accompanied by reference
to the specific technical attributes of the aeroplane or rocket technology, which as
is further elaborated in Annex 7 to the Chicago Convention, focus on whether
58
Space Industry Bill, clause 18(2). N.B. Similar issues arise with Sch. 3 and clause 19.
59
Space Industry Bill, clauses 8–13.
60
Space Industry Act 2018, s. 68(7).
61
E.g. s. 5(2) - ‘Regulations may make provision for ... ’.
 UK’S LATEST PLANS FOR SPACE ACTIVITIES 13

there is thrust or take-off.62 There are no finite legal definitions of where outer
space starts, and airspace ends. However, reference is frequently made to the van
Karman line, this being a general guide to the physical functions of orbiting.63 This
situation is paralleled at international level, where there are distinct authorities
representing the interests of the two communities – international aviation and the
international community of states – when negotiating regulatory aspects of outer
space.64 While the debate is often accompanied by references to interpretation
such as the so-called functional or lowest functional orbit approach, or to the airlift
theory, the matter remains one which some states have chosen to regulate clearly at
national level. It is also an area which the UK has chosen to address in that specific
context, and is discussed below.
Of greatest significance today in this discussion, however, is a key character-
istic of so-called ‘exponential technologies’: these change what is technically
possible extremely quickly, reducing classic demarcations in existing capabilities.
Therefore, technology is providing a rapid answer to this vexed question by
ensuring that the capabilities of engines, planes and rockets are, if not assimilating,
are at least growing a little closer to one another, and that specific activities need
not take place at higher but now lower orbits. The realities of satellite capabilities
confirm that microsatellites can operate in Lower Earth Orbit to deliver a wide
range of services, from e.g. high spectral vegetation monitoring to weather; also
with potential for greater combination with navigation capabilities.

5 THE UK SPACE INDUSTRY ACT 2018

All these developments can be seen to provide a window of opportunity for the
UK and are reflected in its new Space Industry Act. The purpose of the 2018 Act
was to create a regulatory framework for the expansion of commercial space
activities and the development of a UK spaceport. To allow for the widest possible
commercial application, the 2018 Act allows for both horizontal and vertical

62
Annex 7 Chicago Convention 1944 contains no specific definition of aircraft but does refer to ‘any
machine that can derive support in the atmosphere from the reactions of the air other than the
reactions of the air against the earth surface’.
63
The ‘Von Karman line’ is calculated at c. hundred km/sixty-two miles for recording altitude levels, F.
Lyall & P. Larsen, Space Law: A Treatise, 133 (2nd ed., Ashgate 2017).
64
The Committee on the Peaceful Uses of Outer Space (UNCOPUOS) was set up in 1959 as a specialist
organ of the United Nations. The Committee was tasked with reviewing international cooperation in
peaceful uses of outer space, studying space-related activities that could be undertaken by the United
Nations, encouraging space research programmes, and studying legal problems arising from the
exploration of outer space, see further, http://www.unoosa.org/oosa/en/ourwork/copuos/index.
html, accessed 16 Sept. 2018. The International Civil Aviation Organization (ICAO) is a specialized
UN agency, established by States in 1944 to manage the administration and governance of the
Convention on International Civil Aviation (Chicago Convention), see https://www.icao.int/
about-icao/Pages/default.aspx, accessed 16 Sept. 2018.
14 AIR AND SPACE LAW

launches from the UK.65 The 2018 Act also specifically applies to both conven-
tional aircraft carrying space objects (i.e. Virgin Orbit’s LauncherOne system) and
to space objects as conventionally understood.66 It remains to be seen how this
purported usurpation of the domain of air law for aircraft carrying space objects
will work in practice or, indeed, if the aircraft in question will simply be subject to
two legal regimes.

5.1 HIGH-ALTITUDE V. SUB-ORBITAL – THE UK approach

As noted supra, although regulation of national airspace is driven by the continued
existence of sovereignty over that area, there is no definition under international
law of where air space ends and outer space begins. Indeed, the foundational
treaties of outer space law make no attempt at demarcation and many other States
have avoided or even opposed taking such a step.67 Notwithstanding this, the
Space Industry Act 2018 makes a clear distinction between ‘space activity’ and
‘suborbital activity’ in sub-sections 1(4) and 1(5). It should, however, be observed
that space activities and sub-orbital activities are both referred to in the Act as
‘spaceflight activities’.68 However, although the 2018 Act provides two categories
of license – one being the operator license, the other the spaceport license – both
types of spaceflight activity require those carrying them out to hold the same
‘operator license’.69
In evidence to the UK Parliament, one contributor recognized that the
definition of sub-orbital within the Act is problematic for several reasons.70
Subject to what may subsequently be contained in the expected secondary regula-
tions, there is, therefore, no distinction between the two for licensing purposes.
Sections 8 to 15 of the 2018 Act regulate licensing. These provisions do not

65
Horizontal take-off is described as a mobile launch pad that reduces the risks associated with vertical
launch pads that may arise through security or weather related impacts, For a fuller discussion of the
difference between horizontal and vertical take-offs, see https://ntrs.nasa.gov/archive/nasa/casi.ntrs.
nasa.gov/20120000791.pdf, accessed 16 Sept. 2018
66
Space Industry Act 2018, s. 1(4).
67
There are some notable exceptions to this, however: s. 8 of the Australian Space Activities Act 1998;
Art. 4(4) of the Nigerian Outer Space Act, no 409 of 11 May 2016; s. 1 of the South African Space
Affairs Act, Statutes of the Republic of South Africa – Trade and Industry No. 84 of 1993. See also the
Draft Bill, AB-1878 Corporate income taxes: exclusion: space transportation companies, introduced to
the California State Assembly on 17 Jan. 2018, which defines ‘Space’ as ‘an altitude of 62 statute miles
or more above the surface of the earth’, http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?
bill_id=201720180AB1878, accessed 24 Jan. 2018.
68
Space Industry Act 2018, s. 1(6).
69
Ibid., s. 3(2).
70
Written evidence submitted by Thomas Cheney, PhD Candidate in Space Law (University of
Sunderland), https://publications.parliament.uk/pa/cm201719/cmpublic/space/memo/sib01.htm, 01
Jan. 2018.
 UK’S LATEST PLANS FOR SPACE ACTIVITIES 15

contain the detailed criteria to be met other than compliance with such technical,
financial and security requirements, including those relating to safety, for an
application to be considered.
It is worth noting that the term ‘sub-orbital’ as used in the 2018 Act is used
inconsistently with its general use and use in foreign jurisdictions, particularly in
the United States.71 Secondly, the attempt to define sub-orbital in section 1(5) as,
‘(a) a rocket or other or other craft that is capable of operating above the stratosphere;
(b) a balloon that is capable of reaching the stratosphere carrying crew or passengers.’
clearly attempts to use the height reached by the spacecraft (the stratosphere) as the
point of demarcation between air space and outer space. In evidence, it was argued
that this is problematic for several reasons, and the immediate authors agree.
The stratosphere is defined as the layer of the earth’s atmosphere above the
troposphere, extending to about fifty km above the earth’s surface.72 Sub-orbital is
defined as relating to or denoting a trajectory that does not complete a full orbit of
the earth or other celestial body.73 Therefore, the height obtained by the flight is
irrelevant as to whether or not it should be classified as suborbital and thus, a
spaceflight activity. It is submitted that Cheney is correct when he asserts that the
term, suborbital, has been misused and that a better approach would be ‘high
altitude activities’ as was used in New Zealand’s Outer Space and High-Altitude
Activities Act 2017.74
Japan has taken an alternative approach to sub-orbital flights. The Japanese
Space Activities Act was promulgated on 16 November 2016 and came into force
on 15 November 2018.75 Surprisingly, the Japanese Act does not provide a
definition of ‘space activities’. Instead, it defines the following three types of
activities as falling within the scope of the legislation: launching objects such as
satellites into space; managing satellite operations; and managing satellite launch
sites.76 It has been submitted that the definition of a satellite under the Japanese Act
as ‘an artificial object which is used upon being launched into Earth’s orbit or
beyond, or placed on a celestial body other than the Earth’ would totally exclude
sub-orbital flights.77 It is said that this was a deliberate decision taken by the
Japanese government, rather than an oversight. The rationale being that the

71
Ibid.
72
Oxford English Dictionary, https://en.oxforddictionaries.com/definition/stratosphere, accessed 05
Aug. 2018; ibid.
73
Oxford English Dictionary, available at https://en.oxforddictionaries.com/definition/suborbital,
accessed 05 Aug. 2018; ibid.
74
Cheney, supra n. 70.
75
M. Uchino, Can Japan Launch Itself into Becoming a Leader in Global Space Business with its New Space
Legislation?, 69th International Astronautical Congress (IAC), Bremen, Germany, 4 (1–5 Oct. 2018).
76
Ibid.
77
Ibid.
16 AIR AND SPACE LAW

chances of sub-orbital flights affecting traditional orbital paths are very low and
therefore, should not require governmental supervision.78

5.2 STRUCTURE AND CONTENT OF THE LEGISLATION

The Space Industry Act 2018 is eighty-eight pages in length, has seventy two sections,
and is supplemented by twelve schedules. It regulates the full spectrum of what is
involved in space activities, namely their altitude (sub-orbital activities) and activities
associated with space operations carried out in the UK.79 The breadth of the statute
ranges accordingly from safety of operations, security, and goes beyond general issues
of liability insurance requirements to deal with rights over land, planning, environ-
mental impact assessments,80 alongside respecting the UK’s international obligations.
The Space Industry Act 2018 prohibits unlicensed space flights and suborbital
activities in the UK.81 The terms and conditions applicable to licenses are found in
sections 12 and 13. As with its predecessor statute, the 2018 Act includes provisions
enabling license exceptions by way of Order in Council in relation to those
countries with which there are international or bilateral agreements in place.82
Sections 12 and 13 are drafted in such a way that, while the licensing requirement
exists, it may be subjected to exemptions. Section 4(2) provides for other
exemptions from licensing requirements, where no issues of safety arise, unless
and insofar as there are indemnification obligations towards the UK government.
Section 13(8) makes it an offence to breach the license conditions.
Provision is made within the 2018 Act for the relevant Government Minister
to impose duties or confer powers upon the UK’s CAA with regards to the range
for spaceflight activities.83 To do so, the Minister is empowered to give these
directions under the Transport Act 2000.84 Again, this is only a permissive power
and something requires to be done before any oversight can be exercised by the
CAA. However, in the immediate authors’ opinion, this does give an indication
(albeit tentatively) of which agency the UK envisages having responsibility for
traffic management of spaceflight emanating from UK territory.
The 2018 Act also confers an express power upon the Secretary of State to
give directions to ‘regulated persons’85 to do, or not do, a specified thing in

78
Ibid.
79
Space Industry Act s. 1(1); Preamble.
80
Ibid., s. 11.
81
Ibid., s. 3(6).
82
The 2018 Act can be extended by Order in Council to Isle of Man, Channel Islands or British
Overseas Territory (BOT).
83
Space Industry Act 2018, s. 5(3).
84
Ibid.
85
Ibid., s. 28(8)(a) defines regulated person as a holder of a license under the Act.
 UK’S LATEST PLANS FOR SPACE ACTIVITIES 17

connection with any spaceflight activities or range control activities being under-
taken by that person or an associated company of the regulated person. This is
justified when the terms within the direction are deemed necessary to ensure the
UK complies with its international treaty obligations.86 Therefore, although this
seems a sweeping power, it is constrained by the fact that it should only be
exercised if the regulated person’s actions would put the UK in breach of any
international obligations.
Most interesting of all is the fact that the license designation is somewhat
unspecific. Even though licenses are required for the spaceport itself and
activities relating to space, there are no distinctions made equivalent to those
in France, for example, where the preliminary authorization relates to the
financial viability of the operator as a corporate entity, and thereafter the license
itself relates to the operation in question from a technical level. Safety is the
predominant criteria for granting a license, as is the assessment of environmental
effects.87
The regulatory functions on behalf of the Secretary of State from an admin-
istrative perspective are to be undertaken by either the CAA or other appointed
persons to carry out functions under the Act. In this respect the Act has harvested
criticism for this lack of specific delegation of powers.
The Act also contains provisions governing entry or action by the authorities
as well as emergency control.88
Provisions are also made under section 6 for triggering established interna-
tional procedures for maritime and coast guard agencies to issue notices to mariners
or to airspace users should the need arise.

5.2[a] Liability & Insurance

As stated supra, the OSA 1986 sought to ensure compliance with the UK’s
obligations under international treaties and the accompanying principles gov-
erning the use of outer space. This included liability for damage caused by
space objects. As originally enacted, all persons to whom the OSA 1986 applies,
whether licensed or not, were required to indemnify the UK Government
against any claims for damage or loss arising out of licensable activities.89 At the
time of its enactment, consistent with the US position, this was a mandatory
statutory obligation, to which no financial limit was set, and hence imposed an

86
Ibid., s. 29(1).
87
Ibid., ss10 and 11.
88
Ibid., s. 33.
89
OSA 1986, s. 10; Mosteshar, supra n. 33, at 360.
18 AIR AND SPACE LAW

unlimited liability.90 The US then amended its laws,91 with the UK eventually
following suit, by amending the legislation to allow for a liability cap to be
included in the license.92 This development was a direct consequence of
criticism from industry, which had led to formal consultations, with liability
subsequently being capped at Euro 60 million, along with a third party liability
insurance requirement. However, imposing the obligation upon UK satellite
manufacturers to indemnify the government fully against third party claims,
irrespective of what activity the actual project entailed, was recognized as a
significant additional burden. In 2015, it was announced that the third party
liability insurance cover may be withheld for certain categories of activities,
notably with small satellite community in mind.93 Despite attempts to impose a
mandatory cap on liability to indemnify the government whilst the 2018 Act
was passing through Parliament, an equivalent arrangement ultimately proved
unsuccessful.94 Although the 2018 Act does provide scope for a cap on liability
to be introduced, this remains at the discretion of the regulator granting the
license or via secondary regulations.95 At the time that the legislation was
enacted, it was far from clear that there would be a cap at all. It is submitted
that there is the possibility of adverse commercial ramifications, if commercial
operators are put off by this.96 This remains an issue that will be monitored
with interest in the forthcoming secondary regulations.
In what the authors submit is an effort to assuage any concerns of com-
mercial operators, the UKSA has recently announced the introduction of a new
‘sliding scale’ policy for the in-orbit third-party liability insurance requirements
it places on operators.97 The UKSA has explained that, ‘for missions such as a
low risk satellite deployed from or operating below the International Space
Station the requirement for the operator to hold in-orbit third party liability
insurance may be reduced or waived. On the other hand, it is likely that an
operator planning a higher-risk mission would need to hold a greater level of
insurance than that required for standard missions.’ No detail is available yet on
how these policies will operate. There are some obvious questions which jump
out such as, what defines a satellite mission as ‘low risk’ and what will be

90
Ibid.
91
Mosteshar, supra n. 33, at 361.
92
OSA 1986, s. 10(1A) inserted (1 Oct. 2015) by Deregulation Act 2015 (c. 20), ss 12(4), 115(7); s. I.
2015/994, Art. 11(f).
93
C. Newman, Rediscovering UK Sovereign Launch Capability, 2(16) ROOM 89 (2018).
94
Ibid., at 91; Space Industry Act 2018, s. 36(1).
95
Space Industry Act 2018, s. 36(3).
96
Newman, supra n. 93, at 91.
97
Modern Regulation to Support UK’s Growing Space Sector, https://www.gov.uk/government/news/
modern-regulation-to-support-uks-growing-space-sector, accessed 12 Oct. 2018.
 UK’S LATEST PLANS FOR SPACE ACTIVITIES 19

determinative between reduction and the waiving of the need for insurance?
Notwithstanding this, such flexibility in the imposition of license conditions is
to be welcomed for the UK space sector to thrive and expand.

5.2[b] Informed Consent & Fitness

The 2018 Act imposes a requirement upon holders of an operator license to obtain
the ‘informed consent’ of individuals taking part in spaceflight activities.98 Such
consent must be in writing.99 The use of the adjective ‘informed’ is to emphasize
that there will be criteria relating to, amongst other things, age and capacity.
Additionally, no doubt recognizing the extreme and hazardous nature of
spaceflight activities and the environment, the 2018 Act provides for regulations
to be made prescribing what – if any – training, qualifications and medical fitness is
required of individuals taking part in or engaged with spaceflight activities.100 At
the time of writing, the Regulations have not been drafted. However, the 2018
Act provides examples of the types of provisions that might be made.101 Such is the
emphasis on the safety of individuals taking part that the 2018 Act makes it an
offence to contravene this requirement.102

5.2[c] Space Debris

The abundance of and desire to mitigate against further space debris is one of the
most pressing issues for the global space community.103 To this end, it is important
to note that the 2018 Act imposes duties on the regulator to take into account ‘any
space debris mitigation guidelines issued by an international organization in which
the government of the United Kingdom is represented’ when the regulator is
exercising its functions under the 2018 Act.104 There is also scope for conditions as
to compliance with space debris mitigation guidelines to be included in licenses
granted to operators.105

98
Space Industry Act 2018, s. 17; see on this point, L. J. Smith, Taking a Stance: Managing Liability for
Commercial Space Activities, in: The Governance of Emerging Space Activities – Legal and Policy Considerations
(J. Wouters, E. Hansen & P. de Man eds, Edward Elgar Dec. 2017).
99
Space Industry Act 2018, s. 17(2).
100
Ibid., s. 18.
101
Ibid., Sch. 2.
102
Ibid., s. 18(6).
103
See generally, Joseph N. Pelton, New Solutions for the Space Debris Problem (New York: Springer 2015);
further, Swiss Re, Space Debris: On Collision Course for Insurance (2011); Swiss Re Corporate Solutions,
New Space, New Dimensions, New Challenges – How Satellite Constellations Impact Space Risk (2018).
104
Space Industry Act 2018, s. 2(2)(h).
105
Ibid., Sch. 1, para. 1(g).
20 AIR AND SPACE LAW

Whilst such steps are, in the opinion of the authors, to be welcomed, it is

submitted that this is a missed opportunity. The guidelines are not deemed an
overarching principle of paramount importance which must followed, subject to
e.g. a penalty if not complied with. The inclusion in the granting of a license is
subject to particular conditions relative to debris mitigation which are optional; in
other words, it is not mandatory that these conditions are included. Secondly, a
duty to take account of something is no more and no less than that. It would be open
to the regulator or a license holder to submit that account was taken of the debris
mitigation guidelines when coming to a decision.
There are many factors for the regulator to take into account when exercising
its functions, space debris being but one of them. However, in the event of a
conflict between these, the regulator is permitted to apply the provisions in
whatever way the regulator thinks is reasonable. In such a situation, the regulator
has broad and virtually unfettered discretion.

5.2[d] Summary and Overview of the 2018 Act

At this juncture, with the UK Government yet to release the draft regulations that are
to accompany the Act, it is difficult to conduct a full and thorough analysis of the
legislative regime. Yet, if the UK Government is serious about enabling and encoura-
ging commercial spaceflight activities within a comprehensive regulatory framework,
then it must clarify what conditions will form part of the licenses in practice; more
detail concerning the regulations is awaited in the Schedules.106 Without providing
the key players in the industry with detailed information, they will be unable to make
operational decisions about their businesses. This could have knock-on effects with
regards to investment, insurance and development of the UK space sector.

6 SPACEPORT DEVELOPMENT AND COMPETENCES OVER HIGH-

ALTITUDE SPACE FLIGHT
The 2018 Act extends to all three jurisdictions within the UK: England and Wales;
Scotland; and Northern Ireland.107 Various competences come together in licen-
sing and developing the UK’s first spaceports and activities taking place on the
ground. First and foremost, the approach taken by the UK was to ensure that the
CAA is responsible for all activities given the initial requirements for security over
airspace and within range of the UK. The CAA is part of the Department of

106
Written evidence submitted by Fieldfisher, https://publications.parliament.uk/pa/cm201719/cmpub
lic/space/memo/sib02.htm, 01 Jan. 2018.
107
Space Industry Act 2018, s. 71(1).
 UK’S LATEST PLANS FOR SPACE ACTIVITIES 21

Transport – a UK government ministerial department. At the same time, by reason

of general delegated competences at Scottish government level, the main bodies
responsible for coordinating and connecting the respective space clusters in
Scotland are the Space Network Scotland108 and the Scottish Centre of
Excellence for Satellite Applications.109 The UKSA describes itself as responsible
for all strategic decisions on the UK civil space programme, providing a clear single
voice for UK space ambitions. It is technically an executive agency, belonging to
the Department for Business, Energy and Industrial Strategy.
As noted supra, there are separate licenses for the operators of spaceflight
activities and those who will operate spaceports. In one of the few mandatory
provisions in the 2018 Act, a spaceport license must not be granted unless the
regulator is satisfied that all reasonable steps have been taken to ensure risk to the
public is as low as possible.110 Furthermore, the spaceport operator must have
submitted an environmental impact assessment alongside the application.111 The
regulator must consider the impact prior to granting the license and can issue
guidance or impose conditions.112

7 PROCUREMENT
The principles of public procurement law for high volume contracts derive from
the Government Procurement Agreement (GPA)113 applicable under WTO law,
as well as the trias of EU Public Procurement Directives passed in 2014. Public
procurement for the aerospace sector – with the exception of military needs – is
still dominated by the UK rules transposing the EU Directive on Public
Procurement 2014.114 That Directive has since been transposed into the Public
Contract Regulations 2015 (PCR 2015). Despite Brexit, these rules will continue
to apply insofar as the UK does not choose to replace their provisions with new
legislation.
The PCR 2015 cover all rules relating to services supply or work contracts
entered into by public bodies. With this, the tender for the development of the

108
A Scottish Enterprise project; Scottish Enterprise is a non-departmental public body of the Scottish
Government.
109
http://www.sacatapultcoe.org/centre/scottish, accessed 15 Oct. 2018.
110
Space Industry Act 2018, s. 10(a).
111
Ibid., s. 11(2).
112
Ibid., ss 11(5) and (6); s. 13.
113
Access to European procurement markets, partly by reason of the GPA and the EEA agreement, mean
that operators from Norway, Iceland and Liechtenstein are also eligible for inclusion within a UK
public procurement.
114
Three sectoral European Directives were passed in 2014 on public procurement, of which Directive
2014/24/EU governs the general non-energy sector procurement rules, OJ L 94/2014, 28 Mar. 2014,
at 65–242.
22 AIR AND SPACE LAW

Spaceport will fall within these regulations, as they apply to Scotland and are
managed by the UK government, in conjunction with local government in
Northern Ireland and local Scottish government. It should be noted that the
planning aspects of construction fall within the remit of the local authorities.
Under the Public Services (Social Value) Act 2012, public authorities have a
statutory duty to have regard to economic, social and environmental wellbeing in
connection with public service contracts. This will be of relevance to later devel-
opment of the port insofar as services are intended.
The UK Government is also enabled by the infrastructure (Financial
Assistance Act 2012) to provide financial assistance in support of infrastructure
investment, thereby supporting major infrastructure projects which have struggled
to access private finance because of adverse credit conditions.
The public entities referred to by PCR are state regional and local authorities as
well as broad categories of other bodies governed by public law which are variously
defined as companies financed wholly or mainly by another contracting authority.
Private entities can also be subject to the regulations if they are funded or are
for the most part controlled by a contracting authority and are fulfilling a non-
commercial purpose. The other circumstances in which a private entity can be
subject to the regulations is where a public authority awarding a subsidy is obliged
to require the subsidized body to comply with the PCR 2015, as if it were a public
authority.
A procurement can only be any one of works, supplies or services. Works
contracts are those carried out in connection with executional realizing work such
as general building or civil engineering. The thresholds applicable to each category
dictate whether or not the procurement rules are applicable. These apply to
contracts with a value of over five million pounds sterling, and may already
apply to lower volume contracts dependent on the sector and scope.115
Contract notices are required to be published in the Official Journal of the EU
via prior information notices (PINs). Currently, the UK is required to provide
access to public contract opportunities to suppliers established in another EU
Member State or from a country which is signatory to the WTO GPA or any
other relevant international agreement by which the UK is bound.

8 BREXIT
It is axiomatic that the impact of the UK resigning its membership of the EU will
have a profound impact on the country. The UK Government has stated its

115
See the overview of thresholds under the EU Directives, at https://ec.europa.eu/growth/single-
market/public-procurement/rules-implementation/thresholds_en, accessed 15 Oct. 2018.
 UK’S LATEST PLANS FOR SPACE ACTIVITIES 23

preference to leave both the Single Market and the Customs Union.116 If, as seems
ever-likely, this comes to fruition, this will have serious consequences for UK
industry. It is beyond the scope of this article to discuss all of the myriad
consequences should this happen.117 However, the following will briefly comment
on the ramifications of this UK Government policy with regards to the UK space
sector and the UK’s stated ambition to become a major global space player.
In the first instance, it is important to stress that the UK is leaving the
European Union but it will remain a member of ESA. As an autonomous body,
ESA is not a part of the EU. There are twenty-two members states of ESA, not all
of which are EU members. Moreover, the EU has twenty-eight members (for
now), not all of which are members of ESA. Norway and Switzerland are members
of ESA but not of the EU, with trade arrangements operating through the separate
European Economic Area (EEA). Canada and Japan have special association
agreements with ESA but are not formally members. Therefore, it is submitted
that the UK’s position is not to boldly go where none have gone before and that
Brexit should not directly impact upon the UK’s membership of ESA.
However, although ESA is separate from the EU, there is both significant
involvement and investment by the EU with ESA projects, prime examples being
the Galileo and Copernicus projects. It is apparent that the UK’s continuing
involvement with the Galileo project may be severely impacted by a so-called
‘hard’ Brexit subject to any agreement for the UK to continue to play a part in
these projects.118
Mindful that the UK is leaving the European Union on 29 March 2019,119
the UK Government designed the 2018 Act, ‘not only to enable compliance
with any international and/or EU rules as they currently stand’ but also to
‘provide flexibility for compliance in the future.’120 Indeed, the provisions in

116
This is contained in the Sept. government paper known as the Chequers Agreement, see e.g. https://
www.theguardian.com/politics/2018/apr/23/downing-street-rules-out-u-turn-on-customs-union-
pledge, accessed 20 Sept. 2018.
117
The question of which institutions of the UK should exercise the legislative powers currently held by
EU institutions upon the UK’s withdrawal is already a matter of some contention - see The UK
Withdrawal from the European Union (Legal Continuity) (Scotland) Bill - A Reference by the Attorney General
and the Advocate General for Scotland (2018) UKSC 64, available at https://www.supremecourt.uk/
cases/docs/uksc-2018-0080-judgment.pdf, accessed 13 Dec. 2018.
118
Supra n. 4.
119
The European Union (Withdrawal) Act 2018 is available http://www.legislation.gov.uk/ukpga/
2018/16/contents/enacted, accessed 15 Oct. 2018; Notwithstanding this, the UK retains the
option to unilaterally revoke its notification of intention to withdraw given under Article 50
Treaty on European Union - see Case C-621/18 Wightman and others v Secretary of State for
Exiting the European Union available at http://curia.europa.eu/juris/document/document.jsf?
text=&docid=208636&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=257
5635, accessed 10 Dec. 2018.
120
House of Commons, Briefing Paper Number CBP 8197, supra n. 47, at 7.
24 AIR AND SPACE LAW

the legislation have specifically been described as attempting to ‘future-proof ’

against Brexit.121
Notwithstanding the observations indicated supra with regards to constitu-
tional concerns and the delegated powers to make secondary legislation, this
flexibility is to be welcomed because it will allow for the regulations to adapt to
suit the rapid change associated with exponential technologies. In fact, the
present authors go as far as to say that this in-built flexibility could be one of
the 2018 Act’s greatest strengths because of the relative speed at which the
regulations could be adapted in contrast to the timescale for amendments to
primary legislation being enacted. However, even with the best of intentions, a
‘hard’ Brexit will have consequences for the advancement of the UK’s space
sector.
There would be considerable trade implications for the free movement of
goods both into and out of the UK. This could lead to significant difficulty for
companies to obtain and supply the necessary parts. Particularly where they are part
of a supply chain.
With respect to the staff, working in the UK space sector, Brexit also poses
difficulties. The UK space industry employs an exceptionally skilled labour force:
as measured by the ‘share of employees holding a higher degree, first degree or
Higher National Certificates (HNC)/Higher National Diplomas (HND) and
equivalent qualifications’; the average qualification level of space industry employ-
ees is higher than any sector covered by Office of National Statistics Census data
for England and Wales.122 However, attracting a high calibre of candidate will be
more difficult if the EU right to free movement of people is restricted or even
impinged upon, by the outcome of the Brexit negotiations. This is something that
is very difficult to predict but something which the UK Government would do
well to be alert to and take steps to mitigate against during any negotiations
concerning future immigration policy.

9 CONCLUSIONS
The UK is not the only country to have recently enacted or considered national
space law legislation.123 As mentioned supra, Japan’s new space legislation comes
into force in November 2018 and New Zealand’s Outer Space and High Altitude

121
UK Space Industry Act to Future-_Proof Against Brexit, Space News (10 Apr. 2018), https://spacenews.
com/u-k-space-industry-act-to-future-proof-against-brexit/, accessed 20 Sept. 2018.
122
UK Space Agency, supra n. 11, at 9.
123
Following a review of their domestic legislation, the Australian Government introduced the Space
Activities Amendment (Launches and Returns) Bill 2018 into the Australian Parliament; India has also
introduced a draft Space Activities Bill 2017; and Portugal has also published draft space legislation.
 UK’S LATEST PLANS FOR SPACE ACTIVITIES 25

Activities Act received Royal Assent on 10 July 2017. Outwith the national
legislative sphere, a Draft Bill was also introduced into the Californian State
Legislature relating to the exclusion of corporate income taxes to space activities.
It is illustrative to briefly compare elements of foreign legislation to the Space
Industry Act 2018.
It has been said that one of the strengths of the New Zealand legislation is its
clarity with regards to applicability.124 Indeed, de Zwart and Lisk submit that part
of the beauty of the New Zealand Act is the decision to include clear activity-
based titles in addition to information as to geographical applicability.125 For
example, the New Zealand legislation makes a clear distinction between the
obligations imposed upon payload owners and those conducting launch activities.
The value of this is that it allows commercial enterprises to clearly understand
which licenses are required in which circumstances.126 In contrast, whilst the
Space Industry Act 2018 permits the legislature to include particular conditions
(as yet undefined) in relation to payloads in licenses,127 the Act does not afford an
operator the opportunity of applying for one of two distinct types of license when
conducting spaceflight activities.
The Space Industry Act 2018 does not impose mandatory requirements in
relation to space debris mitigation upon operators. Similarly, environmental pro-
tection instruments in relation to outer space are ‘completely foreign’ to the
Australian Space Activities Act 1998.128 However, debris mitigation has been a
component of each individual iteration of the New Zealand regime since its
inception.129 Following analysis at the Committee stage in New Zealand, debris
mitigation shifted from a discretionary regulation term to primary legislative
threshold for Minister satisfaction.130 In addition to this forward-thinking step,
the New Zealand legislation provides for the option of further ability to impose
discretionary terms related to minimizing ‘the risk of contamination of outer space
or adverse changes in the earth’s environment.’131 In the authors’ opinion, such an
approach is to be welcomed if states are serious about maintaining and protecting
the viability of the outer space environment.
The 2018 Act continues to impose a requirement upon operators to indem-
nify the UK government for liability to third parties. Attempts to secure a

124
de Zwart & Lisk, supra n. 49.
125
Ibid., at 4.
126
Outer Space and High-altitude Activities Act 2017, ss 7 & 15.
127
Space Industry Act 2018, Sch. 1, para. 1.
128
de Zwart & Lisk, supra n. 49, at 7.
129
Ibid.
130
Ibid.
131
Outer Space and High-altitude Activities Act 2017, ss 10(1)(i)(v), 18(1)(f)(v), 26(1)(d)(v), 34(1)(e)(v);
de Zwart & Lisk, supra n. 49, at 8.
26 AIR AND SPACE LAW

mandatory cap on this liability were unsuccessful, albeit a cap may nevertheless be
introduced, and the ‘sliding scale’ was recently announced by the UKSA.
Commercial operators will study these with interest when the UK government
releases its draft regulations relating to the 2018 Act. The commercial viability of
many projects may be determined by whether there is a liability cap. In an ever-
expanding market with more and more states offering launch capabilities, it is
submitted that a cap is essential if the UK wants to remain competitive or at least,
that the ‘sliding scale’ strikes the right balance of liability for licensees.
This article has also examined the UK’s approach to the types of spaceflight
activities covered by the 2018 Act. In agreement with other commentators, the
authors submit that the definition of the term ‘suborbital’, as defined in the 2018
Act, is far from satisfactory; and is likely to lead to confusion for operators which
carry out business internationally, because it is inconsistent with the definition in
foreign jurisdictions. Defining the term by reference to the height achieved is
undesirable and it is submitted that the better nomenclature is ‘high-altitude
activity’ as used in the New Zealand legislation.
The UK’s post Brexit position in respect of international involvement in the
space sector has been considered. It is submitted that the UK’s membership of ESA
will not be threatened by Brexit, given that other non-EU countries maintain their
membership. However, if the EU continues in its current vein to advance its plans
for extension of the European Union space agency132 and expressing a desire for
further direct involvement with ESA projects and the budgetary contributions
towards these projects, the UK’s continued involvement and participation may be
called into question.
While the UK’s provisions on public procurement tally with those elsewhere
in Europe and certainly under the GPA, the exact level of participation by the
international commercial space sector will undoubtedly stand and fall with the
specific details of the licensing regime, and particularly the provisions relating to
the level of liability insurance required.

132
Proposal for a Regulation of the European Parliament and of the Council establishing the space
programme of the Union and the European Union Agency for the Space Programme and repealing
Regulations (EU) No 912/2010, EU No 1285/2013, (EU) No 377/2014 and Decision 541/2014/
EU, COM(2018) 447 final of 6 June 2018 Since giving notice to leave the EU, the UK has been
excluded from all forward procurements relating to the development of Galileo.