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

The third EU regulation covered by this instrument is Regulation 1254/2009, which sets out the conditions under which alternative security standards to the common basic standards may be applied. It covers, for example, non-commercial flights, where the full passenger screening requirements may not be necessary. It allows that for such flights, the common basic standards contained in the main framework regulation may not be appropriate and alternative security measures may be more appropriate. Specifically, such flights might involve light aircraft with a maximum take-off weight of less than 15,000 kilograms; law enforcement flights; flights for medical services, emergency or rescue services; or certain private or business aircraft flights. The draft instrument makes no changes to these criteria.

Regulation 2015/1998 implements the common basic standards by prescribing more detailed requirements. This covers matters such as airport security and planning, aircraft search, passenger and baggage screening, cargo and mail security, training and recruitment, security of supplies available in airport shops and on board aircraft, and technical equipment standards. It makes detailed provision for the practical implementation of the measures contained in Regulation 300/2008. All of these aspects are essential to aviation security and this instrument retains the provisions, subject to the necessary amendments to remove specific EU references.

One key area of Regulation 2015/1998 is the EU inbound cargo regime. The EU operates a regime known as ACC3, which stands for “Air Cargo or Mail Carrier operating into the Union from a Third Country Airport”. In essence, this is a requirement for air carriers carrying cargo into the EU from a non-EU country to hold security designations. These designations confirm that they are screening cargo to the required standards and that a secure supply chain exists from the origin of the cargo to its point of entry into the EU. Responsibility for administering this system and granting designations is currently shared between member states. If the UK leaves the EU without a deal, it will no longer be part of this system, but it is of course critical that we maintain our inbound cargo security protections. The effect of this draft instrument is to retain the requirement that carriers must hold a security designation in order to fly cargo into the UK from third countries, and to apply this in a UK-only context. The new system of UK-ACC3 designations will be managed by the Civil Aviation Authority and the Department for Transport. In order to ensure a seamless transition on exit day, new UK designations will be issued to all carriers flying into the UK who currently hold EU designations. On expiry, carriers and screening entities will need to apply directly to the UK for new designations in the event of no deal. New designations will be granted using largely the same criteria as the existing system to minimise any additional burden on industry.

Regulation 2019/103 amends Regulation 2015/1998. The amendments that come into force before exit day have already been incorporated into Regulation 2015/1998 and will be retained and amended accordingly. The amendments that come into force after exit day do not form part of retained EU law. The only provision in Regulation 2019/103 that becomes part of retained EU law on exit day deals with the coming into force date of those later amendments. As the provision does not therefore serve any purpose, it is revoked by this draft instrument.

Regulation 72/2010 covers the requirements for Commission inspections of EU airports and national authorities, which will no longer be applicable, so the draft instrument revokes this regulation. The draft instrument also amends the Aviation Security Act 1982 to remove references related to Commission inspections and inspectors.

Finally, in this instrument, Decision C (2015) 8005 contains detailed provision relevant to and in parallel to the detailed provision in Regulation 2015/1998. This Commission decision is a restricted confidential instrument which contains sensitive information necessary to require airports to carry out effective security procedures. Because of the security-sensitive nature of the provision it makes, for example, on the types and quantities of material used for equipment testing, the decision is circulated only on a “need to know” basis and is not published.

Under the withdrawal Act, EU instruments not published before exit day are not required to be published on exit day and therefore cannot be meaningfully amended by this draft instrument. In order to retain the important aviation security rules contained in the decision, the requirements previously contained in it will instead be imposed by a direction. The direction will be given by the Secretary of State under powers contained in the Aviation Security Act 1982. The direction will form part of the single consolidated direction which sets out our domestic aviation security requirements that apply on top of EU legislation. The direction is regularly updated and a new version, incorporating the content of the decision, will be issued prior to EU exit. The content of the new direction will be disseminated to the same UK entities as those which currently see the EU decision.

The best outcome is for the UK to leave the EU with a deal, and delivering a deal negotiated with the EU remains the Government’s top priority. However, as a responsible Government, we must make all reasonable plans to prepare for a no-deal scenario. This draft instrument ensures that in the event of a no-deal exit from the EU, the legislative framework for aviation security will give the aviation industry clarity about the regulatory framework in which it would operate in a no-deal scenario. It will ensure that we can continue to keep passengers and our aviation infrastructure safe and secure. I beg to move.

I move now to the granting of operating licences, which is dealt with in paragraph 7.3(h) of the Explanatory Memorandum. What will be the impact of removing the provision for mutual recognition between member states in the case of the granting of operating licences?

Finally, the EU has a system of mutual recognition of approved air cargo carriers, whereby approval is given following inspection. Once we leave the EU, we will no longer benefit from this system and will have to set up our own system of inspection and designation. To start with, it is explained here, we will recognise all those carriers we currently recognise, but, obviously, things will move on pretty fast. New companies will enter the field, new information might come to light about existing carriers, and so on. We will have to erect a new system that will be expensive to the taxpayer, but also—this is an important point—to the companies seeking approval, because they will have to do it twice over. They will have to seek approval in the EU and in the UK. Once again, I am really concerned that we are isolating ourselves on a security issue. We are voluntarily forfeiting access to information via EU systems. Obviously, on the balance of probabilities, we will be less secure as a result.

It then states:

“The Decision prescribes detailed requirements which correspond to the detailed requirements set out in Regulation 2015/1998 but which, if published, would compromise the efficacy of the security measures applied at airports (e.g. the detailed specification of screening equipment or the minimum percentage of passengers required to undergo a particular form of screening)”.

As has already been said, we are told that the decision will therefore not be published on exit day in accordance with paragraph 1 of Schedule 5 to the withdrawal Act, and for this reason cannot be the subject of provisions made under Section 8 of that Act.