Aviation Safety (Amendment) Regulations 2026
(Limited Text - Ministerial Extracts only)
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Lord Hendy of Richmond Hill
That the Grand Committee do consider the Aviation Safety (Amendment) Regulations 2026.
Relevant document: 54th Report from the Secondary Legislation Scrutiny Committee
The Minister of State, Department for Transport (Lord Hendy of Richmond Hill) (Lab)
My Lords, this instrument has two objectives. The first is to amend Article 71 of the assimilated basic regulation to give the Civil Aviation Authority more flexibility to grant exemptions to the basic regulation. The second is to remove a criminal sanction that has never been used. The removal of this sanction will enable further legislation later this year in order to bring the UK into line with international requirements on how far aircraft can operate from diversion airports.
This instrument was originally laid before Parliament in January this year as a negative procedure statutory instrument, in accordance with the procedures set out in the retained EU law Act 2023. Following scrutiny by both the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments during the sift, the Transport Committee recommended that this instrument be relaid as an affirmative SI. The Government accepted that recommendation, and the instrument was relaid as an affirmative SI in January.
During that sift, the Secondary Legislation Scrutiny Committee raised concerns about how genuinely exceptional exemptions to Article 71 would be, given the suggestion that they would be used to facilitate day-to-day activities, and the JCSI raised a concern that
“the changes proposed by this instrument could represent a significant diminution of existing regulatory protections”.
Once the instrument had been relaid, the SLSC reiterated its original concerns and the JCSI had no comments. I will go into the detail of the amendments and then address those concerns.
Article 71 of the assimilated basic regulation sets out the conditions under which the Civil Aviation Authority may grant an exemption to the basic regulation for an applicant. A legacy of EU legislation, the existing wording of the law means that the CAA can grant an exception in only two possible scenarios: urgent unforeseeable circumstances, and urgent operational needs. This means that the CAA cannot issue exemptions for foreseeable circumstances with no urgent operational need, such as festivals or testing drones—consider, for example, the Formula 1 races at Silverstone, which handle around 1,000 helicopters over four days.
Under the assimilated aviation law, which is a legacy of the UK’s membership of the European Union Aviation Safety Agency—the EASA—all the basic requirements of the basic regulation would need to be met. This legislation was developed with the requirements of airports providing a permanent service in mind; such requirements are disproportionate for a short event. Currently, the CAA cannot grant exemptions for these events because they are yearly, predictable and foreseeable, even though granting an exemption would clearly enhance safety.
In addition, this amendment will allow the CAA to grant exemptions to businesses in order to enable the testing of new and innovative technologies. Today, that is difficult because many of the requirements of Article 71 do not take into account future developments in technology, such as testing “beyond visual line of sight” drone flights in airspace that is not separated from regular air traffic. The existing rules were made before current “beyond visual line of sight” developments, and it is difficult for the CAA to grant exemptions specifically for testing as testing is usually neither urgent nor unforeseeable. By enabling exemptions to be granted beyond urgent operational needs or urgent unforeseeable circumstances, the UK aviation sector will be able to trial and test new technologies more easily.
As the UK has now left both the European Union and the EASA, the Government are now able to amend Article 71 to give the CAA more flexibility to support safety and innovation. The CAA has developed a robust framework to ensure that exemptions granted under Article 71 will not degrade safety. Each request will be risk assessed by the CAA’s aviation safety experts and will be granted only if they believe that the exemption will maintain a high standard of safety and there is no other way of achieving the same goal. The CAA will examine each request individually, and just because the request has been granted once, it will not then set a precedent for future exemptions.
These criteria are deliberately strict, ensuring that the CAA considers the existing protection requirements for aircraft noise, fuel venting and engine emissions, whether decisions are non-discriminatory, the creation of unreasonable working conditions or safety risks, and whether exemptions support public protection and broader aerospace development. This means that while exemptions will be given for day-to-day activities such as testing, each exemption will still be exceptional. The CAA’s framework will ensure that each request is scrutinised and granted only if applicants can demonstrate high levels of aviation safety, as well as setting out a path to future full regulatory compliance. Regulatory protections will remain and my officials will continue to work closely with the CAA to oversee how the new exemption process is used.
I note that during the consultation, 42 of the 51 respondents supported the amendments to Article 71. One respondent, Unite the Union, raised concerns that exemptions might be granted on a regular basis, particularly where such exemptions could weaken the working conditions of crew onboard aircraft. I assure noble Lords that exemptions will be granted only where a high level of safety can be assured, and the CAA must and will carefully consider the impact of exemptions on working conditions.
I turn to the second objective of this SI, which is to remove a criminal sanction that has never been used. The removal of this sanction will enable amendments later this year, which will allow operators of two-engine aircraft more flexibility in how far they operate from diversion airports. Operators of aircraft with more than two engines will now also need to consider their distance from diversion airports. This change will bring the UK into line with international requirements. These amendments could not be introduced without removing the criminal sanction, as the powers needed to amend provisions with criminal sanctions are contained in the retained EU law Act, which expires in June this year. The Civil Aviation Authority has never brought a prosecution under this provision, and I am confident that it already has sufficient regulatory tools to ensure compliance without relying on a criminal offence—for instance, by revoking approvals to fly extended diversion time operations or by limiting operators’ air operator certificates.
On the wider powers gap issue in relation to criminal sanctions, the Government are aware of the powers gap. We are reviewing whether existing powers on the statute book may be able to fill the gap, and we are also considering introducing primary legislation when parliamentary time allows—I await with interest the King’s Speech on 13 May. I beg to move.
Lord Empey (UUP)
My Lords, the Secondary Legislation Scrutiny Committee, as the Minister mentioned, has looked at this and suggested that the House may wish to seek assurances from the Minister regarding the use of exemptions. In the House of Commons Delegated Legislation Committee yesterday, the Minister said:
“I can confirm that we are confident in the capacity of the CAA to manage this process effectively. I am cognisant of the points raised by the shadow Minister and the Lib Dem spokesperson about the DFT having to exercise robust oversight over these processes and to liaise closely with the CAA to ensure that it is using these powers proportionately”.—[Official Report, Commons, Third Delegated Legislation Committee, 14/4/26; col. 6.]
The issue that I wish to question the Minister on is the capacity of the CAA to handle the various applications. Will he also address the issue of the testing by companies of new products, either aircraft or drones? We know of public events where there are a large number of helicopter flights coming in—golf tournaments, for example; I do not know whether Glastonbury has a lot of helicopter traffic—and I presume that these are covered by this sort of thing.
Without wishing to see things kept overly tight, particularly when we would like to see and encourage companies to develop new products—after all, this country has a tried and tested record of innovation in the aviation sector—the question is: who is overseeing the overseers in this case? I presume it has to be the CAA and the Department for Transport, ultimately, but is there sufficient capacity? Does the Minister expect an increase in these applications, or will it be only short term? If he does, is the capacity there and is his department sufficiently well organised to oversee that process?
The issue, I presume, comes down to the definition of “exceptional”. The Minister in the other place said:
“The shadow Minister asked me to say a little more about what we mean by ‘exceptional’. These exceptions will be granted only when there is no other reasonable way for the applicant to achieve the aims that have been put forward”.—[Official Report, Commons, Third Delegated Legislation Committee, 14/4/26; col. 6.]
He went on to give some examples.
This is a fairly straightforward regulation, but whenever regulations change there is always the risk that the organisation overseeing them may not be as fully prepared as we would like. I perfectly understand the Minister’s position on the powers that have not been used; it seems that there are alternative ways of dealing with those matters without having to regulate any further.
Lord Hendy of Richmond Hill (Lab)
My Lords, I am grateful to noble Lords for their comments in this debate. The noble Lord, Lord Empey, quoted the Minister in the other place in two respects, and because he quoted him, I do not feel I need to add to either of the things that he said in this Committee this afternoon.
On the question about testing how the Civil Aviation Authority assures itself that operators are acting safely, I have faith in the Civil Aviation Authority. This would not have come forward, fundamentally, if the Civil Aviation Authority was not confident that it was capable of overseeing the changing regulations that are being proposed today. It oversees and audits approval holders and individuals granted privileges, as set out in the regulation. That includes monitoring the effectiveness of organisations’ quality and safety management systems. The noble Baroness, Lady Pidgeon, referred to the policy framework for assessing requests for exemptions, which she helpfully asked for during the briefing that she referred to. The Civil Aviation Authority will seek clear justification, demonstrating compliance with the new policy, supported by a robust and documented safety risk assessment, showing that high safety standards can be maintained.
The Civil Aviation Authority is overseen by the department through the State Safety Board, which is a formal body. In addition, my officials maintain a good working relationship with the UK’s independent regulator, the CAA, which is responsible for enforcing all the aviation safety regulations. As I say, I am very confident that the Civil Aviation Authority has the resources to carry out what this statutory instrument is seeking to do. Of course, it has the option of rejecting applications if it cannot resource looking at individuals.
I believe I have answered the point about policy raised by the noble Baroness, Lady Pidgeon. She also raised the question about reporting on actions that have been taken by the CAA. The CAA will publish details of general exemptions applied to defined classes, such as all operators involved in short-term events. It will not publish all exemptions due to concerns about exposing commercially sensitive information for technical developments. I can see the noble Baroness nodding, and I am sure that that is right, because it will also have a duty of protecting people’s commercial positions.
The noble Lord, Lord Moylan, referred to the European Union reset. These powers would only be changed if we joined the EASA, the European Union Aviation Safety Agency, which is the organisation I previously referred to. We would have to have rejoined that to make a change to these powers again. I am not aware of any proposal to rejoin the European Union Aviation Safety Agency as part of the reset, which is why we are bringing this forward today.
The noble Lord referred to the gap in powers. I already said that I am awaiting with interest the King’s Speech on 13 May. He will be aware that this first parliamentary session has been a long one, so the Government need to take the opportunity of putting forward legislation when they can. I cannot say any more about that, but I do not think that he will find that the gap in powers is quite the terrible thing that he describes.
The noble Lord lastly referred to the reorganisation of the Department for Transport. Today I have signed off an Answer to a Written Parliamentary Question from the other place. There is a reorganisation; a number of people have not moved to join Network Rail—they have moved to join DfT Operator as a precursor to the radical programme of railway reform that the Government put in their manifesto and have committed themselves to. That still leaves—and the Answer to the Parliamentary Question will say so in the other place—no less than 477 people who work on railway policy and HS2. We are not leaving the department bereft of people. I expect that number may go down over time as reform is finished, but that has no effect on the rest of the department, and there is no suggestion in that change that the department is making any change which will affect its capabilities in supervising aviation or the Civil Aviation Authority.
For any question that I have failed to answer or to which I have not given a sufficient answer, I am happy to write as soon as possible. In conclusion, the safety of aviation and the travelling public is a priority for the Government. The Government are committed to ensuring that we maintain our exemplary record for aviation safety; these regulations represent a further step in doing so. I beg to move.