Aviation Safety (Amendment etc.) (EU Exit) Regulations 2019

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Aviation Safety (Amendment etc.) (EU Exit) Regulations 2019.

My Lords, this draft instrument will be made using powers in the European Union (Withdrawal) Act 2018 and will be needed if the UK leaves the European Union in March without a deal.

The draft instrument corrects five principal EU regulations related to aviation safety, together with a number of Commission implementing regulations made under them. The draft instrument also makes some corrections to domestic legislation which establishes offences and penalties relating to the EU legislation. The most important of these is EU Regulation 2018/1139 —more commonly known as the EASA basic regulation —which establishes a comprehensive regulatory framework for aviation safety in the EU. In particular, it provides for the continued establishment of the European Aviation Safety Agency and the adoption by the European Commission of implementing regulations on aviation safety. These implementing regulations also ensure the EU member states can meet their obligations under the Convention on International Civil Aviation—the Chicago convention.

The implementing regulations each deal with a specific aspect of aviation safety regulation, including: the design, construction, maintenance and operation of aircraft; the licensing of flight crew, maintenance engineers and air traffic controllers; the provision of air traffic management and air navigation services; the design and operation of aerodromes. The other principal regulations are: Regulation 3922/91, on technical harmonisation, which has largely been replaced by the EASA basic regulation—but provisions on flight and duty time limitations still apply to the crews of aeroplanes undertaking air taxi, emergency medical service and single pilot commercial air transport operations; Regulation 2111/2005, which establishes the list of air operators banned from operating to the EU on safety grounds; Regulation 996/2010, which sets requirements for the investigation of air accidents and incidents; and, finally, Regulation 376/2014, which establishes requirements for civil aviation occurrence reporting.

Many of the corrections we are considering today are to clarify that the retained legislation only applies to the UK. For example, references to “the territory to which the treaties apply” are replaced with “the UK”, and references to “the competent authority” are replaced with references to “the CAA”. Other amendments relate to the relationship between member states. For example, requirements on the mutual recognition of licences are deleted, as are requirements on co-operation and the sharing of information.

The draft instrument also reassigns functions that currently fall to EU bodies. The majority of regulatory functions required under the EU regulations are currently undertaken by the competent authorities of member states. These include: licensing pilots, air traffic controllers and maintenance engineers; and certifying the airworthiness of individual aircraft. However, EASA is responsible for a number of functions, including: preparing proposals for new technical requirements and for amendments to existing technical requirements; approving organisations that design aircraft and aircraft engines as well as certifying the design of aircraft and engines types. The CAA will take on these functions, with the exception of those related to management of the EU safety regulatory system, which will be corrected so as to no longer apply. While design certification has formally sat with EASA since 2008, it is not a capability that the CAA has totally relinquished, and we are confident that the CAA will be able both to meet the needs of industry and to fulfil the UK’s international obligation as the “state of design”. The CAA is implementing contingency plans to ensure that it will be able to undertake the new functions effectively from exit day in the event of no deal.

My Lords, I am grateful to the noble Baroness for introducing these regulations. It would be good if she could say something further as a result of the Boeing accident a couple of days ago, which brings aviation safety into focus.

I have a couple of questions, and I will use the Explanatory Memorandum as a reference because it is easier. My first question is on paragraph 7.2, “Corrections to domestic subordinate legislation”. She said that most aircraft types are subject to EU technical requirements and that will be changed from “EASA aircraft” and “non-EASA” aircraft to “Part-21” and “non-Part-21”. What is the point of this, and has anybody seriously tried to get associate membership of EASA? I know “European” is in the name, which probably means that it is anathema to some members of the Government, but it would be a lot easier. I will probably bring this up when we debate railways as well. EU technical requirements are well known and well respected. We will have CAA technical requirements if this SI goes through. What happens when they diverge? Is there any mechanism for our side to talk to the European side? It is pretty stupid to have technical requirements for aircraft in this country that will be different—even to a small degree—from those in the European Union. Of course, the same applies vice versa. We tend to think only about the problems in this country, but for our planes to be able to fly on the continent, presumably somebody has to confirm with EASA or the Commission that the technical requirements of our planes fit in with their specifications.

My second question relates to paragraph 7.5 of the Explanatory Memorandum concerning banned operators. Quite a few rather unpleasant cases over the years come to mind. The paragraph refers to the,

“list of aircraft subject to an operating ban in the Community”.

That means that there is a list, which is great, but what process will there be for the UK and the European Union to share that list? It would be pretty stupid to have two lists, and I hope that the Minister can give us some comfort that there will be a mechanism for sharing, as this is a very important issue.

My Lords, I thank the Minister for her opening statement. The Ethiopian Airlines crash has been a salutary reminder of the fundamental importance of aviation safety. Sometimes we take it for granted, but it relies on a complex interlocking of the highest standards for design, manufacture and maintenance, stringent standards for the training of flight crew and air traffic controllers, and exacting standards for the design and operation of airports. As aircraft have become more complex—the crash two days ago illustrates this point extremely well—and the skies become more crowded, the importance of international co-operation on the specification and maintenance of these standards has never been greater.

Yet this SI is intended to withdraw us from EASA and hence from access, as of right, to much of that international co-operation. I was very pleased that the Minister confirmed yesterday that the Government want to remain a member of EASA. I have no doubt that the Minister wishes to do so, but it was good to have the reassurance that that was the Government’s position. However, in the present political chaos, we cannot rely on this SI being simply a paper exercise.

Last November, the Second Legislation Scrutiny Committee drew our attention to this SI. It drew attention to the impact on CAA resources and to whether the EU will reciprocate in the recognition of licences, certificates and approvals. The UK will continue to have the same technical requirements and standards on exit day but, as the noble Lord, Lord Berkeley, has just said, there are real questions over future changes and over whether and how we will keep in step with the EU. Next week, we will be looking at maritime SIs, and we are way behind in keeping up with the flow of maritime legislation. I have real concerns that in the aviation sector, where technology moves on really fast, we will not be on the ball in changing our standards as fast as the EU.

EASA has set the highest standards, and we have been a very important member of it. Given the importance of our contribution, it is sad that we are considering this situation today. The CAA has a well-deserved reputation for efficiency and expertise. However, in future it will have to operate within the framework set by the Secretary of State, and not that set by the European Commission. The difference is this: as I pointed out last week, when we were discussing railways, there is an issue about the transparency of the process and the availability of the information for public scrutiny. I was concerned to read in Paragraph 7.4 of the Explanatory Memorandum that:

“Delegated powers in the Basic Regulation are transferred … to the Secretary of State, who will be able to make regulations to adopt new technical requirements or to amend the technical requirements”.

There is no procedure laid down here for consultation and no formal role for the CAA as advisers; and, worse, it is by negative procedure. I have very serious concerns about this, because there may be no public discussion and no public rationale provided by the Secretary of State as to why standards are changing.

I am concerned, too, about the implications of paragraph 7.3(b) in the Explanatory Memorandum, on the recognition of certificates. In future, individuals will need UK certificates if they are to fly or maintain UK-registered aircraft. This again has important resource implications, and I would be pleased if the Minister could give us details of the resource impact on the CAA in providing those certificates.

Paragraph 12.2 of the Explanatory Memorandum refers to additional staff for the CAA. It would be good to know how many additional staff will be needed and what their cost will be. If the Minister has not got that information today, could she write to us?

Paragraph 7.5 says that the UK safety list of banned operators will no longer be laid down in legislation but merely published on the CAA website. There have been serious incidents involving operators and banning, but I am concerned about this change of approach. Why will it not be laid down in legislation in future? Why is it just a notification on a website? Would there be a legal implication if there were to be infringements of a ban, for instance? Again, simply having this on a website lacks transparency and public accountability.

Moving on to the thorny issue of consultation, we have the same formula of words that we have had before—that there has been “regular engagement” with the industry and “long-established stakeholder forums”, and so on. This is absolutely not the same as consultation. It is much less transparent, and we are all aware that there have been issues with the ability of those who have been consulted in these forums—specifically, the limits that have been put on them in terms of what they could say publicly about their views on that consultation, the Government having limited their rights to do this. That is the opposite of a public consultation. If a public consultation had taken place, we would have a report on how many people were opposed to something, how many people supported it and so on, and if that report was not made public, we would have the right to ask for that information. There is no public trail of accountability here.

Moving on to the impact, individuals will need new CAA licences after two years. The committee’s report specified that the CAA will need 59 additional staff, 38 of whom were in post in November. Are they all in post now? What will the annual cost of this system be? Pilot licences issued by the EU must be validated by the CAA before being used outside the UK on a UK-registered aircraft. I note that there will be no charge for this, but last November the Department for Transport was unable to tell the committee how many people would be affected by the requirement for these new licences. Does the Minister now have that information?

As CAA licences will not be recognised in the EU, pilots will need to transfer their licence to another EU state if they wish to operate aircraft registered under the IATA system. Any cost to them will depend on which member state is involved.

I understand the reason for this statutory instrument, and I greatly regret the reason for it, but the system that is being put in place is less transparent, the standards will be less guaranteed and there are significant impacts on individuals working in the aviation industry. I am concerned that there has not been sufficient publicity about this aspect.

My Lords, I make my usual statement that I deeply regret being here. I think the idea of leaving the European Union without an agreement is absurd. In many ways, this SI and the many SIs I have worked through illustrate just how bad a situation it will be, but assuming that we are leaving, or have to be ready to leave, the EU without an agreement, I have looked at this SI. Its thickness deterred me from reading it, so my comments are based on the Explanatory Memorandum. Having been in the industry, I look forward to the seminar that the Minister is no doubt about to give us on ICAO. She will no doubt explain how this statutory instrument answers many of the questions that have been asked. I am sympathetic to many of them.

I shall restrict myself to two issues. The first is the powers of the Secretary of State. I have dealt with an awful lot of these SIs, and they have the same general characteristic: the stuff that is handled by EU regulators gets handed to UK regulators, and the stuff that is handled by the Commission is transferred to the Treasury. As I understand it, the Treasury is a body in its own right that can make decisions as a body in its own right. In a sense, one would expect the Treasury to be equipped to make those sorts of decisions. Here, paragraph 7.4 of the Explanatory Memorandum states:

“Delegated powers in the Basic Regulation are transferred from the Commission”;

and it ends by introducing a role for Parliament:

“Regulations made by the Secretary of State would be subject to negative resolution procedure”.

Unfortunately, as you read the document, it implies that decisions will be made by the Secretary of State himself, as the natural person. Given recent history, I am not sure that Parliament should be that comfortable with the idea of giving decisions to this Secretary of State, as the natural person. I assume it will not work like that. I assume the department and the Secretary of State will set up systems to advise the Secretary of State to analyse the issue and make sure that when we come to examine the regulations—if we choose to, under the negative procedure—the decisions would be backed up by a proper decision-making system, which the Minister will be happy to present to us. I hope we have reassurance on that point. To some extent, that covers one of the points made earlier in this debate.