Ship and Port Security (Amendment etc.) (EU Exit) Regulations 2018

Baroness Randerson Excerpts

Wednesday 23rd January 2019 Grand Committee

[Baroness Randerson (LD)]

I thank the Minister for her explanation. The EU regulations behind this provide a standardised regime of protective security for port facilities and the surrounding area, and this SI also covers inspections. It replaces the EU system with a UK system that mirrors the EU one, and in doing so, there is one crucial change: it removes the obligation to provide information to the European Commission. I am sorry to ask again: how will we co-ordinate and share information with the Commission in the future?

The SI says that the MCA will continue to carry out inspections to ensure that ships and ports meet required security standards. Can the Minister say who will set down those standards and require them in the future and how we will align them internationally so that our standards are as good as those of the rest of the world? Since this is an attempt to mirror the EU, how will the Government adapt to changes that the EU makes so that we do not put ourselves at a disadvantage with our current EU partners?

Can the Minister also say what liaison there has been with the devolved Administrations on this? It is not clear from the Explanatory Memorandum. The devolved Administrations have an important role in port administration. We do not want to confuse people totally; the idea that you would have a very different set of standards if you put into the port of Holyhead rather than the port of Liverpool would be deeply unsatisfactory and confusing. The SI gives the Secretary of State power to amend port security regulations by the negative procedure, and the Minister drew attention to that. However, perhaps I did not hear correctly or fully; could she say why the affirmative procedure is not being considered?

The EU can block amendments to the ISPS code if they might lower maritime security standards. This power is now given, in this SI, to the Secretary of State, once again by the negative procedure. We do not want to see lower standards. I am concerned about the danger that we might get out of step with the EU on the highest standards which are set by it and that we might do so simply by default. That is because the Secretary of State would exercise the power through the negative procedure and we would not be given the opportunity to scrutinise it.

This is a serious issue as regards safety and it is important that we are given the opportunity to scrutinise it. I personally would prefer the affirmative procedure, but I will listen carefully to what the Minister has to say.

[Lord Tunnicliffe (Lab)]

My Lords, once again I thank the noble Baroness for introducing this instrument. I have subjected it to my standard test: is it the minimum policy change required? I also have to admit that I did not understand the overall framework, but that is my fault. I know about aeroplanes and trains, but the sea is a mystery to me. What I have picked up from the instrument is that SOLAS with its ISPS code is an international convention. Is it the case that the international body hands down specifications and requirements that it has previously put through the EU and in the future will make directly to the UK? Are such directions and recommendations mandatory for the UK except as excepted by this instrument?

Merchant Shipping and Other Transport (Environmental Protection) (Amendment) (EU Exit) Regulations 2018

Baroness Randerson Excerpts

Wednesday 23rd January 2019 Grand Committee

[Baroness Randerson (LD)]

My Lords, we have been getting on rather swimmingly with these SIs, but I regret to say that I have rather more to say about these two, particularly the ship recycling regulations.

I start with the environmental protection SI. This is a very important piece of regulation because of the extremely high levels of air pollution from shipping. It deals with the sulphur content of fuels and anti-fouling systems, which can also be seriously environmentally damaging. It also deals with the frequency of sampling and the reporting procedures.

There is a complex description of the legal application of these powers. I am concerned that there might be a danger of the constituent Administrations of the UK getting out of step and of ship operators getting confused if the requirements vary between the UK countries in a way that they do not at the moment because of the streamlined EU system. Therefore, there is a concern that, once we leave the EU, the legislation will diverge.

Paragraph 7.3 of the Explanatory Memorandum says that where a UK project might have a significant environmental effect on an EU member state, we will continue to consult that country before granting permission. Can I please have clarification from the Minister that the consultation will be with the individual EU country and not with the European Commission?

Paragraph 7.6 refers to removing redundant references to EU databases and, specifically, SafeSeaNet, which we will no longer have access to, while ensuring that its role is replicated in the UK. How do we replicate it if we do not have access to it? How can you replicate it when we do not have access to the database? What are we replacing it with and what are the resource implications of doing that work ourselves and simply repeating what the EU is already doing? The Explanatory Memorandum states that the Welsh Government were consulted, but what about the other devolved Administrations, because some, but not all, of the provisions in the SI apply to them?

Underlying all this is the fact that we are leaving the world-leading standards set by the EU and a new limit will come into force in 2020—the Minister referred to that. It will apply to ships using the North Sea and the Channel. Will that still apply to us after we leave the EU—do the Government intend that it should apply to us? Crucially, what will happen about the Irish Sea? As I understand it, it does not apply at the moment in the Irish Sea. Will the Irish Sea be subject to the new limits? Obviously, it is a sensitive area where ships from Northern Ireland and the Republic of Ireland are sailing in effectively the same waters. Will they be subject to a different regulatory regime?

Turning to ship recycling, the EU regulation that the SI deals with is the basis for improving environmental and safety standards for recycling EU-flagged ships and has led to the creation of an approved European list. This is a very important SI, because the facilities on the list can be anywhere in the world. There are seriously environmentally damaging ship-recycling facilities in some parts of the world. The procedures they use are unsafe, with a major impact on human health. Inspecting and approving them to create a European list is an onerous and complex business with a massive cost. Are the Government seriously saying that we will repeat that inspection process, with all the onerous and costly implications?

The EU regulation also restricts what hazardous materials—for example, asbestos and PCBs—can be installed on ships and ensures that they have an inventory of such materials. The UK’s MCA, Health and Safety Executive and the Environmental Protection Agency deal with the country concerned about this. As usual in this legislation, the status quo will continue to apply at first, but this SI is different from the others we have considered this afternoon. This is not just the usual expensive mirroring of what already exists in the EU. It will be very expensive, but it is not a mirroring.

This is more than just establishing a procedure for updating, although that it is important, because this is an area where standards change and, fortunately, standards have been rising. Paragraph 7.3 of the Explanatory Memorandum specifically says that, although:

“Initially, the UK list will be similar”,


in the name of giving,

“UK flagged ships the widest choice … It establishes a new procedure allowing ship recycling facilities worldwide to apply for inclusion”.

So it is clear; there is planned divergence here and absolutely no guarantee on maintenance of standards. This is one of the first glimmers of what some hardline Brexiteers have been urging: a new world where standards are lower, and costs are lower as a result.

--- Later in debate ---

[Baroness Sugg]

I thank noble Lords for considering these draft regulations. I will attempt to answer as many questions as I am able to and will follow up in writing if I do not get to any. I absolutely agree with the noble Lord’s point that these environmental measures are needed across international boundaries. That is why we are seeing international action through the IMO, such as the higher global sulphur standard, which comes into force next year. We will continue to play a leading role in the IMO in the development of those environmental measures and also continue to co-operate with other countries on the enforcement of such measures through our membership of the Paris MoU on port state control.

We support the new global limit on the sulphur content of fuel of 0.5% on 1 January 2020. The UK, along with other states, is assisting the IMO to develop best-practice guidelines for ship owners and operators and all suppliers. Since 2015, ships inside the emissions control area—the North Sea and including the English Channel but not the Irish Sea—have been limited to 0.1% sulphur unless they use an exhaust gas cleaning system or alternative fuel. Under our recent clean air strategy, we are considering options for extending that current emission control area in the North Sea to other UK waters such as the Irish Sea. The UK’s position on sulphur standards, and the inspection regime, will not be changed by EU exit. We have committed to taking further action on that in the clean air strategy.

The standards and testing regimes for the future are agreed at the IMO—again, that will not change after we leave the EU. Other organisations such as fuel suppliers and the International Organization for Standardization will be involved in those discussions—as will the UK. There are separate EU targets for the number of ship inspections and fuel samples which member states need to take annually, and which we have retained.

The instrument provides for the continued recognition of the emission abatement methods approved by EU member states, and most equipment is approved at the IMO level. Member states are allowed to trial new and innovative technology which does not have the formal approval of the IMO; in practice, we expect most systems of emission abatement technology to be built to meet the IMO type requirements, which we would follow.

I note the question from the noble Baroness, Lady Randerson, about whether the consultation would be with member states or the Commission. The consultation mentioned in paragraph 7.3 relates to the consultation on the environmental impact of projects being consented under the Transport and Works Act, and I confirm that the requirement, where a project could impact another member state, is to consult with the appropriate authorities and bodies of the individual countries concerned, not the Commission.

On SafeSeaNet, which both the noble Lord and the noble Baroness referred to, we will continue to share data. Through the Paris MoU THETIS system, countries share data from port inspections. Currently, we send data to THETIS through the EMSA SafeSeaNet system. In a no-deal scenario, the MCA will simply send the data directly to the THETIS system. That is why we have removed references to SafeSeaNet from the regulations. We will absolutely continue to share IMO compliance information through THETIS.

The noble Lord referred to environmental impact assessments, which are outside the EU withdrawal Act. I will say a few more words about that in an effort to explain our actions. The two minor amendments being made under powers other than the EU withdrawal Act are under Section 2(2) of the European Communities Act, and the amendment to Section 6(A) of the Transport and Works Act 1992. That updates an out-of-date reference to the EEA agreement, and we need to make that correction now using the power under the ECA Act before it is repealed under the EU withdrawal Act, so these are consequential amendments.

Consultation is slightly different with the Welsh and other devolved Governments. That is because some of the regulations in the environmental protection regulations amend the transport and works legislation. That was originally made in 1992 and is applicable to England and Wales only and operates in areas which are now devolved. As such, we have been required to consult with the Welsh Government. The rest of the instrument is UK-wide but, as I said before, we are in regular contact with the Scottish Government on all SIs, including this one.

On the new UK list for recycling facilities, both the European and the UK list have the same standards on accepting new facilities and have the same criteria for approval. We expect the two lists to remain closely aligned on that. It is possible that new ship recycling standards, if the EU brought them about and the UK wanted to mirror them, could be replicated through the pollution powers in the Merchant Shipping Act.

On the question of Northern Ireland, the legislation does not make any changes in relation to cross-border requirements after we leave the EU and therefore, in a backstop scenario, there would be a UK list rather than the EU list. I believe that the backstop would apply only to the land border in this situation and there would be no impact on operations there.

We think that UK shipyards will continue to be on the European list of ship recycling facilities after we leave the EU. The noble Baroness pointed out that there were other non-EU member states facilities on the list. Turkish and US yards are listed as non-EU recycling facilities.

I think that I have covered most of the points but I will go through my response and the questions raised carefully to make sure that I have covered them all. This SI is intended essentially to ensure that the legislation on environmental protection and ship recycling continues to work effectively from day one of exit, and I hope that it will receive noble Lords’ support.

[Baroness Randerson]

I thank the noble Baroness for her comments. I will read what she has said very carefully but I remain concerned and I think I should warn her that I might raise these issues again when the regulations go before the House for approval.

[Baroness Sugg]

I thank the noble Baroness for her comments. As I said, I will go through the points raised in more detail and will write to her in an attempt to provide reassurance.

Drones

Baroness Randerson Excerpts

Tuesday 22nd January 2019 Lords Chamber

Asked by

[Baroness Randerson]

To ask Her Majesty’s Government what progress they have made towards introducing new regulations on the use of drones.

[The Parliamentary Under-Secretary of State, Department for Transport (Baroness Sugg) (Con)]

My Lords, the Department for Transport introduced legislation last year which made flying a drone above 400 feet or within 1 kilometre of an airport boundary an offence. We also introduced regulations for compulsory registration and testing for drone users, which come into effect in November. Earlier this month, we announced measures to extend the airport flying ban to include aerodrome traffic zones and additional 5 kilometre extensions from the ends of runways. We also announced new police powers to tackle drone misuse, including the ability to issue on-the-spot fines.

[Baroness Randerson (LD)]

Can the Minister explain why compulsory registration of drones has to wait until November? Why can it not happen now? The Gatwick incident demonstrated that no one really knows who is in charge. Is it the Department for Transport, the Home Office or the MoD; is it the police, the Army, the CAA or the airport itself? That is one reason why it took so long to deal with. Whose responsibility will it be the next time it happens?

[Baroness Sugg]

On the timing of the registration system, since we put the requirement into law last May, the CAA has been working to develop and build an online registration and testing system. It is of course important that we get the IT system right: we expect thousands of people to use it and we want it to be easy to use and future proof, as we expect rapid growth in the sector.

It is fair to say that many lessons were learned from the Gatwick incident. The police at the airport initially led the response, but I can certainly assure the noble Baroness that across the Ministry of Defence, the Home Office and the Department for Transport, we will continue to ensure that we react rapidly to future incidents.

Brexit: Cross-Channel Transport

Baroness Randerson Excerpts

Monday 21st January 2019 Lords Chamber

[Baroness Sugg]

I agree with my noble friend. It is essential that we continue this contingency planning. The key local stakeholders in that case, in particular Kent Police and Kent County Council—we are also working closely with the Kent Resilience Forum on this—obtained the test results they wanted and were satisfied with the outcome, with Kent County Council describing it as a really helpful exercise.

[Baroness Randerson (LD)]

My Lords, Eurotunnel alleges that the Department for Transport’s agreements with the ferry companies compromise its contract with the Government. In reply to my Written Question, the Minister denied that but did not give any reason for that denial. What assessment have the Government undertaken of the impact on the Channel Tunnel of additional ferry services which, unlike existing ferry services, will be subsidised by the Government?

[Baroness Sugg]

My Lords, as you would understand, we have received numerous representations about the contract—not surprisingly, given the urgency of the procurement. We consider the contracts to be entirely consistent with the Government’s agreement with Eurotunnel. The contract was awarded under the procedure provided for in Regulation 32 of the Public Contracts Regulations 2015, which implement the EU requirements. As the noble Baroness would expect, we are also working closely with Eurotunnel on plans for when we leave the European Union.

Railway Services: The Pennines

Baroness Randerson Excerpts

Thursday 17th January 2019 Lords Chamber

[Baroness Sugg]

I thank the noble Lord for his question. We have a new approach to rail enhancements—the rail network enhancements pipeline—which is following lessons learned from previous commitments. We are studying each of these cases carefully. I am not sure about the specific line to which the noble Lord refers, but I will certainly follow that up and write to him.

[Baroness Randerson (LD)]

My Lords, the Secretary of State blamed the trade unions for the excessive fare rises at the beginning of this year, but across northern England, as elsewhere, last year passengers had a very poor deal. It was caused by a lot more than trade union action alone. Will the Government consider using a fare freeze in future years for companies that fail to deliver a decent service, as they have promised?

[Baroness Sugg]

I agree with the noble Baroness that the passenger services provided to many parts of the railway system last year were not acceptable. We are working hard to improve them. I know that passengers who have experienced significant delays will be frustrated with rising fares, but we need to be fair to taxpayers as well as passengers; unlike the special compensation scheme we have introduced, which is funded by industry, it would be down to taxpayers to make up the amount if we froze fares. We think that introducing compensation schemes funded by the franchise companies is the best way to target those most affected.

Seaborne Freight

Baroness Randerson Excerpts

Tuesday 8th January 2019 Lords Chamber

[Baroness Sugg]

I thank the noble Lord for his question. As I said, 90% of the contracts were awarded to established operators. With Seaborne, the proposal was subject to technical, financial and commercial assurance as part of a standard due diligence procedure consistent with that undertaken on all government contracts. Our contractual arrangements with Seaborne clearly reflect its status as a new ferry operator, and it is obliged to meet a number of stringent time stage requirements to demonstrate that it can provide an effective service, with break clauses in the Department for Transport’s favour if it fails to meet them. I reiterate the point that no taxpayers’ money will change hands unless these services are provided.

[Baroness Randerson (LD)]

My Lords, from my ministerial experience, I recall that the usual due diligence process involves ensuring that the company has appropriate experience—Seaborne has none—and that it is financially secure. I wonder who its shadowy financial backers are. It also requires directors to be of good financial standing. Can the Minister tell us whether the unpaid tax bill of the managing director’s previous company, which went into liquidation, has now been paid?

The Statement refers to three very reputable companies which are supposedly involved in the due diligence process. Can the Minister assure us that all three signed off on the awarding of this contract, and if one or two of them did not, can she tell us which? Have the Permanent Secretary for the Department for Transport or the director asked for written ministerial direction in this case?

Finally, has Seaborne now signed a contract with Ramsgate and Ostend ports? On 3 January they had not even done that, let alone begun building or requisitioning the ships. Clearly no one looked properly at the company’s website—unless, of course, they were wanting to order a pizza.

Drones: Consultation Response

Baroness Randerson Excerpts

Monday 7th January 2019 Lords Chamber

[Lord Tunnicliffe (Lab)]

My Lords, I thank the Minister for her repetition of the Statement. I see it promises further action but unfortunately when I look at the detail I see no clear action specified, except the five-kilometre rule. It seems to me it merely says that there will be more meetings and discussions; there is no specific action in the Statement.

Does the Minister accept that the Secretary of State has a personal responsibility for the safety of operations, particularly at Gatwick, Heathrow and the other major airports? The whole concept of a good safety environment is where one individual can be held personally responsible. In the case of aviation, we have several safety systems but, at the end of the day, somebody has to be responsible. Is it her view that the Secretary of State has this personal responsibility? Does he also have a personal responsibility to the many passengers disrupted because of this incident? I believe that in excess of 100,000 passengers had their travel disrupted by this event.

The present regulations in relation to 400 feet and one kilometre are pathetic. When I was both a private and a professional pilot, if I got within one, five, 10, perhaps even 15 kilometres of Heathrow or Gatwick without direct permission to do so, I would have been prosecuted, paid a hefty fine and had my licence removed. The idea that a kilometre is of any value is absurd, and there has to be a serious question mark over five kilometres.

I note that the Statement acknowledges the wider challenge with prisons and infrastructure, and I am pleased that account will be taken of that—but we have known about this risk for many years. I believe there was an incident at Gatwick as far ago as July 2017 and BALPA, the pilots’ union, has been pointing out the potential hazards of drones for a number of years. Why was there not a plan? Why was there not legislation? The noble Baroness and I spent many happy hours together at the beginning of 2018. We did space; we did ATOL; we did vehicle technology; we did lasers. There was every opportunity to squirrel some legislation on drones into those Bills, and indeed I made an informal offer to her predecessor that we would co-operate if the Government had something to bring forward. Some basic legislation could have been introduced.

Is it the DfT’s view that Gatwick Airport Ltd met its responsibilities? Does it not have a general responsibility for the safety of its passengers? Does it not have a general responsibility to plan in some depth for when things go wrong?

For part of my career, I was responsible for the passengers on the London Underground. We would respond to any risk by making plans immediately to see how we could mitigate those risks and then we would develop those plans. The mitigation, where practical, would be introduced straightaway. Indeed, in the early 1990s we developed plans to evacuate the Underground very quickly. When in 1992 we found incendiaries on trains, we were able to get the people out within something like 10 minutes. I have to admit that we did not have a plan to then restart the Underground, and it was not a good day for our passengers—but at least they were alive and well. Does the Secretary of State accept that he should have had in place, or caused to be in place, a plan? Does he accept that, if a plan does not exist, it should now?

I assume that the new powers will increase police activity and responsibility. Will there be sufficient police resources to make this practical?

The issue of drones has been with us for years, and in my view it has been handled chaotically. This is symptomatic of the whole of HMG at the moment. When will this Government get a grip?

[Baroness Randerson (LD)]

My Lords, at last we have some sort of response from the Government on the issue of drones, which, as the noble Lord emphasised, we have discussed repeatedly and urged the Government to take action on. The only positive thing that can be said about the Gatwick incident is that it involved massive economic and personal disruption but not death or injury, which it could have.

There are now millions rather than thousands of drones in the UK. The Gatwick incident ruined travel plans for 140,000 people. In 2017, there were 93 near misses between drones and planes, and 3,500 incidents involving drones were reported to the police, concerning people’s safety and their privacy. These are large figures: this is not a marginal activity. It paints a picture of a big problem, but the Government have been horribly complacent and have dithered and delayed. The consultation that the Minister referred to finished in September, but we have the response only now and—if I dare suggest it—had we not had the Gatwick incident, I do not think it would have come out now.

I understand that action was deferred because of the pressures of Brexit, but the Government have allowed themselves to be distracted from a very important issue. The new regulations that were introduced last year proved in the Gatwick incident to be inadequate, ineffective and unenforceable. The police clearly did not have the right equipment, and I suggest that the dramatic tension of the Gatwick incident turned to farce when the police suggested they were not even sure that there had been a drone, or that it could have been their drone that people were seeing.

The Government’s proposals today are welcome, but they are far too vague. We need action beyond legislation because, as the noble Baroness said, the legislation—whatever it was—was ignored. I would like to press the Minister on the timescale for these proposals. When does she think new legislation will get through this House, given the very crowded schedule?

The Gatwick incident indicated that both the police and the Army did not have the right equipment to hand to deal with drones. That is despite the fact that some of the equipment we are talking about was invented and manufactured in Britain. Will the Minister assure us that this equipment is now being rapidly rolled out to both the police and the Army? I read that it is being purchased by airports but it is important that the police and the Army carry out the appropriate exercises so that they know how to respond—they clearly did not know how to respond prior to Christmas. Obviously, that will require additional resources. I would like some reassurance from the Minister that the Government will provide those.

For satirists, the Department for Transport is the gift that keeps on giving. Over the Christmas break alone, we had the ferry company with no ferries, the drone incident with possibly no drones and today we had the traffic jam with not enough lorries. The Secretary of State said on television with unconscious irony before Christmas that the drone incident was the first time this had happened in the world and the first time there had been disruption for days at an airport. That is because the action was not taken, because the equipment was not there and the police and the Army were not prepared. It is not the first time that a drone has disrupted an airport across the world. Unfortunately, this was our world first and it is not one that we want to see repeated.

Gatwick Airport

Baroness Randerson Excerpts

Thursday 20th December 2018 Lords Chamber

Tabled by

[Baroness Randerson]

To ask Her Majesty’s Government whether they will make a statement on the disruption at Gatwick airport caused by drone activity.

[Baroness Randerson (LD)]

My Lords, I beg leave to ask a Question of which I have given private notice.

[The Parliamentary Under-Secretary of State, Department for Transport (Baroness Sugg) (Con)]

My Lords, the disruption caused by these drones is extensive, and it is an ongoing operation. We are in close contact with Gatwick Airport as it works with the police to resolve the situation safely and as quickly as possible. These drones have been flown illegally and anyone endangering an aircraft could face up to five years in jail.

[Baroness Randerson]

My Lords, this incident has illustrated the frightening ease with which drone users can inflict massive damage on our safety, our security and our economy. It is Christmas, and thousands more drones will find their way as gifts into the hands of untrained, unregistered users. Will the Minister commit to introducing proper, stringent controls on drones early in 2019? I realise that the Government are very busy with Brexit, but this incident illustrates the importance of other aspects of our national life. Do police consider this incident to be an act of terror or simply one of criminal irresponsibility? Whichever of those it is, all airports are clearly now at risk. What steps are being taken to prevent a repeat, copycat attack?

[Baroness Sugg]

My Lords, I entirely agree with the noble Baroness that we need to introduce new laws to ensure that drones are used safely and responsibly. Earlier this year, we introduced a law which makes it illegal to fly a drone within a kilometre of an airport and above 400 feet. In November next year, we will introduce a registration system which includes a mandatory safety check before a person can fly a drone. As I said, these drones are being operated illegally. I am afraid that I am not able to give a further comment. It seems that the drones are being used intentionally to disrupt the airport, but, as I said, this is an ongoing investigation.

Operation of Air Services (Amendment etc.) (EU Exit) Regulations 2018

Baroness Randerson Excerpts

Tuesday 18th December 2018 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted that this little debate has been called. I declare my interests at the outset, as a former transport spokesman in the European Parliament and a one-time rapporteur on a civil aviation report. Subsequently, I was a spokesman in the House of Commons for the Conservatives when in opposition.

I would like to put a number of small questions to my noble friend the Minister today. The House has been particularly well served by the Secondary Legislation Scrutiny Committee’s report on these regulations, which raised a number of policy issues that need to be addressed. I must say that I find the amendment to the Motion that the noble Lord, Lord Foulkes, has put before the House quite attractive.

My question relates to the implications for air service agreements with the EU and the EEA. There is also a broader question which does not seem to have been addressed in these regulations which I know is causing great concern. I omitted to say that at the time I married my husband he was an airline executive and is now in receipt of a pension from Delta Air Lines. I have not consulted him on my notes today, but perhaps it would have been better to have done so.

American carriers are concerned about cabotage and their right to fly internally within the EU. We are currently part of the common travel area. Will my noble friend address what happens when the United Kingdom leaves the European Union on 29 March regarding the fourth and fifth freedoms and US and other international carriers? That does not seem to be addressed in this regulation, but I know it will be exercising many of the airlines at this time.

Page 4 of the Secondary Legislation Scrutiny Committee’s report raises a number of issues and I think the House will take a great interest in the Minister’s reply. Paragraph 16 states:

“In the event of no agreement, EEA airlines will now also need to apply for a foreign carrier permit to operate in the UK”.


As suggested, I would like to press the Minister about the basis on which these expectations are founded and what co-operation and negotiations she is having with EU carriers to ensure that the necessary permits will be in place before 29 March so that there is no gap in aviation post Brexit. How long does the Minister think it will take to apply for these permits? What cost will there be to the airlines in this regard? Will she take this opportunity to correct what I hope are incorrect newspaper reports over the weekend that passengers are being told not to fly after 29 March next year because it is all too difficult to know what rights will be in place and what permits will be required for passengers to apply for visas or permits to travel?

I would also be grateful for a response from the Minister on this question. When she referred to the current wet leasing arrangements, she said that this will be in relation to reciprocity. How will this carry on after 29 March, particularly as it is understood that carriers may not benefit from the current arrangements once we have left the European Union?

The amendment to the Motion tabled by the noble Lord, Lord Foulkes, asks for UK membership of the European common aviation area. Does my noble friend have a date for the application that we intend to make to that area?

I shall conclude with a general point. I understand that these regulations might have been put forward as a draft negative, in which case I am not sure that we would have had the chance to consider them. If that is the case, the House was given a very clear understanding during the passage of the EU withdrawal Bill that no policy should be decided by secondary legislation and that all policy should be decided by primary legislation. My fear is that the statutory instrument before the House today is getting perilously close to determining policy. I hope that the Government will put down a marker that when it comes to other Bills, such as the Agriculture Bill and the environment Bill, no policy will be applied through regulation but will be in the Bill. When we were in opposition that was always our very clear understanding.

[Baroness Randerson (LD)]

My Lords, I can well understand the sense of frustration that led the noble Lord to table his amendment. Indeed, “sense of frustration” is a massive understatement. The chaos which has prevailed in the Government for more than two years has turned lately to a deliberate intention to frustrate the will of the people and a determination to stifle debate in the other place and run down the clock to a point where MPs will be denied any meaningful vote. The chaos is not helped by the antics of the leader of the Official Opposition, to whom we would normally look for some guidance. A completely blank space is there, so it is good to see the spirit being shown here by the noble Lord, Lord Foulkes.

I was in Brussels at the weekend—I go there frequently for family reasons. I talk to people who live there, both British and many other nationalities. Over the months, I have noticed their sense of sadness turn to irritation and then to frustration; now, they are almost laughing at us, because of the chaos we are in. They are doing it with great sadness, because they have always looked to the British as the people who would get on with it and make the sensible decisions.

Last week, the EU Sub-Committee on the Internal Market, of which I am a member, reviewed the evidence that we had a year ago from representatives of the aviation industry. Then, they had brushed aside the possibility of a no-deal Brexit when we put that question to them as simply not a likely scenario or not credible. They also stressed the need for their industry to have the deal done by the end of August or September this year at the latest. We are now 70 working days away from 29 March. We are asking our businesses and our industries, and not just the aviation industry, to do an impossible job. Unless we just carry on as we are, it is too late for them to prepare for any change in situation.

This SI is part of the Government’s rather pathetic preparations for a no-deal scenario. When we discussed it in Grand Committee a couple of weeks ago, the Minister still managed to sound pretty confident, but a lot of plans have come unstuck since that time.

In Britain, we have the third largest aviation industry in the world. We are a nation that loves to travel and we have a highly competitive aviation market based largely on cheap air fares. If there is no deal, UK and EU airlines will lose the automatic right to operate services between the UK and the EU without the need for advance permission from individual states. The Minister told us that the Department for Transport expects to grant permission for EU carriers to fly to and from UK airports and for that to be reciprocated by other countries in the EU. However, a more recent report of the Secondary Legislation Scrutiny Committee on another, related SI—the draft aviation safety regulations—indicates that the European Commission has confirmed that licences, certificates and approvals issued by the CAA before 29 March will no longer be automatically accepted in the EASA system by other EU countries after exit day. The DfT’s hope of mutual recognition after a no-deal Brexit may be overoptimistic.

One thing is for certain: the CAA will have to shoulder many more responsibilities, some of which are set out in this SI, in the other SI to which I referred and beyond. We will have to consider those other SIs in future. Can the Minister explain to us in detail what additional resources have been given to the CAA already and what more resources the Government plan to give it in future?

Operation of Air Services (Amendment etc.) (EU Exit) Regulations 2018

Baroness Randerson Excerpts

Wednesday 21st November 2018 Grand Committee

[Baroness Randerson (LD)]

My Lords, when I put forward my Private Member’s Bill—excitingly entitled the Open Skies Agreement (Membership) Bill—immediately after the last election it never occurred to me that, nearly 18 months on, my concerns would still not have been answered. My concerns related to the international air agreements that make international air travel possible. We are members of those agreements by virtue of our membership of the EU. The sad, chaotic situation that the Government have got themselves into in their Brexit negotiations is threatening many people’s plans for the future and threatening companies’ ability to trade in the future, because they cannot rely on air services.

This SI in preparation for a no-deal scenario is far from reassuring. Rather, as the noble Lord, Lord Foulkes, said, it reminds us all of what is at stake and how far we are from a solution. The report of the Secondary Legislation Scrutiny Committee points to a number of unanswered questions. I am grateful to the committee, as I am sure we all are, for its work and I am glad that the Explanatory Memorandum has been updated. Being rather a keen student, I read the original—even the updated one has a lot of complexity and leaves a lot of questions unanswered, but the original one was not as good as it should have been. If there is no deal, UK and EU airlines will lose, as the Minister said, the automatic right to operate services between the UK and the EU without the need for permission from individual states.

The DfT has stated that it expects to grant permission for EU carriers to fly to and from UK airports and expects that to be reciprocated. That is a lot of expecting. What discussions have the Government already had? The Minister said that a lot of work has been done on it, but are we in a position where the whole thing could be more or less rubber-stamped if Brexit arrangements were sorted out? Would everything else slot into place quickly, or are we at an earlier stage in the process? If there is no deal, the Government have said that they intend to make bilateral agreements with individual states. These would obviously need to be in place by the end of March if there is to be no gap in services. It might not be technically possible to sign them until that day, but they have to be fully agreed and worked up. Specifically, what progress has been made so far in these draft agreements on developing the understanding with the other 27 EU countries? Are we negotiating with all the rest of the EU as individual states or just taking the most important ones in terms of the level of traffic?

These regulations are yet another example of the steady increase in the amount of bureaucracy that is being heaped on individuals and companies as a result of Brexit. Last week—or was it the week before?—we were here discussing hauliers permits, trailer registration and international driving permits. This week it is the requirement for UK licensed air carriers to have both a route licence and an operating licence to provide services outside the UK. Although the DfT has been proactive in contacting carriers about this and we can therefore, I assume, count on the fact that air carriers across the EU are aware of it, and although awareness is clearly higher than in the case of the hauliers, who are largely completely unaware of what is going to hit them very soon, nevertheless it puts an additional burden on the airlines, as well as putting further responsibility on the CAA. I have remarked here before on the burden on the CAA of a wide group of responsibilities. We expect it to deal with space travel and failing airlines and to modernise airspace, and now we are expecting it to provide additional licences for air carriers. Can the Minister give us details of the additional resources being allocated to the CAA to deal with the more complex air services market that we will now face?

If there is no deal, all foreign carriers, including those from the EEA, will have to apply for a foreign carrier permit. Already the CAA processes thousands a year, but clearly it will have to process very many more in the future. What happens if a carrier does not apply? The DfT says that it expects EU carriers to make applications in good time, so what is the timescale? Using a parallel with haulage permits again, we discussed this not much more than a week ago. The hauliers have to apply by the end of the month, or certainly the beginning of December, in order to have a hope of getting their permits by January. There is a huge rush in that case. Is the system similar for the CAA? Is it fully geared up and are the airlines all ready to apply?

[Lord Berkeley]

Does the noble Baroness agree that the system for selecting who gets the permits for haulage that we discussed, as she says, a couple of weeks ago involves either drawing names out of a hat or seeing which haulier provides the best value for money for the country? Does she see that as an appropriate way of dealing with these air licences?

[Baroness Randerson]

My disappointment with the SI that we had a week or so ago was definitely with the lack of certainty about which criteria the Government would use. The Government adroitly managed to give themselves the broadest possible set of criteria and we are no nearer knowing how exactly those permits will be applied. The industry is worried as a result.

There has already been a degree of reorganisation within the aviation industry as airlines previously registered in the UK have moved abroad for their registration, with the inevitable drift of at least some jobs abroad. It is important that we bear in mind that this additional bureaucracy—the additional requirements as a result of Brexit—will put our expertise in such an important aviation market at a disadvantage.

The Secondary Legislation Scrutiny Committee raised the issue of wet leasing, which, as the Minister explained, is when an airline releases an aircraft and its crew and so on. This is usually done at busy times or in exceptional circumstances. If the aircraft is not registered in the UK, the airline has to satisfy certain safety criteria. The airlines are concerned that this should be the subject of a reciprocal agreement with EU countries. Can the Minister explain what progress the Department for Transport has made in its discussions on this?

Public service obligations apply when a service would be uneconomical but is needed for economic and social reasons. They usually apply to far-flung places such as the Scottish islands. In future, such services could be operated by UK carriers and by others with cabotage rights—although, to be honest, that would be unlikely with no deal. These are sensitive and complex issues of state aid. As someone from Wales, I know that there has been a long debate on why rights are granted on some Scottish routes but similar rights were not granted in Wales. Could the Minister give us a little more detail on this?

State aid rules were previously adjudicated by the European Commission. This is a complex and controversial area, but the distance of the European Commission in power terms from the decisions that it made neutralised the issue to a large extent. Those powers will now be given to the CMA. What resources will it be given to deal with this? I also warn the Minister that those things are likely to become much more sharply controversial.

Paragraph 7.10 of the Explanatory Memorandum deals with the allocation of scarce capacity. The 2007 regulations dealt with air service agreements between EU members and third countries. Scarce capacity occurs when there are restrictions on the frequency of flights. The Explanatory Memorandum includes a political declaration that the UK Government will always seek to lift or remove such a cap but will hold a hearing to allocate frequencies if that is not possible. What is the legal force of that statement? It seems that it is simply a political declaration. It is a statement of intent by the current Government, but they cannot bind their successors. I would like some clarification on that.

Finally, it would be helpful, as we sit here week after week wading our way through dozens of these SIs, to be able to see the full context of where we are on air services. Maybe the Minister can tell us what other air services SIs we are waiting for.

[Lord Rosser (Lab)]

I thank the Minister for explaining the purpose and content of these regulations, which set out the contingency measures for the licensing and oversight of flights to and from the UK in the event of no deal with the European Union. UK carriers will require a route licence, as well as the operating licence that is currently required under EU law, for operations beyond the UK. Air carriers from the European Economic Area will also have to obtain a foreign carrier permit to operate in the UK.

In the event of there being no deal with the European Union, UK and EU airlines will no longer have the automatic right to operate air services between the UK and the EU without the need for advance permission from individual states. In this scenario, the Government expect to grant permission to EU carriers to operate to UK airports and for this to be reciprocated by EU states granting permission to UK air carriers to operate to points in the EU. Failing such a multilateral agreement, the Government’s intention would be to seek bilateral arrangements with individual states. I know that this point has been raised before but I raise it again: why do the Government believe that such bilateral arrangements between the UK and individual states could actually be put in place in the short time left even between now and 29 March 2019, let alone between early or mid-December and the end of March 2019?

--- Later in debate ---

[Baroness Sugg]

Our first point of contact is with the EU Commission to agree a wider deal. It has been widely reported that the Secretary of State has written to other member states to discuss the potential bilateral agreements. We are working very hard to get that wider deal. That is our focus but, should that not happen, then of course we are making sure that we are as prepared as possible to ensure that we do not have any disruption in services come 29 March.

[Baroness Randerson]

I made the point that our worldwide agreements on air travel are made as a member of the EU. So we have to be convinced that we will have an agreement with the rest of the world beyond the EU by the end of March. How are these negotiations going, for example with the USA?

[Baroness Sugg]

I will come on to that. As the UK, we have 111 bilateral agreements with the rest of the world in our own right. The noble Baroness is quite right to point out that we have bilateral agreements through our membership of the EU.

The next issue raised was on the basis of our expectations, how we are working with EU carriers to make sure that we have no gap in services and the assurances we can give that the CAA has the capacity and resources in place. Our expectation is that EEA carriers would require advance permission before operating to the UK. This is founded on international law. I already spoke about the 1944 Chicago Convention and that that treaty expressly prohibits scheduled international air services.

In anticipation of the increased volume of permit applications from EEA carriers, the CAA has already upgraded its systems for permit processing and recruited additional staff. All scheduled permits are issued on a seasonal basis. The next summer season starts on 31 March 2019, so there is a predictable increase in workload for this. We are expecting 100 to 150 seasonal permit applications. The CAA currently issues around 3,000 ad hoc permits a year. It is preparing to be able to process at least double that if necessary.