The Drones Bill: was prior consultation adequate?
Last Monday, Parliament started to consider the Drones Bill. Technically it’s the Air Traffic Management and Unmanned Aircraft Bill [HL], and it contains important changes to ensure airspace changes happen in a more co-ordinated way. For most people, however, it will be the legislation that will, hopefully, prevent a recurrence of the phantom drone-flyer of Gatwick that managed to close the airport for five days just before Xmas 2018 by greater regulation and increasing the powers of the police.
One of the better features of our legislative process – though not one that always works well – is the growing likelihood that Government departments bring Bills forward with the benefit of consultation having already occurred. Such is the case here. Baroness Vere, as the Parliamentary Under-Secretary at the Department for Transport, was quick to point out that the Government had indeed consulted between 26th July and 17th September 2018. The exercise was called Taking Flight: The Future of Drones in the UK, and the Government Response was published in January 2019.
The Institute believes that the output of a consultation should always be published separately from its outcome, but Government departments continue to roll them up together. Whitehall’s own Consultation Principles requires the publication of responses within 12 weeks. Still, once again, Departments prefer to wait until they can announce their decisions on how they will react. Obviously, there is a temptation on occasions to ‘spin’ those messages to make them look more responsive to what consultees might have said.
When their Lordships began to debate the Bill, there were immediate questions as to whether the consultation was still a sound basis from which to legislate. After all, it took place months before the Gatwick disruption, and the painful lessons learnt from that unhappy experience. Did it not fuel speculation about who might be responsible? Pranksters … or Protesters? Might not this have changed perceptions of what should be done? Might Airport Managers have formed different views? What do the police think now? Should there be another consultation? Or would that cause further delay when critics accuse Ministers of having already wasted a year …?
So we have just taken a close look at the 2018 consultation. In fact, there is much that is good in it. Admittedly, at 71 pages (excluding Appendices) and 79 questions, it weighs in rather heavier than the latest mini-drones, but to a layman, many of the proposals seemed sound and, by and large, they asked sensible questions.
Unfortunately, however, it is not the consultation paper that should assist our legislators. It is the extent of participation and the analysis of the responses. What did various consultees and stakeholders think of the proposals? What are the arguments? How much support do those arguments enjoy?
In this respect, we have real concerns about the Government response.
First – who responded? Unlike better Government consultations, this document did not contain a list of key stakeholders who contributed their views. The exercise attracted 5,061 responses, most through its online survey and some as part of a coordinated campaign. Of these,
- 2,310 used drones for leisure purposes
- 1,947 were model aircraft flyers
- 205 flew drones for commercial reasons
- 165 were general aviation pilots
- 73 were businesses that used drones
- 12 were airports or airlines
- 10 were local authorities etc.
Overall, not a bad spread except for a worry that Airports and Councils appear not to have participated much – unless maybe they contributed through a category of 22 ‘membership or representative organisations’ (there is nothing to tell us!)
Next – what have we learnt about what they all said? Sadly, the analysis is vague and imprecise. The Report is full of largely meaningless generalisations:-
- Some answers highlighted (5.10)
- There were a broad range of views (5.17)
- Some respondents held the view (5.42)
- There was substantial support for (6.18)
- Respondents supported the Government’s proposal(6.23)
- There was fairly strong support for … (6.49)
- Many respondents agreed (6.73)
- Only a small number felt that …(7.11)
- Only a small number thought that … (7.39)
Note that the published analysis does not distinguish between one kind of consultee and another. It means that a response from Heathrow Airport has effectively been given a similar weight as from a single model aircraft flyer!
Finally, we have no idea how many people might have answered a specific question. Some of the questions are more technical than others, and it is unlikely that some of the responders would have felt able to answer. To illustrate why this matters, just consider the analysis of one question:
Question 42: Do you agree that the police require new powers in relation to the misuse of drones?
In general, there was strong support for new police powers specific to drone misuse. Respondents felt that specific police powers would lead to more successful prosecutions. Many felt this would lead to increased responsibility and awareness associated with drone operations which would, in turn, improve the public perception of drones.
All this may be well and good, but surely what might be important to legislators is knowing what the police were saying. Or the Airports? Or local Councils. The Report (at Paragraph 6.70) then goes on to say:-
Some respondents, while in favour of police powers, were concerned that the police do not have the resource to enforce or use any further powers. Others recognised that education and communication of regulation need to be promoted alongside the new powers in order to effectively increase responsible drone flying. Some felt that an educative approach should be prioritised above a legislative approach.
Again, it might be relevant to know whose views were these. And was it ten responses. Or 30? Or 300? Additionally,
Furthermore, there was a group of respondents who were against the introduction of specific police powers. These respondents felt that new powers would be disproportionate to the risks posed by drones. Many felt that providing the police with increased powers would serve to solve a problem which does not exist.
This is clearly not in line with the Government view. It’s important, therefore to understand who is it that disagrees. Again was it ten responses? Or 1000?
In summary, the pre-legislative consultation, in this case, provides only limited insight into the views of key stakeholders. Make no mistake – it is not disastrous. We have seen many worse. And we accept that MPs and Peers may have the opportunity to seek more opinions in coming weeks as the Bill goes through its various stages.
But is it time to insist on better standards and on an independent briefing for legislators where consultation should influence their decisions?
Last Monday, many who spoke in the Lords debate queried whether the relevant consultation was adequate.
It should not be necessary to ask.