On 5 March 2021, the UK Government published its response to the consultations that were held in the summer and autumn of 2020 on the secondary legislation which will implement the Space Industry Act 2018[1](‘the Consultation Response’). The same will be of interest to space insurers and interested stakeholders, to include those involved in commercial spaceflight manufacture, and prospective spaceflight and spaceport operators.
In 2020, the UK Government published two consultations on its proposed framework for commercial spaceflight launches. The framework embraces regulation of licences to charging proposals, liability and insurance aspects to spaceflight accident investigation. As regards the latter, taking into consideration consultation feedback, the UK Government advises that no substantive amendments are to be made to earlier published draft regulation[2]. However, the Government will update associated guidance material to address certain suggestions raised in feedback from respondents.
So, bearing in mind 2020 draft legislation and taking into consideration now the Government’s Consultation Response, how is the scene now set as regards UK spaceflight accident investigation?
As the saying goes, imitation is the sincerest form of flattery.
The UK Government could have elected to evolve the existing Air Accident Investigation Branch (‘AAIB’), to extend its investigative reach to spaceflight accident investigation. After all, the AAIB is a civil accident investigation body of world renown, with long-established and proven expertise. Instead, the election is to create a separate independent body, the Spaceflight Accident Investigation Authority (‘SAIA’). As discussed in our earlier article (UK Spaceflight Accident Investigation: A Parallel Universe? 13 November 2020) proposals for the SAIA in large part mirror existing AAIB provision for air accident investigation. As the saying goes, imitation is the sincerest form of flattery. The UK Government has been validated in its approach, noting in its Consultation Response that no issue is flagged by respondents to the 2020 spaceflight consultation concerning the adoption of this approach.
Investigation
When we look at the powers of investigation to be afforded to SAIA inspectors, we are on familiar air accident investigation ground. Proposed rights extend to access to the accident site, the spaceflight vehicle or its wreckage, the flight recorders and other recordings. The SAIA will have the right to examine witnesses and to have access to relevant information or records of the owner, operator or manufacturer of the spacecraft and of the launch authority.
The costs of investigation and implementation of safety recommendations
As with civil air accident investigation, enquiry by the SAIA will not preclude formal investigation by other bodies, which may run concurrently with that of the SAIA. This may include investigation by the police, by the relevant health and safety executive, and (in the event of a fatality) by the coroner’s office. Following a serious spaceflight accident, space insurers and their insureds may need to juggle multiple lines of formal enquiry, with attendant costs and placing a significant draw on the time of key personnel.
Draft regulation permits of recovery by the SAIA of, ‘reasonable expenses in, or in connection with, carrying out an investigation under the regulations from a licensee.’ Some respondents suggested amending the regulations to set a limit on the expenses recoverable by the SAIA. Others mooted that the costs to the licensee of implementing any safety recommendations as a result of an investigation should be considered before a recommendation is made. The Government’s response on both points is clear:-
- The purpose of recovering ‘reasonable’ expenses is to ensure that spaceflight activities in the UK do not place an unnecessary burden on the UK taxpayer. What is ‘reasonable’ will vary depending on the investigation and therefore cannot be limited by regulation. The message to insureds and their insurers is that, ‘while an investigation can be costly, it is the operator’s responsibility to ensure they have adequate financial capital and/or insurance to cover any potential costs.’ One word of comfort: the right to recover costs is permissive, so whether it is in fact exercised in any given case, remains to be seen.
- As to who should bear the burden of costs associated with the implementation of SAIA safety recommendations, the Consultation Response notes that, ‘the role of the SAIA is not to calculate the costs associated with the implementation of a recommendation, but to prevent the recurrence of spaceflight accidents and improve safety’.
Spaceflight Accident Investigation Reports
SAIA investigations will culminate in the publication of a formal accident report. First and foremost, SAIA reports will speak to the question of incident or accident cause, to assess what went wrong and why. Secondly, reports will present opportunity for the promulgation of safety recommendations, on a lessons learned basis. Prior to the publication of any report, there will also be a consultation process which will provide an opportunity for certain affected parties to make representations. Again, in these respects the SAIA will bear the pedigree of the AAIB.
By express terms, SAIA reports are to be public documents but the underlying records of investigation are not. As noted in the Consultation Response, ‘the focus of … investigations will be to improve safety and prevent further accidents occurring, therefore only the information deemed absolutely necessary to include in the safety investigation report will be published’. The aim is to preserve the necessary separation between safety and judicial investigations. This again echoes the principles that underscore AAIB investigations.
In the context of civil air accident investigation, in the seminal decision of Rogers v Hoyle[3], the English court held that an AAIB report, being a publically available document, is admissible in evidence. However, whilst an AAIB report is typically the principle point of reference and commentary for a party’s experts and legal representatives at trial, it is not considered conclusive of anything, nor does it shift the burden of proof, nor does it preclude any party to a civil action from challenging anything in it or restrict or limit any other admissible evidence that any party may choose to call. We can expect SAIA reports to have equivalent standing before an English civil court.
As to SAIA investigation underlying material, we anticipate the prospect of applications in civil actions to determine, on consideration of a public interest test, whether in a related civil action, inspectors are to provide protected information that is requested or their analysis/opinion of the relevant facts.
The stage is set
There are a few remaining wrinkles that warrant attention. Some are acknowledged in the Consultation Response, others are not. The expectation is that these will be addressed in guidance document amendment:-
- feedback on the spaceflight consultation highlighted the muddle that is created by adoption of the term, ‘spaceflight accident’ in draft spaceflight accident investigation regulations whilst elsewhere (e.g.in separate draft Space Industry Regulations) the phrase ‘major accident’ is used. The latter term is referred to in the context of what a potential licensee should consider when developing their safety case. The Consultation Response notes that, ‘should a “major accident’ occur, this would also be a ‘spaceflight accident’ and require investigation by the SAIA. This will be clarified in guidance’;
- current draft regulation wording extends the SAIA’s investigative reach to events occurring in the procurement phase. It is somewhat unclear whether this is intentional (if so it represents significant departure from the equivalent position in civil air accident investigation) or a slip up in the drafting;
- the permissive reach of SAIA investigation extends to accidents in relation to which the UK is identified as ‘the state of maintenance.’ Both the state of manufacture and the state of registration of a space vehicle are readily identifiable concepts. However, ‘the state of maintenance’ which is not otherwise defined, strikes us as somewhat nebulous as a concept. The uncertainty is compounded when one bears in mind that investigative reach extends to the state of maintenance not only of the space vehicle concerned but of ‘any component of the launch vehicle’;
- in the arena of civil air accident investigation, ICAO Annex 13[4] sets out a list of example events each of which constitutes a ‘serious incident’ for the purpose of air accident investigation. The list is illustrative, but not prescriptive. A list in similar terms as concerns ‘serious incidents’ in a commercial spaceflight context would be helpful to insurers and insureds alike; and
- a 2020 amendment to ICAO Annex 13 (No 17), applicable as at 5 November 2020, introduced a Swiss cheese/risk based assessment to civil aviation accident investigation, as an additional aid to determination of serious incident. This stands as a supplement to the existing above-mentioned list-based approach. The approach warrants inclusion also in SAIA guidance material.
Conclusions
Residual wrinkles apart, by setting the foundations of the SAIA firmly in the footprint of the UK AAIB, there is comfort for space insurers and insureds both in risk management and incident response planning. The SAIA is set to be at the cutting edge of state civil spaceflight accident investigation. It has the potential to become a trailblazer in its field and a global guru for best practice. SAIA reports will also stand front and centre in related civil claims and will set the parameters within which issues of causation and liability are argued.
[1]Unlocking Commercial Spaceflight for the UK: Space Industry Regulations Consultations: summary of views received and the Government’s response, date of issue: 5 March 2021.
[2] The draft Spaceflight Activities (Investigation of Spaceflight Accidents) Regulations 2020.
[3] [2014] EWCA Civ 257, http://www.bailii.org/ew/cases/EWCA/Civ/2014/257.html
[4] International Civil Aviation Organisation Annex 13 - Aircraft Accident and Incident Investigation - contains the international Standards and Recommended Practices for aircraft accident and incident investigation.
