A UK spaceport has been on the horizon for a few years now and there are number of different sites scattered throughout the UK that have been positioning themselves as the most viable candidate. Initially there was going to be a winner chosen that would be the official UK spaceport but the government tweaked things so now they are creating an encouraging environment and letting the ‘market’ pick the winner (so the UK could wind up with two or three spaceports although that seems unlikely.) Recently the UK government has announced not only further support for the development of spaceports and the launch services to operate from them but it has unveiled a draft bill, Spaceflight Act 2017,[1] to provide a regulatory framework for these facilities and activities.
I was initially sceptical of the government’s proposal for a UK spaceport; the British government does not have the best track record with space (see Black Arrow and HOTOL) or large infrastructure projects (West Yorkshire rail electrification…) but the level of government support for spaceports and commercial spaceflight is certainly impressive and reassuring. Time will, of course, tell whether anything actually comes of it (after all Spaceport America has hardly proved to be a smashing success…) however for the time being things look promising.
The UK government actually made two announcements concerning the ‘spaceport project’ this month. They first announced £10 million for the incentivization of commercial spaceflight projects at the beginning of the month. And then amid much fanfare last week they published the draft bill, the Spaceflight Act 2017. The bill is fairly long (especially in comparison with the Outer Space Act 1986[2]) and it is clear that much will still need to be developed by secondary legislation. There are also some interesting points contained within the bill which will be discussed below.
The first is in section 1(3)(a) of the Spaceflight Act 2017, which specifies that it applies to “a rocket or other craft that is capable of operating above the stratosphere”. The stratosphere ends at approximately 50km[3] which is half the distance to the von Karman line, the commonly regarded but legally meaningless ‘air/space boundary’. This is, odd, as most states (with the notable exception of Australia which in its Space Activities Act 1998[4] defines space as beginning at 100km) avoid or even oppose defining and delimitating a boundary between air space (which is subject to national sovereignty) and outer space (which is not). Section 1(3)(a) doesn’t stipulate this as its intention of course, but it isn’t a stretch to interpret it as doing so.
The second is the concept of ‘informed consent’ found in section 15 of the Spaceflight Act 2017. This has undoubtedly been borrowed from US law although US federal law doesn’t utilize the term. It does provide for the waving of liability by ‘spaceflight participants’[5] which is what section 15 of the Spaceflight Act 2017 is also doing. What exactly constitutes ‘informed consent’ will have to be developed and elaborated upon. Although, it seems generally agreed that it means that an explanation of the risks involved are “specific, obvious, and direct, unambiguous, easy to understand, simple and complete.” Furthermore, they will “have to be in clear understandable wording that any ‘average’ person, (the ‘reasonably prudent person’) can understand.”[6] However whether the highly technical nature of spaceflight, particularly in these early, experimental phases, can be distilled in a way the average layperson can truly understand is a question worth asking, especially since the first spaceflight participants are likely to be enthusiasts who may be so eager to ‘go to space’ that they are willing to ignore whatever risks may be involved. There is also the risk that the facilitators of the spaceflights may downplay the risks involved. It is also important to note that a wavier cannot waive liability in the event of negligence[7] (trying to work out what constitutes reasonable measures in what is still, and will remain for some time, experimental spaceflight could prove interesting work).
There is another potential issue that was raised by Sa’id Mosteshar of the London Institute of Space Policy and Law, he pointed out that in order to provide sufficient information to satisfy the ‘informed consent’ criteria the information provided to the spaceflight participant could constitute an export under the US International Traffic in Arms Regulations (ITAR) if the vehicle(s), spacecraft systems and/or associated equipment is operated or manufactured by a US firm or even if the spacecraft contains some US technology regulated by ITAR. If this was to be the case, there would be restrictions on what information could be provided to a foreign national even when the informing is being conducted in the UK.[8] Of course, it remains to be seen what exactly will be required under section 15 of the Spaceflight Act 2017, assuming it does indeed become law.
It is also interesting to note that the UK is deviating from the approach the European Aviation Safety Administration has taken thus far in considering the question of suborbital flight regulation. EASA “considers the vehicles to be used for suborbital flights ‘aircraft’, since they are winged and use the upward lift of the air…”[9] The Spaceflight Act groups suborbital flights, including high altitude balloons when used for “the purpose of spaceflight activities” under the definition of spacecraft.[10] I’m sure this has nothing to do with Brexit…
It is important to stress that this is a draft bill that has not even been introduced into Parliament yet. It is currently subject to consultation and therefore will undoubtedly change even before it reaches the floor of the House of Commons. It is encouraging to see the government taking space so seriously and enthusiastically, there has been a lot of optimism in the UK space sector over the past few years and hopefully this will encourage continued optimism. The UK Space Conference in May of this year should hopefully shed some more light on this ‘spaceport project’ if we don’t learn anything more before then.
[1]Department for Transport, Department for Business, Energy and Industrial Strategy (2017) Draft Spaceflight Bill (Cm 9421) https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/592928/draft-space-flight-bill-web.pdf (hereinafter Spaceflight Act 2017)
[6]Tracey Knutson (2007) ‘What is ‘Informed Consent’ for Space-Flight Participants in the Soon-To-Launch Space Tourism Industry’ 33 Journal of Space Law 105, 118
[7]Unfair Contract Terms Act 1977, section 2
[8]Sa’id Mosteshar (2011) ‘An Academic Perspective on Commercial Spaceflight: Liability and Waivers’ Presented at ECSL Practitioners Forum, 18 March 2011, available at: http://www.space-institute.org/app/uploads/1399882859_Academic_Perspective_-_ver3.pdf
[9]Frans G. von der Dunk (2011) ‘Space Tourism, Private Spaceflight and the Law: Key Aspects’ 27 Space Policy 146, 149
[10]Spaceflight Act 2017, section 1(3)