Consultation outcome

Draft policy proposals for exempting defence-related activities from the Space Industry Act 2018

Updated 27 November 2024

Executive summary

The Space Industry Act 2018 (the act) created the high-level legal framework to enable commercial spaceflight and associated activities to be conducted from the UK. The act, which received Royal Assent on 15 March 2018 contains delegated powers to make secondary legislation.  

The act inadvertently captures some defence-related activity conducted by the armed forces of UK allies, their contractors or agents, personnel of a government department or ministry which has direct responsibility for an allied armed force and international treaty organisations with which the UK has a defence interest (for example, North Atlantic Treaty Organisation (NATO) activities) at Ministry of Defence (MOD) controlled and operated firing sites. The licence exemption proposed deals with the launch of sub-orbital rockets and other craft (as defined in section 1(5) of the act) plus the provision of range control services.

The MOD has been at the forefront of rocket technology since the 1950s at its Test, Evaluation, Research and Proofing ranges in Cardigan Bay (Aberporth) and the Outer Hebrides (South Uist). This involves firing rockets above the stratosphere, which brings the requirements of the act into effect. The privatisation of elements of the Defence Evaluation and Research Agency in the 1990s to create QinetiQ Ltd means that the elements of these Defence activities are now supplied by contractors or agents of the Crown. 

There is an enduring need for the MOD and the armed forces of UK allies to: 

• develop, test and evaluate the capability of weapon systems  
• use ballistic targets to test and evaluate the air-defence systems of ships and aircraft  

In the context of current and future conflicts, this need is ever-more relevant.

It should be noted that the Air Navigation Order (ANO) 2016, which regulates airspace below the stratosphere, does include an exemption for all military activity, including rockets launched by MOD and its Allies. The exemptions being proposed under the Space Industry Act bring this more into line with what already happens in the ANO.

The MOD is currently able to carry out test launches outside of the act, as a result of the presumption that an act (in this case the Space Industry Act 2018) does not bind the Crown (for convenience  thereafter referred to as “Crown Immunity”); however Defence activities (especially development, test, and trials) almost always include elements delivered by  contractors or agents, either directly or indirectly, of systems that are capable of operating above the stratosphere.   

Contractors or agents operating directly for the Crown are covered by Crown Immunity. However, the complex nature of some commercial arrangements supporting defence activities means the scope of the term “the Crown”, for the purposes of Crown Immunity, may become complex and arguable. As a consequence we are proposing an exemption under section 4(2) of the act, to allow these activities to take place without any ambiguity.

An exemption is also proposed under section 7(4) of the act to enable MOD contractors or agents, personnel of a government department or ministry which has direct responsibility for an allied armed force to provide range control services at MOD firing sites to armed forces of UK allies, their contractors or agents and international treaty organisations with which the UK has a defence interest (for example NATO).

Contractors are defined as an individual or organisation who is a party to a contract with the armed forces or government of another nation.

Agents are defined as an individual or organisation who is specifically authorised to act on behalf of the armed forces or government of an allied nation but is not a party to a contract. The armed forces or government of the relevant nation are responsible for the acts or omissions of its agents.

Why we are consulting  

The Secretary of State (SoS) is required by section 68(7) of the act to conduct a public consultation before making regulations to which section 68(6) of the act applies. We are therefore seeking views on the policy intent behind the proposed licence exemptions. 

Territorial extent of the proposed exemption   

The proposed licence exemption regulations would extend to the whole of the UK – England, Wales, Scotland and Northern Ireland.

The Space Industry Act 2018 

Space activities and sub-orbital activities are referred to in the act as “spaceflight activities.” Section 3(1) of the act provides that a person must not conduct spaceflight activities in the UK except under authority of a licence under that section.  

Section 4(2) of the act (exemptions from licence requirement) and section 7(4) of the act (provision of range control services), both provide that regulations may make provisions for activities or persons to be exempted either by: 

• the regulations themselves 
• by the regulator from the requirement to hold an operator licence or range control licence, 

but only if the SoS is satisfied that the requirements listed in the section 4(2)(a) – (c) and section 7(4)(a) to (c) are fulfilled. 

Crown immunity 

The Crown is one of the oldest institutions in the United Kingdom and remains a significant part of its constitution. It has, however, no single accepted definition.  

The Crown encompasses both the monarch and the government.

This includes the military and civil servants.

The Crown is not immune from statutes by virtue of any rule of the constitution. However, it does enjoy a measure of immunity by virtue of a common law rule of statutory construction. This rule is the presumption that an act does not bind the Crown. 

There is the presumption that the act does not bind UK military forces acting on behalf of the Crown. However, this presumption does not currently extend to cover rockets and weapon systems test fired by the military forces of allies and their contractors or agents. An example would be during exercises that defend against ballistic missiles, such as Formidable Shield, the next of which is in May 2025. 

Where allied forces and their contractors or agents currently launch sub-orbital objects at MOD firing sites, these may be considered to not be strictly Crown activities. However, the purposes for which these bodies are testing for example effectiveness of rockets, missiles, and defensive systems, are for national security and defence purposes. Therefore, we are seeking to exempt these bodies from requiring an operator licence under section 4(2) of the act.  

The SoS may, under section 7(1) the act, provide range control services. However, where range control services are not provided by the SoS, either a licence or an exemption is required.  

Range control services currently undertaken by the MOD or its contractors or agents for MOD purposes - but not for allied forces or their contractors or agents - also fall within the definition of Crown Immunity.

Therefore another exemption is proposed under section 7(4) of the act enabling MOD  contractors or agents to provide range control services at MOD sites to: 

• armed forces of UK allies 
• armed forces of UK allies contractors or agents
• personnel of a government department or ministry which has direct responsibility for an allied armed force
• international treaty organisations with which the UK has a defence interest for example NATO and the EU

There is no intention to utilise the proposed exemption for commercial space purposes.  

The firing sites are government-owned, contractor-operated sites under the strict control and supervision of the MOD.

The MOD’s contract with the site operator restricts and controls the activity permitted on the sites and requires compliance with internal MOD regulations. This includes restricting contractor activities from carrying out non-defence commercial business on the MOD’s sites.

Question 1: Do you agree or disagree with the suggestions for the proposed policy exemption for allied forces and contractors or agents, personnel of a government department or ministry which has direct responsibility for an allied armed force and international treaty organisations from the licence requirements of the Space Industry Act 2018?  If you disagree, please tell us why.

Civil spaceflight regulatory process 

The MOD has its own regulatory regime which is designed to achieve outcomes that are at least as good as the civil spaceflight regulatory process. For any military event, the nature of military tasking is such that the Civil Aviation Authority (CAA) licensing timeline  is too long to meet the agility required. Subsequently CAA involvement may in turn also prejudice Allies from using UK MOD firing sites, for example for the series of upcoming exercises defending against ballistic missiles.  

The regulator for defence 

The Defence Safety Authority (DSA) is charged by the SoS for Defence via the DSA Charter to execute powers on their behalf. This involves regulating defence activities where there are derogations, exemptions or dis-applications from legislation.  Within the DSA there are non-statutory regulatory authorities which produce and enforce regulation for defence. Defence regulations achieve outcomes that are equivalent to those required by statutory regulation. 

Within the DSA, there are specialist regulators for individual areas of activity. The relevant defence regulators who will oversee the activity subject of this exemption are: 

• the Defence Ordnance Munitions and Explosives Regulator (DOSR) who regulate the weapon systems, certification of the rockets, and issues licenses for the firing sites (‘spaceports’) 
• the Military Aviation Authority who regulates the airspace (the ‘range’), including range clearance, notification of active danger areas, Air Traffic Control and object tracking

The activities permitted under the proposed exemption regulations would be monitored by the MOD.

Requirements under the act

Section 4(2) and section 7(4) of the act require that the SoS must be satisfied of the following requirements before an exemption can be granted.

The exemption is not necessary to secure:

• public safety.
• the health and safety of individuals taking part in spaceflight activities in a role prescribed under section 17(1) of the act.
• compliance with the international obligations of the UK

Public safety

Public safety is defined in section 2(6) of the act as the health and safety of members of the public and the safety of their property.   

Before the proposed exemption regulations can be made, the SoS must be satisfied that the requirement for an operator licence is not necessary to secure public safety. In order to properly consider this, the SoS asked the UK’s independent spaceflight regulator, the CAA, to: 

1. Consider the MOD and DSA’s internal regulations, processes and procedures. 
2. Assure the SoS that MOD and DSA’s practices are sufficient to achieve the same public safety outcomes as the act and Space Industry Regulations 2021 (SIR) do for non-exempted spaceflight activities. 
3. Assure the SoS on the public safety aspects of the proposed section 4(2) and section 7(4) exemptions to the licensing requirements of the act for military contractors or agents. 

The CAA has considered the respective legislative and regulatory frameworks regulating the activities that would be covered by the proposed exemption, comparing the military system to its civilian equivalent. The conclusion was that the frameworks achieve equivalent outcomes. 

The military regulatory bodies have a long track record of maintaining public safety, and the CAA’s view is that it should continue to do so for the activities that would be in scope of the proposed exemption.

The SoS will take into account the CAA’s assessment when making any final decision in relation to the proposed exemption activities.

Individuals taking part in spaceflight activities

This requirement applies to all persons involved in carrying out spaceflight activities in a role or capacity prescribed under section 17(1).  Under regulation 204 of the SIR, for the purposes of section 17(1), a member of the crew is a prescribed role and a spaceflight participant is a prescribed capacity.  The act defines ‘spaceflight participant’ as an individual, other than a member of the crew, who is to be carried on board a launch vehicle with the spaceflight operator’s permission.  As there are no crewed weapons testing where individuals are onboard a test rocket, this requirement does not apply.

International obligations 

The MOD has demonstrated that it has policies, regulations and procedures in place to meet the UK’s international treaties and obligations.

Liabilities 

The MOD will be liable for any losses associated with test firings and launches whilst conducting their activities. The MOD uses the Treasury-approved standard (Defence Contracting Conditions) that deals with indemnity and liability for such activities.   

Ultimately, armed forces of UK allies, international treaty organisations with which the UK has a defence interest and their respective contractors or agents acting on their behalf would be liable for any issues resulting from test firings and launches. The MOD will be required to make sure they are suitably insured.

Legislative process 

The proposed exemptions would be implemented through regulations under section 68(6) of the act. Such regulations would be subject to the Parliamentary affirmative resolution procedure. We currently anticipate that the proposed exemptions could be in place in early 2025, although this is an ambitious timetable and would be dependent on factors including the: 

• responses received following consultation
• availability of Parliamentary time 

Proposed exemption sought by the MOD 

Of the types of licences that CAA grants under the act, 2 are relevant to this exemption:  

• operator (launch) licence
• range control licence 

Once more there is a presumption in law that the act does not apply to the Crown. However, currently, there are no exemption provisions from the requirement to obtain a spaceport licence, as there are for operator and range control licences respectively.

Operator licence 

Where allied forces, international treaty organisations and their contractors or agents launch sub-orbital objects, we are proposing to exempt these bodies from requiring an operator licence under section 4(2) the act.

Range control licence 

An exemption is being proposed to enable MOD contractors or agents to provide range control services to allied forces, international treaty organisations and their contractors or agents at MOD firing sites under section 7(4) the act.

What won’t be exempted 

These scenarios are a list of non-exhaustive examples of the types of activities that will not be covered by the proposed military exemption. This includes: 

• commercial activity not in support of the UK’s defence and security interests will not be exempt 
• space orbital activity will not be covered by the proposed exemption as there is no MOD safety regulator for these activities (unlike sub-orbital activity) 
• the use of military rockets or craft that are not capable of operating above the stratosphere - these covered by the military rocket exemption in article 96(2)(b) of the Air Navigation Order 2016 
• sub-orbital balloon launches as the MOD does not permit this activity to be carried out from a MOD firing site   
• the launch of a rocket or craft from a MOD site, but where it is operated elsewhere other than a UK site for example being operated remotely from the US or another state’s military base since internal MOD safety regulations do not cover operation from or over non-MOD sites

Question 2: Do you agree or disagree with the objectives of the proposed licence exemption regulations? If you disagree, please tell us why.

Question 3: Do you agree or disagree with our proposals on the types of activity that should or should not be exempt? If you disagree, please tell us why.

Question 4: Do you have any other views on how the act should apply to military activities?

How to respond 

Questions are posed throughout the document and listed together in a full list of questions catalogue. You may respond in any of the ways listed but are encouraged to respond principally via the online survey.

If you have any questions or need hard copies of information, you can contact us at SpaceTeam@dft.gov.uk.

Commercial Spaceflight Policy Team
Department for Transport
4th Floor, Great Minster House
33 Horseferry Road
London
SW1P 4DR

All communication should be clearly marked ‘Draft policy proposals for exempting defence-related activities from the Space Industry Act 2018’.

The consultation period began on 12 September 2024 and will run until 13 October 2024. Please ensure that your response reaches us before the closing date.

What will happen next

A summary of responses, including the next steps, will be published within 3 months of the consultation closing on https://www.gov.uk/dft. Paper copies will be available on request.

Full list of questions

These questions are listed here to give you an overview of what we are asking.

See the Ways to respond section of the GOV.UK page for this consultation for an online response form and other ways to respond.

Personal details

Name: 

Email address: 

Are you responding as an individual or organisation?

Organisation details (for organisations only) 

What is the name of your organisation?

What is your organisation’s type of work?

• Launch operator 
• Spaceport 
• Range control service provider
• Other 

Number of employees your organisation has?

Individual details (for individuals only)

Are you employed?

Consultation questions

Question 1: Do you agree or disagree with the suggestions for the proposed policy exemption for allied forces and contractors or agents, personnel of a government department or ministry which has direct responsibility for an allied armed force and international treaty organisations from the licence requirements of the Space Industry Act 2018?  If you disagree, please tell us why not?

Question 2: Do you agree or disagree with the objectives of the proposed licence exemption regulations? If you disagree, please tell us why not.

Question 3: Do you agree or disagree with our proposals on the types of activity that should or should not be exempt? If you disagree, please tell us why.

Question 4: Do you have any other views on how the act should apply to military activities?

Confidentially and data protection 

Information you provide in response to this consultation, including personal information, may be disclosed in accordance with UK legislation (the Freedom of Information Act 2000, the Data Protection Act 2018, and the Environmental Information Regulations 2004). 

If you want the information that you provide to be treated as confidential, please tell us, but be aware that we cannot guarantee confidentiality in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not be regarded by us as a confidentiality request. We will process your personal data in accordance with all applicable UK data protection laws. See our privacy policy.

View our DfT online form and survey privacy notice [opens in a new window] for more information on how your personal data is processed in relation to this consultation.

In addition for all:

• individuals we are asking if they are employed, for their work status
• organisations we are asking for their name and type of work for identification plus their number of employee, to weigh their response accordingly

Consultation principles

This consultation is being conducted in line with the government’s consultation principles.

If you have any comments about the consultation process, contact SpaceTeam@dft.gov.uk.