The Space Law Review: United Kingdom
Introduction to the national legal, regulatory and policy framework
i The UK's space programme
The UK's original space programme commenced in 1952, with a mission launched 10 years later, making the UK the third nation in space. It remains a leader in space, particularly as a thought leader in regulation.
In 2010, the industry, government and academia collaborated to create the Space Innovation and Growth Strategy (IGS). As a result of the IGS, the UK Space Agency was created, a National Space Policy was published and several regulatory changes were implemented. A space cluster was also established in Harwell, south Oxfordshire, leading to the creation of the Satellite Applications Catapult and the European Space Agency's European Centre for Space Applications and Telecommunications.
The space sector remains a key growth area for industry, academia and the government, with the ambition to gain 10 per cent of the global space business by 2030.
One of the goals of the UK government is to ensure that it continues to have a globally competitive and progressive regulatory regime.
ii Legal framework
The UK was one of the early pioneers to adopt national space legislation to regulate the space operational activities of non-governmental (private commercial) entities in 1986 following Norway, Sweden and the United States. The UK is also one of the founding Member States of the European Space Agency having ratified the Convention for the establishment of a European Space Agency2 on 28 March 1978. The UK has ratified the four core United Nations (UN) space treaties.3 It has not, however, signed or ratified the Moon Agreement 1979.
History of the UK government's space policy
In the early 1980s, the government instructed the Space Division of the Department of Trade and Industry to establish an ad hoc committee to assess how UK space activities should be organised and make recommendations.4 In 1985, this committee became the British National Space Centre (BNSC), which was the government agency responsible for coordinating space policy. The UK Space Agency (UKSA) was established on 1 April 2010 to replace the BNSC.
Outer Space Act 1986
The Outer Space Act 1986 (OSA) is the current basis for the regulation of activities carried out in outer space by organisations or individuals established in the UK, in its Crown dependencies and certain overseas territories.5
Licence applicants from one of the UK's overseas territories to which the OSA has been extended6 will need to apply to their own Governor's office for an OSA licence. Applicants from one of the UK's overseas territories to which the OSA has not been extended are to approach the government of the overseas territory, which would then liaise with the Foreign Commonwealth Office and the UKSA over whether it would be appropriate to extend the OSA to that territory.
The OSA sets out the requirement for a space activity licence7 for:
- launching or procuring the launch of a space object;
- operating a space object; or
- carrying out any other activity in outer space.
It is an offence for a person to carry out a licensable activity without a valid licence.8
The OSA confers powers on the Secretary of State to grant outer space launch and operations licences subject to such conditions as he or she considers fit.9 These powers are delegated to the UKSA, which is an executive agency that is sponsored by and reports to the Department for Business, Energy and Industrial Strategy (BEIS).
Space Industry Act 2018
The Space Industry Act 2018 (SIA) received royal assent in 2018 and is likely to come into force in 2021. The SIA will govern all activities carried out in or from the UK. The OSA will, however, still apply to launches or other activities carried out by UK nationals outside the UK.
On 29 July 2020, the UK government published the public consultation on the draft secondary legislation and accompanying documents (the Consultation) for the implementation of the SIA. The Consultation sets out the UK's proposed licensing procedures and requirements to carry out the following activities in or from the UK and how ongoing compliance will be monitored and assessed:
- launch (space or suborbital);
- re-entry of space objects;
- the operation of a satellite in orbit from the UK;
- the operation of a spaceport; and
- the provision of range control services.
At the date of finalising this chapter, the draft secondary legislative regulations (the Draft Regulations) that have been published include:
- the Space Industry Regulations 2020;
- the Spaceflight Activities (Investigation of Spaceflight Accidents) Regulations 2020; and
- the Space Industry (Appeals) Regulations 2020.
A further consultation is to be published in the last quarter of 2020 to seek views on the proposed approach relating to insurance and liabilities and the charging scheme for the regulator's performance of functions. There will be a further consultation in early 2021 on environmental objectives.
Under the Draft Regulations, the default regulator role for licensing and ensuring the compliance of spaceflight and associated activities regulated under the SIA is to be transferred from the UKSA to the Civil Aviation Authority (CAA). It is also the UK government's intention to delegate the regulation of in-orbit activities under the OSA to the CAA.
Regulation in practice
i OSA licence requirements
The OSA currently governs space activities carried out by UK nationals in, and from, the UK or elsewhere.
The licence requirements and procedures are currently set out at a high level in the OSA and in more detail in the Guidance for Licence Applicants issued by the UKSA (Guidance). The process is well established, and approximately 10 licences have been granted annually in recent years until a few years ago when the advent of large communications and Earth observation constellations have much increased this figure. The UKSA outsources certain parts of the overall assessment to the private sector (in particular the technical assessment and the insurance check). This approach is largely owing to the limited size of the UKSA and the frequency of licence applications.
Satellite manufacturers are not required to obtain a licence when delivering a satellite at a launch site but the in-orbit delivery of a satellite generally requires a licence.
Satellite operators are explicitly required to obtain a licence for the procurement of a launch (including the entity that is ultimately commissioning and paying for launch), even if the respective entity is not subsequently conducting the in-orbit operations of the space object.
Satellite operators are required to obtain a licence not because they own a satellite but because they have the operational control over a satellite. The emphasis is on the entity that has the ultimate authority over the in-orbit operation, from a decision-making standpoint irrespective of the location of the mission control centre or telemetry, tracking and control stations. The key criterion is the 'direct and effective' control over the satellite.
In relation to the territorial scope of an application, the main criterion is the domicile of an operator in the UK (the presence of a UK company is sufficient rather than UK headquarters).
Licence application administration (fees and timescale)
Licences are granted by the UKSA to cover:
- the launch phase only;
- the in-orbit operation for the full lifetime of a satellite; or
- both the launch phase and the in-orbit operation.
Licences are granted by the UKSA for individual satellites.
The application fee for a licence for launch or an in-orbit satellite operation is £6,500 per licence. This is a one-off fee, which covers the full-satellite operational lifetime. It is waived if the applicant is an educational institution or if the satellite is for scientific research. As mentioned in Section I.ii, a consultation is to be published by the UK government in the second half of 2020 in relation to the licence fees.
The Guidance recommends that licence applications are submitted at least six months in advance of any plans for launch or operation. The OSA does not, however, set out a legal obligation for the UKSA to complete an assessment of a licence application within a certain period of time.
In practice, the assessment process is completed, on average, in six months. The duration of the licensing process is typically three to nine months.
Conditions of a licence
The UKSA requires an applicant to provide information on its commercial and financial status to ensure that it has adequate financial resources to undertake its intended licensed activities, fulfil its licence obligations, cover the relevant insurance premia and be able to indemnify (in full or in part as per the OSA) the UK government should international liability under UN space treaties arise.
However, there are no specific criteria that need to be demonstrated to satisfy the requirement as to financial status. Two years of certified accounts are generally required by the UKSA to evidence the applicant's financial standing. Accounts information for parent companies may be required if the applicant is a subsidiary. In practice, the UKSA often requires a parent company guarantee to be provided by a parent company of the applicant to guarantee the applicant's financial and performance obligations under the licence.10 In some instances, a request for funds to be placed in a trust account may also be required by the UKSA as a licensing condition.
The grant of a licence is contingent on the UK government being entitled to:
- inspect the launch facilities;
- examine the equipment being used in the launch, including the launch vehicle;
- obtain all necessary information pertaining to the date and location of the launch and the basic parameters of the intended orbit of the space object;
- access documents relevant to the launch;
- obtain assurance of adequate environmental protection and that there will be no interference with the activities of other states;
- obtain assurance that the breach of UK international obligations will be avoided;
- obtain assurance as to the adequate protection of UK national security; and
- obtain assurance that sufficient insurance cover has been taken out.
Spectrum filing requirements
The national administration representing the UK before the International Telecommunication Union (ITU) is the Office of Communications (Ofcom) by direction of the Secretary of State for Digital, Culture, Media and Sport under Section 22 of the Communications Act 2003. Ofcom carries out the assignment of orbital positions and frequencies through its filing obligations in accordance with the Procedures for the Management of Satellite Filings 2019.11
Applicants for a UKSA licence are required to evidence that they have access to spectrum and that the requirements of the ITU are satisfied concerning orbital positions, as applicable, and frequency assignments. The UKSA will check as to whether orbital positions and frequencies have been assigned to the applicant or are in the process of coordination.
Registration of space objects
On the launch of a space object, the UKSA will provide the licensee with a registration questionnaire to complete, based on the requirements of Article IV of the Registration Convention. The UKSA will then submit this information to the UN on receipt from the licensee.
The UKSA maintains two registries:
- the registry of space objects where the UK is the 'launching State' under the Registration Convention and Article VII of the Outer Space Treaty;12 and
- the supplementary registry of space objects13 where:
- licences have been issued but where the UK is not the launching state for that space object (e.g., following the transfer of a space object to a UK entity by a non-UK entity); or
- it was jointly determined that another launching state should register the relevant space object (e.g., where the UK authorises the launch only and another state registers the satellite that is operated by a non-UK non-governmental entity).
The UK registries contain information as required under the Registration Convention, and additional information, such as the name of the owner or operator and the date of disposal or decay of the space object.
Indemnity, liability and insurance coverage requirements
Before the Deregulation Act 2015 came into force, Section 10 of the OSA required licensees to provide an unlimited indemnity to the UK government for damage or loss arising out of activities carried on by a space object under the licensee's control. The Deregulation Act 2015 placed a limit on the liability of licensees under Section 10(1A) of the OSA. After the implementation of the Deregulation Act 2015, a licensee must indemnify the UK government against any claims brought against it in respect of damage or loss caused by the licensed space activities up to the limit on its liability that is specified in their licence.
The standard insurance requirement of the UKSA is that licensees must take out third-party liability (TPL) insurance cover against liabilities arising from each licensed activity (i.e., the launch and in-orbit phases of a mission). It is a requirement that the UK government is named on the insurance policy as an additional insured. For standard missions,14 the TPL insurance requirement is €60 million.
The UKSA introduced changes to the in-orbit TPL insurance requirement on 1 October 2018 so that where an operator has more than one standard satellite mission, the UKSA may use its discretion to allow all of the operator's standard-mission satellites to be covered under a single 'any one occurrence' TPL insurance policy. The UKSA has further discretion to offer the operator the option to add an aggregate limit (at such level as the UKSA determines to be appropriate) to the operator's per-occurrence TPL policy after a certain number of satellites have been launched by the same operator. The operator's indemnity to the UK government will continue to apply in respect of each licence set at €60 million per licence (with each satellite licensed individually).15
The UKSA also has the discretion to waive the TPL insurance requirement for low-risk small satellite missions launched to an operational altitude below that of the International Space Station (ISS) although the operator's indemnity limit will remain €60 million per licence (with each satellite licensed individually).
The UKSA defines higher-risk missions16 as licensable missions that:
- are novel in nature or scale;
- use techniques, technologies or systems that are unproven;
- present a higher risk of high-value TPL claims; or
- present third-party risks that are not well-characterised.
With regard to the above, the UKSA may require a higher per-occurrence or a higher aggregate TPL limit, depending on the risks of each mission. These requirements will be considered on a case-by-case basis, and are set following an appropriate risk assessment.
The factors that will be considered by the UKSA during the risk assessment include the:
- heritage and reliability of the technology;
- orbital parameters;
- contingency plans and redundancy of the planned mission;
- manoeuvrability of the satellite and the capacity for it to be tracked;
- estimated value of satellites in nearby orbits;
- orbit-raising and de-orbiting plans, including the value of satellites that may be encountered during the procedures;
- operational practices followed by the operator; and
- performance of similar space systems on orbit.
Mandatory space debris measures
The Guidance sets out the list of the standards that comprise the criteria by which licence applications are assessed. This includes various international space systems' standards defined by the International Organization for Standardization, international guidelines related to space debris mitigation defined by the Inter-Agency Debris Coordination Committee as well as safety standards defined at European level by the European Cooperation for Space Standardisation.
Despite the Guidance requiring applicants to describe any design feature of the spacecraft in terms of impact protection from debris or micrometeoroids, this is not to be interpreted as a licence condition for satellites to be designed with space debris shields or to have any other impact protection measures. This information is requested as part of the licensing process for information only, rather than to establish a specific requirement for operators, which would be beyond the international debris mitigation measures.
Safety and national security requirements
The UKSA must be satisfied that the intended operations will not jeopardise public health, safety of persons or property and will assess this based on:
- system design, functionality and performance;
- system qualification, track records and reliability; and
- mission risk assessment, including safety plans and procedures, safety requirements and constraints.
The UKSA will also assess whether the proposed activities will compromise national security or the UK's ability to carry out its obligations under international treaties and agreements.
Therefore, the UKSA will only issue a licence on behalf of the Secretary of State for BEIS if public health and the safety of people and property are reasonably protected, the UK's international obligations under the international treaties are adequately protected and UK national security is not impaired.
Monitoring and enforcement requirements
The UKSA has no statutory audit right under the OSA. However, a standard licence contains conditions permitting the inspection of the licensee's facilities, and the inspection and testing of the licensee's equipment,17 as well as access to documents and records18 in the possession or custody of the licensee that relate to the satellite or the licensed activities.19 A licence is also likely to contain conditions requiring information and updates to be provided to the UKSA by the licensee.
In practice, the UKSA does not carry out formal audits after the licence is granted and instead relies on the obligation of the licensee to notify any changes that may occur over time compared to the licence conditions. The UKSA may also make requests to licensees to confirm that the specific licence information is still valid, such as information in relation to satellite ownership, operational control and TPL insurance cover.20
ii Transfer of a licence
The UK government requires prior authorisation for both the transfer of ownership and the transfer of the operational control of a satellite. The transfer of a licence is permitted at the discretion of the Secretary of State for BEIS.
The in-orbit transfer of a satellite from a licensed operator to another operator within the UK usually requires the receiving operator to apply for a licence.21
The OSA permits the UK government to enter into agreements with other states under which the UK may cede its jurisdiction over an activity to another state, as long as the UK's obligations under the international space law treaties are fulfilled.
There have been several examples already of space objects being transferred to commercial entities in the UK from entities or international organisations in other states and being added to the UK national space registry. There are also examples of the transfer of a space object from the UK, for example on the sale of a space object, to an entity in another state. In both cases, the transfer has been at an international level through the agreement of states, or the UK and an international inter-governmental institution.
iii Breach of a licence
Under Section 12(1) of the OSA, fines may apply if a person:
- launches or operates a satellite without a licence;
- knowingly or recklessly makes a statement that is false in a document for the purpose of obtaining a licence;
- fails to comply with the conditions of a licence;
- fails to comply with a direction given by the Secretary of State for BEIS;
- intentionally obstructs the exercise of powers conferred under a warrant issued under the OSA or any related regulations; or
- fails to comply with any prescribed regulations.
The amount of a fine is not defined in the OSA and is not limited on indictment, but is limited to the statutory maximum.22
Distinctive characteristics of the national framework
The UK was one of the initial states to adopt national space legislation to regulate the space operational activities of private commercial entities.
The UKSA is one of the first regulators globally to assess the licensing conditions for and grant licences to constellation operators, in-orbit service providers and, shortly, to small launch providers.
Together with the CAA, which will assume the role of the default regulator for the OSA and the SIA, the UKSA and the UK government more generally seek to remain a thought leader in space law and regulation with the implementation of the SIA and its secondary legislation, which offer many tools to achieve the desired outcomes. A summary of the SIA is provided in Section IV.i.
The UK government takes an outcomes-based approach to regulation, rather than a prescriptive approach. It often encourages applicants to develop their own solutions to achieve the regulatory outcomes necessary.
Unlike many regulators, the current insurance requirements under the OSA are policy-based rather than prescribed in regulation. This allows quicker adaptation to government requirements as necessary.
The UK government is also looking to adopt a similar approach to the US's maximum probable loss methodology in relation to assessing the limit on liability for launch-related activities, which is likely to incentivise the relevant licensees to minimise the risks associated with their launch-related activities and provide certainty and clarity, which will assist insurers, investors and management teams alike. This is explored in Section IV.i.
The SIA regulates space activities, suborbital activities and associated activities carried out in the UK23 through the following categories of licences:
- launch operator;
- return operator;
- orbital operator;
- spaceport; and
- range control.
Under the SIA, a single entity will be able to apply for more than one licence. For instance, a spaceport operator will be able to apply for both a spaceport licence and a range control licence.
Spaceflight operator licence
The Draft Regulations use the term 'spaceflight operator licence' to refer to both a launch operator licence and a return operator licence.
A launch operator licence will be required to launch a launch vehicle or a carrier aircraft carrying a launch vehicle from the UK. A return operator licence will be applicable to a non-UK licensed launch operator seeking to re-enter a launch vehicle from orbit and land in the territory of the UK or have the launch vehicle recovered to the UK from UK territorial waters.
Orbital operator licence
Once the SIA comes into force, an OSA licence will be needed by UK entities operating a satellite from overseas, whereas a SIA orbital operator licence will be required by UK or foreign entities operating a satellite from the UK.
A spaceport licence will be required for the operation of a spaceport, which is defined as 'a site from which spacecraft or carrier aircraft are launched or (as the case may be) are to be launched'24 or 'a site at which controlled and planned landings of spacecraft take place or (as the case may be) are to take place'.25 This includes both horizontal and vertical launches.
The scope of activities covered by a spaceport licence also includes ground operations, such as the provision of a safe ground environment for launch activities and keeping the public in the vicinity of the spaceport safe from risks associated with pre- and post-launch activities. These activities include storing, transporting or the loading and unloading of propellants and engine testing on-site.
Range control licence
A range control licence will be required to permit the provision of range control services for operations authorised under spaceflight operator licences from a designated site defined in the range control licence, such as tracking, surveillance and boundary control.26
Identifying and securing the 'range' and hazard areas are fundamental to the carrying out of spaceflight activities safely and securely. Spaceport operators and spaceflight operators will be required to work closely with the range control service provider to ensure that the operation of the spaceport and the provision of spaceflight services align with the range requirements prescribed in the SIA and the Draft Regulations.
Liability and indemnity under the SIA
In relation to liability limits and indemnities under the SIA, Section 36 of the SIA removes the limit of liability provided in the Deregulation Act 2015. Section 36(1) of the SIA states that:27
(1) A person carrying out spaceflight activities must indemnify –
(a) Her Majesty's government in the United Kingdom, or
(b) a person or body listed in subsection (2),
against any claims brought against the government, or the person or body, in respect of damage or loss arising out of or in connection with those activities.
However, this is subject to:
- Section 12(2) of the SIA, pursuant to which an operator licence may specify a limit on the amount of a licensee's liability under Section 36 in respect of activities authorised by the licence; and
- Section 4(4) of the SIA, pursuant to which regulations may provide that Section 36 does not apply to a person to the extent that the person is carrying out activities exempted by or under the regulations, or where regulations may specify the maximum amount of a person's liability.
At the date of finalising this chapter, the UK government's consultation on the insurance requirements and the limit on liability that will apply under the SIA is yet to be published.
In relation to the operation of satellites under orbital operator licences, the current cap of €60 million is likely to be grandfathered across into the new legislation and policy for standard missions, with the requirement of TPL insurance cover of the same amount.
In relation to launch operator licences, the UK government is looking to apply the concept of a 'modelled insurance requirement', which will be similar to the US's maximum probable loss approach.
The UK public voted to leave the European Union on 23 June 2016. In terms of spectrum management, the UK will no longer be subject to European Commission decisions and initiatives on the harmonisation of spectrum allocations and use across the European Union. In addition, the UK will no longer be included in the EU process for the planning of the ITU World Radio Conferences and instead will have a direct unfettered relationship with the ITU, with the UK being subject to the full Radio Regulations of the ITU.
The UK's membership of the European Defence Agency will also cease on Brexit unless the UK government negotiates an administrative arrangement that allows non-EU Member States approved by the European Council to participate in its projects and programmes. UK companies will also be excluded from EU space programmes such as Galileo and Copernicus unless a bilateral agreement, similar to those in place with Switzerland and Norway, is reached. In this regard, the UK government published its intention not to use Galileo for UK defence or critical national infrastructure, and its plan to explore alternatives by investing £92 million in an 18-month programme to design a UK global navigation satellite system.28
The UK's membership of the European Conference of Telecommunications and Postal Administrations and the European Space Agency will not be affected by Brexit as these organisations are independent of the European Union.
Outlook and conclusions
The outlook for the UK space industry is bright, and the UK industry (civil and military), academia and government are collaborating to ensure that this is the case.
The UKSA is now looking to implement thought-leading policies covering close-proximity missions (including in-orbit servicing and active debris removal) and the distribution of Earth observation data. It will also continue to assess requirements for the regulation of large constellations.
The launch of small satellites from the UK in 2021, as anticipated, will be the catalyst for additional commercial vigour within the industry, offering the UK the long-awaited ability to have sovereign launch capability.
To ensure continued success, the UK has also created a National Space Programme and established a National Space Council consisting of representatives at the highest levels of government.
We look forward to supporting the industry and government to achieve further success in the future.
1 Joanne Wheeler MBE is the managing partner and Vicky Jeong is an associate at Alden Legal Limited.
2 Convention for the establishment of a European Space Agency (CSE/CS(73)19, rev. 7).
3 These are the Outer Space Act 1967, the Rescue Agreement 1968, the Liability Convention 1972 and the Registration Convention 1975.
5 Section 2 of the OSA.
6 Cayman Islands, Gibraltar and Bermuda.
7 Section 1 of the OSA.
8 Section 12(1) of the OSA.
9 Section 4 of the OSA.
10 See also Condition 7.1.4 of the template OSA Licence available on the UKSA website.
14 See What is a 'standard mission'? at https://www.gov.uk/guidance/apply-for-a-license-under-the-outer-space-act-1986#standard-mission.
15 See In-orbit insurance at https://www.gov.uk/guidance/apply-for-a-license-under-the-outer-space-act-1986.
16 See What is a 'higher-risk mission'? at https://www.gov.uk/guidance/apply-for-a-license-under-the-outer-space-act-1986#higher-risk.
17 Section 5(2)(a) of the OSA.
18 Section 5(2)(c) of the OSA.
19 Section 5.3 of the OSA space activity licence template provided by the UKSA on its website, accessible at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/744342/Example_of_an_Outer_Space_Act_License_Updated_September_2018__002_.pdf.
20 Under Section 6.7 of the OSA Licence Template, the licensee is required to immediately notify the Secretary of State 'of any event or other occurrence which is likely to give rise to a claim under the Insurance Policy'.
21 It may be possible to novate a licence under certain circumstances.
22 Section 12(2) of the OSA.
23 Section 1(1) of the SIA. See Section 1(4) of the SIA for the definitions of a 'space activity' and a 'suborbital activity', which together are referred to in the SIA as 'spaceflight activities' as per Section 1(6) of the SIA.
24 Section 3(2)(a) of the SIA.
25 Section 3(2)(b) of the SIA.
26 The terms 'range' and 'range control services' are defined in Sections 5 and Section 6(1) of the SIA respectively.
27 With regard to the person or body listed in subsection (2), this includes the Health and Safety Executive, the Office for Nuclear Regulation and the Civil Aviation Authority.