Air Traffic Management and Unmanned Aircraft Bill [HL]

Lord Balfe Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Thursday 21st January 2021 Lords Chamber

[Lord Campbell-Savours (Lab) [V]]

My Lords, we have heard a very powerful case from the previous speaker. I see no reason for me to detain the House unreasonably and will speak briefly, principally to Amendment 15. My concerns in Committee centred on what I saw as the need to isolate potentially irresponsible non-commercial users of drones from those who, for perfectly legitimate reasons, seek to exploit commercially this new and innovative use of the technology.

During the debate on 27 January last year, I raised the issue of the confiscation of equipment. On 12 February, I raised the same issue, in particular where rogue operators breached the rules. There has to be a procedure in place which more clearly separates and differentiates the potential rogue operator from the legitimate commercial operation. Fines are too often no deterrent. We know from government stats that there is a high incidence of non-payment among those who have little respect for the law. We need a separate, more vigorously enforced regime for rogue drone operators. We cannot treat CAA-authorised operations in a way which appears similar to that in which we treat recreational users.

The danger in the Government’s approach is that the recreational user will be the beneficiary of the developing, lighter-touch regime that will ultimately and inevitably have to apply to commercial drone operations. This is inevitable as commercial operators exert increasing pressure for the introduction of such a regime to protect commercial viability. Alternatively, if this does not happen, commercial operators will be penalised by the more vigorous approach that will inevitably have to apply to the recreational user. The systems proposed are flawed.

The noble and gallant Lord, Lord Craig of Radley, has valiantly sought to convince the department and Ministers of the dangers, but has received little reassurance to date by way of response. The noble Baroness, Lady Randerson, can clearly see the writing on the wall and therefore seeks a review of the new regime at a later stage. She is to be congratulated on the persistent way in which she has pursued these matters over a number of years. Either way, the system when tested will need to be reviewed. We need two, distinct sets of rules and regimes; a separate regime that is fair to all.

[Lord Balfe (Con)]

My Lords, I remind the House of my role as president of BALPA. I thank the Department for Transport for its constructive engagement with officers from BALPA in getting this far—goodness knows, we have spent a long time getting this far with this Bill.

I agree with the noble Lord, Lord Campbell-Savours, that rogue drone operators are clearly very different to the responsible drone operator that we wish to deal with. However, I am not sure that supporting this amendment is the right way forward. The Bill is not the right vehicle to include a requirement to review unmanned aircraft legislation. It cannot just be left to the CAA, as has been suggested, because if there were a major incident, government would be expected to have a role and to respond. At the same time, the development of drones is proceeding at an enormously fast pace. Will the Minister reassure us that a system of regular review will be put in place?

The serious concerns of BALPA are not limited to where we are today but look to where we might be tomorrow. We hear, for instance, about the problems with multiple use of drones, where one person controls more than one drone. The first instinct is to say, “That’s terrible, isn’t it? We really should have only one person per drone,” but let me put another scenario to the House. If someone is lost at sea, or there is an air crash, you may well want to have a swarm of drones covering a wide area. For that to be effective, you would need one central person to be in control so as to investigate what was beneath, and being observed by, a number of drones. It is not quite as simple as some people seem to imagine.

I would like the Minister to assure us that there will be a regular review, and that she will come back to the House at an appropriate time, possibly in answer to a Question, or put something in the Library, outlining the principles which could follow that review. It is no good saying that we want one every five years or every two years; we need to be able to respond fairly quickly to matters as they come up. I will certainly not be supporting a Division, as passing this clause would not take us forward at all. However, my hope is that some of the principles contained therein are the sort that should be borne in mind in developing the policies that we want to see for the effective and reasonable control of drones, commercially and privately.

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In summary, without Schedule 11 and without these amendments to it, it would not be possible to ensure that the enforcement of secondary legislation relating to UA remains fit for purpose, especially in light of new and often rapid developments in UA technology and its possible misuse in the future. To reiterate, despite this looking like a large quantity of amendments, there is no change to policy intent. The changes are necessary because of the changes to the underlying regulations and the retained EU law and to the ANO. I beg to move.

[Lord Balfe (Con)]

I am speaking to this general set of amendments, but I want to speak particularly on disabled safety features on drones. The Bill should make it illegal to fly a drone if any safety features are inoperable or have been disabled. My noble friend Lord Whitty tabled an amendment to this effect in Committee. The Minister’s assurance then was that the safety feature that could be referred to would be electronic conspicuity, the disabling of which would be covered under other provisions. That, we believe, is not the case. Lights, geo-awareness and geo-fencing, software functions that limit altitude, remote ID and various redundancy measures could all be covered under this provision. There are technical requirements for certain systems whereby the user cannot modify them—for example, data associated with remote ID. However, this does not protect against deliberate hacking or intentional disabling of systems. A provision that makes these acts illegal is therefore relevant.

BALPA has engaged directly with staff at the DfT on this point and we are grateful to the Minister’s officials for doing so. We note that the Government believe that sufficient safeguards are already available in the Air Navigation Order to cover this matter, but, overall, we still believe that a specific and separate offence should be created in the Bill. I make these points for the Minister to take on board, as it is highly likely that this sensible and proportionate amendment may be urged when the matter is considered in the other place. I hope the Minister can take this back to the department and reflect on it as the Bill proceeds further.

[Lord Tunnicliffe (Lab) [V]]

My Lords, I start by congratulating the Minister on her spirited 12-minute speech, which covered all these amendments.

In the heady days of the 1960s, I went to university for three years. Her Majesty was good enough to teach me to fly in the Royal Air Force. At university, I ran the college bar and happened to get a maths degree. It was useful training, which led me into an airline career. Running the college bar gave me first-hand experience in line management, and I am afraid that the only effect of the maths degree was to make me even more pedantic than I was naturally.

Accordingly, when the Minister was kind enough to send a letter setting out these amendments and where they were, I read it and alighted on some of the words used. She wrote to clarify that these were “largely” technical changes, saying that it is important to note that these amendments, if accepted, will not change the policy intention of the Bill and are, “in most cases”, just making minor but essential changes. Either the words are careless, and the changes are wholly technical—though I believe that there is no such thing in most cases—or some of these amendments are not technical in nature. In her response, can the Minister tell me which of these many amendments is not a technical change but has some substance? Or can she assure me that the words “largely” and “in most cases” should have been omitted from her letter and that all the changes are technical?

I ask for this assurance because we do not have the resources to work through such a large number of amendments. We made an attempt—and I commend our adviser, Ben, who worked through them. He could not find anything that was not minor and technical, but I would value the Minister enlightening me and satisfying my pedantic approach.

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[Lord Tunnicliffe (Lab) [V]]

My Lords, Amendment 22, in simple terms, allows an appropriate authority to destroy a drone. The Minister has been kind enough to debate this at some length and wrote me a letter on 11 January setting out three points. First, legally, the power to destroy a UA already exists. Secondly, operationally, destroying a UA is not generally desirable. Thirdly, existing technology is such that destroying a UA is often unnecessary. I am not being pedantic here, but the words in the last two points, particularly, are of a partial kind. The Minister does not really need to debate reasons two and three with me. When it comes to the third, I know that “existing technology is such that destroying a UA is often unnecessary”, but it may be necessary. I accept that, “operationally, destroying a UA is not generally desirable”, as all sorts of second-order effects would have to be taken into account. Nevertheless, the only point I wish to debate is that, “legally, the power to destroy a UA already exists”. In her response, I would like the Minister to convince me of that.

I am aware, through my previous responsibilities, of the impact that can be made with two kilos of Semtex. The potential for a determined terrorist to use a UA for malicious terrorism is real. Such a terrorist coming from a sophisticated organisation would, of course, not have a drone with all the protective devices that a commercially applied drone has. The Gatwick incident showed that the police were then powerless, probably for technical reasons, to stop massive disruption taking place by the use of a drone. It seems to me that if a serious terrorist-like incident were developing, one would want a clear power for the authorities to destroy a drone. The burden rests with the Minister to convince us that the powers that exist are genuinely sufficient to make sure that the authorities, in appropriate circumstances, could destroy a drone in the interests of safety and limiting damage or massive destruction. I beg to move.

[Lord Balfe (Con)]

My Lords, I will not detain the House for long, but this is my application to join the pedants’ club, which was advertised somewhat earlier.

The amendment says

“insert ‘destroy the aircraft or’”.

The clause would then read:

“The constable may destroy the aircraft or require a person to ground the aircraft”.


I thought that this was a sort of “Derbyshire Constabulary amendment”, where they go chasing round after people—a constable cannot destroy an aircraft. What would we have? Would we have Derbyshire police with a popgun? I am afraid that it just will not work.

I can see what is meant but I can also see that we need to think this through a bit more thoroughly, particularly the attendant risks that might arise. The power conveyed in this Act could almost certainly be incompatible with the European Convention on Human Rights. I speak as a long-standing alternate member of the Council of Europe, and, indeed, as someone who was for some time a chair of its committee on implementation of judgments of the court. Even if the wording were sound, I am not sure that the principle is. You would need a proper judicial process in order to destroy a drone, and you would not be able to do it as an either/or—we will either destroy the drone or make you land it and then we will talk to you. I suggest that the amendment is well meaning but, unfortunately, defective.

[Baroness Randerson (LD) [V]]

My Lords, destroying a drone or an unmanned aircraft is a vital mechanism, particularly for dealing with terrorism. The incident at Gatwick at the end of 2019 illustrated for us all that dealing with an intruder drone is a highly complex issue. I invite noble Lords to think back to that and to the discussions that took place in the media, and, much more importantly, behind the scenes, on exactly how to deal with a drone that was causing millions of pounds of economic damage. It was damaging the economy and causing huge individual damage to those unable to fly, yet people were paralysed into inactivity, not least because there was a lack of certainty about powers. There was also a lack of certainty about the ability to destroy the drone effectively and the safety of doing it. All those things were being taken into account.

However, there would be circumstances where destroying a drone would be the simple and clear answer to a threat. I welcome this as an interesting, probing amendment. Like the noble Lord, Lord Tunnicliffe, I shall listen carefully to the Minister.

Going back to the Gatwick situation, I remind noble Lords that days were spent deciding how to deal with that drone. To this day, we do not know who was flying it. Therefore, the situation was never satisfactorily resolved.

Covid-19: Aviation Sector

Lord Balfe Excerpts

Monday 5th October 2020 Lords Chamber

[Baroness Vere of Norbiton (Con)]

My Lords, the Chancellor recently announced the winter economic plan, which included extensions or adjustments to support for the sector which is already in place, so the Job Support Scheme comes online on 1 November and there is extension to the loan schemes. There are plenty of ways that airports can get support, and in the very final instance they could look at the Birch process but, of course, in those circumstances all other potential sources of finance must have been exhausted.

[Lord Balfe (Con)]

My Lords, I draw attention to my entry in the register. Bearing in mind the need to keep the pool of pilots currently being made redundant available for the future upturn, and bearing in mind the need for their qualifications to remain current, could the Minister tell me whether discussions her department has been having with interested parties are likely to include a sympathetic view of the need for flexibility in ensuring that measures are put in place to maintain the qualifications of pilots, including the possibility of retraining grants?

[Baroness Vere of Norbiton (Con)]

My Lords, in conjunction with my department, the CAA has issued a number of regulatory exemptions to help support pilots through the Covid-19 period. These exemptions provide an extension to the standard validity period of licences and ratings, but subject to some conditions. Alongside this, of course, we are looking at the recovery phase for the sector and are doing a lot of work in this area. One of the workstreams for the recovery phase is skills and workforce, and we will bear in mind what my noble friend had to say.

Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020

Lord Balfe Excerpts

Wednesday 8th July 2020 Lords Chamber

[Lord Balfe (Con) [V]]

My Lords, in the beginning it was very simple: stay at home and save lives. However, as time has gone on, good behaviour fatigue has set in and that is where we are now. First, as has been pointed out by a number of speakers, the regulations are confusing because they vary between different countries, so my first point is that we need to keep it simple. If the three devolved Administrations and the UK Government cannot get an agreement, frankly, we are in a pretty poor situation.

Secondly, we also need to get some idea of whether or not this is the right policy. I suggest, as I always do, that we should talk to our European colleagues, who seem to have a mass of different ways of dealing with this, to see if there is a common position and even a common science for us to fall back on. If we can do that, we might get some obedience to these new regulations.

Civil Aviation (Insurance) (Amendment) (EU Exit) Regulations 2020

Lord Balfe Excerpts

Thursday 18th June 2020 Lords Chamber

[Lord Balfe (Con) [V]]

My Lords, I declare my interest as president of BALPA, the airline pilots’ union. I endorse what has been said about attendance in the House, not only by Ministers. The Chamber is empty. We need the Whips to get together to find a way to get far more people into the Chamber. At the moment it is very difficult.

I turn to the points made so ably by the noble Lord, Lord Blunkett, and my noble friend Lord Blencathra. I serve on an international pensions committee. It had a disabled member on it for a few years. I became all too aware of the catalogue of errors that my noble friend outlined—the number of times things went wrong and airlines just looked the other way or their compensation was inadequate. Mention has been made of Lufthansa. I like to think that the Minister will introduce a disabled rights in aviation SI or law, or something. As noble Lords all know, I did not support leaving the European Union but, now that the British people have pronounced quite decisively that we are going to leave, for goodness’ sake let us get something useful out of it. This is certainly one thing.

The noble Lord, Lord Kennedy, took part of my speech away, I am afraid. I will mention paragraph 7.1 of the Explanatory Memorandum on the article that confers powers on the Commission to adjust minimum levels. Is it intended that the UK will follow this? How will it monitor what is happening and what the EU intends to do? The EU will obviously have its own internal processes before making changes. How do we propose to be linked into them? What notification arrangements are we expecting to get? I note also that there will be powers for the Secretary of State to amend the minimum insurance requirements by regulation. Are there any plans to do this at the moment?

The next paragraph talks about how an article inserted by the regulations

“includes provision for the European Parliament or the Council to object to continuation of the delegated powers at five-year intervals … these provisions have no practical application in relation to the UK”.

That is because we have a deficient democratic system, frankly. We should also have some system, now that we are leaving the European Union, to look at the continuation of delegated powers and decide whether they should be revoked. I would like the Minister to agree to look into this.

I endorse the points made by my noble friend Lady McIntosh. I have now had three months struggling with BA to get a refund on a ticket. I have very little sympathy for it. It is very good at asking for money, but very bad at giving it back. I would like the Government to add some weight to those customers who are still waiting for refunds after months and a deliberate attempt by airlines, particularly BA, to avoid paying out. I could paper a wall with the number of times that I have been offered a voucher.

Finally, I take the point that the noble Lord, Lord Kennedy, made about the aviation industry having been informed of the department’s intention. Specifically, with what information and in which way were the trade unions informed of the department’s intention and what response did the Government receive from them?

Air Traffic Management (Amendment etc.) (EU Exit) Regulations 2020

Lord Balfe Excerpts

Wednesday 17th June 2020 Lords Chamber

[Lord Balfe (Con) [V]]

My Lords, I shall be brief and I start by declaring my interest as president of the British Airline Pilots Association: from that point of view I am pleased to tell the Minister that we have no great difficulties with this SI as a technical document. We recognise that, without it, the arrangements would no longer be interoperable with the rest of Europe, so it is a necessity.

None the less, I have one or two questions. First, to what extent will this be impacted if, as is widely expected in Brussels, we leave without an agreement? Most of the smart money in Brussels is now moving to a position of expecting us to leave without an agreement and then wanting to start again: will it affect this, impact it, and if so, how? Secondly, what extra costs are going to fall because of this way of doing things? In other words, how much more will it cost?

Thirdly, as has been mentioned by the noble Lords, Lord Bradshaw and Lord Chidgey, Britain has had a good leadership role in aviation. We have been regarded as the sensible ones; we have not been regarded as the people forever defending our own territory—an accusation which has been laid a country not that very far away from us to the south. We are recognised as providing common-sense leadership. That is going to go and, as with many other things, there will be a gradual divergence as different European countries move their regulation, jointly, away from where we are. Does the Minister see any difficulties arising in this area, and does she believe that we will be able to play any role at all in giving leadership to European initiatives? In other words, as they develop, will we have any consultative role at all?

I repeat the thanks of others to the Minister. She has been an excellent Minister, very good at taking us into her confidence, and I wish her well with these regulations, which, as I said at the beginning, is more or less a housekeeping measure, contingent on what I still regard as the most unfortunate decision to leave the European Union. However, the British people endorsed that position and, in a democracy, we have to listen to the people as, on occasions, they say things we do not like.

Covid-19: Transport

Lord Balfe Excerpts

Thursday 14th May 2020 Lords Chamber

[Lord Balfe (Con)]

My Lords, I begin by declaring an interest in that my son owns a small chain of bicycle shops. I want to talk about Cambridge, where I live, and the problems that this directive will have there. If you work in London you cannot cycle or walk from Cambridge, but nevertheless it is a commuter town. It takes 50 minutes to travel to London by train, two hours by car, and if you do go by car, where on earth can you park? The problem will revolve around trains.

What thought has been given to the fact that if trains can take only 10% to 15% of their current load, and bearing in mind that during the rush hour trains from Cambridge are standing room only, how will the number of people on trains be controlled? Will there be rationing? How can it be done, because there will not be enough trains to take even a quarter of the people to work? Following the example of France and Belgium, I would particularly like to press the Minister to ask for the wearing of masks to be obligatory on public transport. Those countries have done it. Also, can the social distance be reduced from two metres to one metre?

[Baroness Vere of Norbiton]

I thank my noble friend for his thoughts on this issue. He has clearly described the challenge that we face in matching demand with the supply of public transport, in this case the trains. Obviously, the Government are encouraging everyone who can work from home to do so, and certainly from the conversations I have had so far regarding London a large number of companies are still encouraging their people to work from home. The second thing we are asking companies in London, and indeed beyond, to do is to spread the load a bit and flatten the peak as much as they can. We are asking companies to put in place staggered start times to ensure that not everyone arrives on the nine o’clock train. Rail services are gradually being increased, but we want to ensure that the safety of their front-line staff remains absolutely critical. The operational plans for services and for the infrastructure around rail travel are being put in place, and the chairman of Network Rail, Sir Peter Hendy, has been tasked by the Secretary of State for Transport to review all those operational plans to make sure that rail services are as good as we can get them, given the capacity constraints.

Air Traffic Management and Unmanned Aircraft Bill [HL]

Lord Balfe Excerpts

Committee stage & Committee: 2nd sitting (Hansard): House of Lords & Committee: 2nd sitting (Hansard)
Wednesday 12th February 2020 Lords Chamber

The amendment would sharpen up the definition of the offences and therefore the ability of the police to prosecute people and prevent those offences happening and deter others from engaging in such activity. They are relatively limited but they are important because they give a signal that operating drones is a potentially dangerous, malevolent and damaging form of transport. The fact that the operator and the machine are at a distance does not mean we can do without the restrictions that other controllers of machines in the air, at sea or on land already operate under. I beg to move.

[Lord Balfe (Con)]

My Lords, I offer my apologies as I was not able to be here for Second Reading, which I know traditionally one is before one speaks. I draw noble Lords’ attention to my entry in the register, which lists me as the president of BALPA, an office that I am very pleased to fulfil.

I support the points made by the noble Lord, Lord Whitty. These are basically safety amendments. We are looking for a positive statement from the Government, which I am sure will be forthcoming. Amendment 33A, as the noble Lord has said, is about the safety features being inoperable. We are particularly concerned if they are disabled deliberately. Of course, sometimes they are inoperable because they just do not work but on other occasions they can be deliberately disabled, and clearly that should not be allowed.

Amendment 33B says a single person can operate only a single drone at any one time. That we see as a matter of basic safety, and we hope it will find favour. On Amendment 33C, as the noble Lord has said, regulations concerning drugs and alcohol are fairly common in industry and in all these situations. I hope the Minister will feel able to give a positive response to the amendments and read into the record the Government’s support for at least the intention of what we are seeking to do.

[Lord Craig of Radley]

My Lords, I too support the thrust of these three amendments. On the first of them I would need to be quite clear, though, whether the requirements of particular safety features are a legal requirement. If they are not, I believe that they should be; but I assume that they are, which is why they are mentioned in this way. I also note in passing that the phrase

“in charge of a small unmanned aircraft”

is used. We have been talking about various ways in which those aircraft are managed. Is there somebody controlling them or are they being operated? For the sake of clarity, if we are going to use a word such as “controlling”—or any other word—it should be part of the legislation to define what is meant by the phrase or phrases that are used in it.

The amendment regarding one single unmanned aircraft could be restrictive but, to start with, that is perhaps the right way to go—not to immediately talk about allowing two or more, or even a swarm, of small unmanned aircraft to be flown. In passing, if such an arrangement were allowed would the collective weight of the swarm be taken into account, rather than just the weight of an item within that swarm? That could affect it, bearing in mind the weight limitations that are already in legislation.

On the point of the third amendment, alcohol, I know that the Minister talked about alcohol in the letter that she wrote. She said that if it were necessary, it would be a matter for an air navigation order because alcohol and drugs are of such significance in the safety of aviation. The Explanatory Notes refer to anybody fulfilling an aviation function, but surely the operator or controller—the man, woman or child in charge of a small, unmanned aircraft—is performing an aviation function. The Railways and Transport Safety Act 2003 seems a very appropriate place for alcohol and drugs to be covered, rather than leaving it to an air navigation order.

Thomas Cook

Lord Balfe Excerpts

Wednesday 25th September 2019 Lords Chamber

[Baroness Vere of Norbiton]

My Lords, I fear that the noble Lord is making the wrong comparison there. On the £250 million, we made the assessment that, even had we been able to provide the guarantee of funds that was requested, the company did not have a viable future. It was severely in debt and losing a significant amount of money. We would have been in the same situation in the future but £250 million poorer. Also, it is not the Government’s usual position to prop up private companies that have got themselves into trouble.

When it comes to the total costs of the failure—there are many, and we understand that—some are clearer than others at this time. On repatriation, for example, I did not just double the Monarch cost—I said that this repatriation is twice the size of Monarch’s, but it is also more complicated. However, we are mitigating that by having conversations with a third party. We learned from the Monarch case that some people do not behave in the way you would expect: in that case, a significant portion of people chose not to be repatriated using the Government. They found other ways of getting home—we do not know how, but they did not arrive for their flights.

Estimating the costs is extremely difficult. It is up to us to keep the costs as low as possible, but ATOL customers who have future bookings can claim from ATOL—that fund is underwritten by the Government. Again, we cannot be absolutely clear about the cost because it will depend on how many people end up claiming, but every person who applies to ATOL to get a refund for their booking will receive it—and that is right.

[Lord Balfe (Con)]

My Lords, I draw noble Lords’ attention to my entry in the register. The Times today has two very interesting headlines. The first one says that,

“the company had hung its staff ‘out to dry’”,

but the second one, on the same page, says:

“High flying Thomas Cook chiefs will enjoy a soft landing”.


Yet again, boards of directors appear to be completely above the lifestyle of the workers who are making the money that they benefit from. Of more worry to the day-to-day employees is a quote from the Insolvency Service. It said that those,

“who lost their jobs would not be paid by the failed company for their last three weeks of work”.

These are people who have mortgages to pay, food to put on the table for their children and are due their wages next Monday. Can I ask that the Government look seriously at a way of providing some short-term financial support so that this wages bill can be paid? It is absolutely outrageous that millions and millions of pounds are pocketed by directors at a time when people are not being given even the money to pay their mortgage and buy their children’s food.

[Baroness Vere of Norbiton]

I thank my noble friend, who makes an extremely important point. I may be mistaken, but I did understand that BALPA wanted the Government to give Thomas Cook the £250 million, which, in my mind, would just be propping up a failing board, which, clearly, he does not have an awful lot of respect for.

It is top of mind to make sure that the employees are treated as well as possible. The Insolvency Service is preparing to pay statutory redundancy to employees. I will look further into exactly what payments will be made and when, and I will include payments that are due to pensions. I will provide as much information as I possibly can and I will put a copy of my letter in the Library to clarify what the Government and the Insolvency Service can do to support employees in the short term. In the longer term, as I have already said, the Jobcentre Plus rapid response service is there, waiting and able to help employees. I have been really heartened by so many companies, such as British Airways and Heathrow Airport, sharing their jobs’ pages on Twitter and saying, “Look, Thomas Cook staff, we respect you. You are good workers. We’ve got jobs, please apply to us”.

Air Services (Competition) (Amendment) (EU Exit) Regulations 2019

Lord Balfe Excerpts

Tuesday 12th February 2019 Lords Chamber

[Lord Bruce of Bennachie (LD)]

My Lords, I also have some questions. One of them arises from the comment made earlier by the noble Lord, Lord Deben, which suggested that some of this is theoretical or even fanciful rather than real, since replacing “EU” with “UK” sounds like a very simple thing. But it is fundamental to the fact that over the years we have developed a UK aviation industry and an EU aviation industry with open skies and much more flexibility in the choice of airlines operating, which could all be about to come to an abrupt halt.

I have questions in relation to domestic issues as well as international ones if we pass this instrument. For example, on the issue of allocation of slots, clearly at the moment the EU can have some exercise, even on slots operating within the UK and between UK domestic airports. As someone who has flown regularly for over 30 years, using many of the UK’s airports internally and externally, and who has represented an airport, I have been very exercised by slots which come and go, which are offered and then not used and where actual sanctions against the airlines to maintain a service seem to be ineffective.

Let me slightly bore the House with two of my own experiences from the last two weeks. For the first time in the 30-odd years that I have been commuting from Aberdeen to London, I was unable to get a flight that would get me here on time for the sitting of the House, either this week or next week. This was because British Airways decided not to use its full slots, claiming there is not the demand, despite the fact that every flight is overbooked. Indeed, it is telling us two weeks ahead that there are flights which are no longer available, even for wait-listing, because they are overbooked two weeks in advance, yet it has reduced the slots with no sanctions. Does this regulation have any effect on whether or not that could be done? The Minister will tell me it is a matter for the Civil Aviation Authority. It may well be, but I hope the Government will recognise that it is a matter of public interest if people cannot get the flights they would reasonably expect.

On the issue of what will happen to UK airlines seeking to maintain flights to the EU after 29 March, we know that easyJet has already resolved that situation for itself by relocating its headquarters to Vienna. There is a serious possibility that British Airways may have to relocate its headquarters to Barcelona or Madrid, since the EU appears to be saying that it does not recognise the IAG as an EU company because its headquarters are within the UK. I see the Minister shaking her head. I would be interested to know whether she has any updated information as to whether BA can resolve this issue without having to relocate its headquarters out of the UK. It would be somewhat ironic if our flag carrier was headquartered in Madrid or Barcelona.

The other issue relates to when airlines merge. For example, at present we have limited competition between Aberdeen and London, operated by Flybe. Flybe has sold itself for £1 or £1 million—I cannot remember which, but it was a very small amount—although this is being disputed. The question we are left with is what guarantees there would be for those slots if Virgin and its partners took over Flybe. Would it come under UK law? Would there be any EU intervention—or would there have been—and how would it be enforced? So, although the Minister said that the competition regulation has never been applied within the EU, if the UK becomes a third country, could it not then be used by the EU as a discriminatory weapon against us if we are seeking reciprocal rights?

For example, the UK Government may well say that on 29 or 30 March all airlines will be free to continue operating into the UK on exactly the same terms as they do currently. We can do that, but is there any obligation on the EU to reciprocate? If there is not, does this mean that we will be offering free access to all our airports for continental airlines but UK-registered airlines will potentially be denied all access to theirs? Facing this kind of uncertainty is pretty catastrophic 45 days out from Brexit. So of course people are wondering whether they should book flights. I have rashly booked flights to the continent in May and August, mainly because if you do not book them in time they are not available—but they are subject to uncertainties that may or not be resolved.

The Minister needs to answer some basic questions. To what extent will we be in the same situation as we are now? To what extent will the ability to change the rules and regulations unilaterally be open to the UK? If we do it, what will be the implication for our relationship with the EU? Or are we simply saying that we are transferring the law by replacing “the EU” with “the UK” but have absolutely no comment to make on how the EU is going to operate, what sanctions or otherwise it may impose or what redress we may have. I may have read it wrongly, but this reads to me as an entirely unilateral operation by us, with no guarantees that the EU will reciprocate any of it.

[Lord Balfe (Con)]

My Lords, the Chamber is much emptier now than it was for the earlier SI. I am intrigued that we are replacing the air services competition regulations, which apparently have never been used, with an SI which we hope will never come into force. This is almost comedy stuff. The Explanatory Memorandum states that,

“this instrument makes the corrections needed for it to function as domestic UK law after Exit day”.

What is the position regarding the replacement? If negotiations on it are going on at the moment, presumably the Department for Transport is involved in them. I would be interested to hear where they have got to. Are they on the point of producing the replacement or is it some way down the line? If it is on the point of being replaced, do the Government envisage bringing forward another SI to reflect the new regulation? Or will this be the first instance when we are seriously at variance with Europe: in other words, when it adopts a new regulation but we are still working on an old one? This picks up the point I made earlier this afternoon when I asked about divergence between Community and UK law. It needs to be addressed.

One always learns things in these debates. I was fascinated to learn that my noble friend—and good friend—Lady McIntosh began her romantic life by talking about cabotage. I found something else to talk about when I first met my wife, but we do not need to go into that. Looking at the slot allocation regulations, the question that keeps coming to me is: why should any airline stay based in the United Kingdom at all? What advantages are we going to offer them? I can see the advantage in being in a union of 27 countries where there is a common base and common legislation, but what will be the advantage of being a UK airline? I can see none at all. Britain cannot do without airlines. We are not going to stop them flying here, but at the same time we have nothing to offer them that will be better, in any way, than what they will be getting from the EU. The Commission will no longer have a role in relation to airports.

According to the explanatory statement, article 9 says:

“Instead of any invitation to tender to operate a”,


public service obligation,

“route being open to Community air carriers only, this will be open to all air carriers with traffic rights to operate services within the UK”.

Is not the logical corollary that our rights to bid for public service obligation slots in the rest of Europe will be withdrawn? If we are going to open up and say that non-EU airlines can bid for these slots, surely the natural reaction would be to say that we are changing the whole basis of things. So this is not bringing EU law into UK law; it is bringing it in with one quite fundamental change, by opening it up to all air carriers with traffic rights to operate services within the UK. What is the thinking behind this? Why have we inserted this into a regulation that is supposed to bring EU law into line with our law, while making a big divergence by letting non EU-registered airlines bid for these slots? I would welcome the Minister’s observations on why this has been done.

[Baroness Randerson (LD)]

My Lords, the services SI is about unfair practices. It allows penalties to be imposed on air carriers guilty of unfair practices against the UK industry. Since these powers have apparently never been used at an EU level, it is probably right, just for once, to say that this is purely technical—although the Minister forbore to say so. However, the concept of an EU-wide approach, which is what we are abandoning here by replacing “EU” with “UK”, would be much more likely to be an effective deterrent against such practices than the UK operating on its own. The noble Lord, Lord Balfe, has just wondered out loud why an airline would base itself in the UK in future. This is another example of how we are opening ourselves up to being in a much more vulnerable position through our future isolation.

In her introduction, the Minister said that these EU regulations were being replaced. Will she clarify whether the Government intend, in due course, to replace this SI with an updated version when the EU has updated its regulation—or are we going to be stuck in a time warp with outdated legislation?

Air Passenger Rights and Air Travel Organisers’ Licensing (Amendment) (EU Exit) Regulations 2018

Lord Balfe Excerpts

Tuesday 12th February 2019 Lords Chamber

[Lord Foulkes of Cumnock]

That is an even better peroration. The whole campaign of the leavers was to take back control—if I remember—to the British Parliament, not the British Government. It is not the Government or even the Cabinet, but one person who seems to be ramming it through with some kind of stubbornness and determination. That was not what it was supposed to be about. It was supposed to bring the power back to this Parliament.

I say to my noble friend Lord Adonis, if they try to push it through by emergency legislation that will be a real test of the mettle of every Member of this House, particularly the Cross-Benchers. Are they going to stand up for Parliament, or be subservient to our autocratic Government? That will be the test.

I think I have gone a little bit wider than the statutory instrument and I am grateful for the fact that the Lord Speaker does not have the same powers as the Speaker in another place; otherwise, I might have been ruled out of order by now. I am sorry to be slightly flippant; it is a very serious matter. Coming back to relevance, this one statutory instrument is illustrative of the kind of thing we face in this Parliament at the moment, and it is quite frightening.

[Lord Balfe (Con)]

My Lords, I am sorry that I am going to destroy even more the statement from the noble Lord, Lord Foulkes, by being the third speaker from this side of the House to raise questions. I saw in the paper this morning that apparently, on 1 September 1939, between 6 pm and midnight Parliament passed six pieces of emergency legislation—all three Readings —and rose before midnight, so it is possible to put through emergency legislation. But I wonder whether this is the sort of parallel we would like to draw.

I have heard many justifications for leaving the EU but I have never yet heard job creation as being one of them. However, it seems that virtually every time we come here we are creating more jobs—59 extra jobs, I am told. That must be at least a couple of million pounds on public expenditure. How much of the vast amount of money we were going to save is going to be spent? I suppose that since the Government’s priority is to create jobs, this is a partly a way of doing that.

[Lord Adonis]

The Minister talked about 59 jobs in the CAA, but about a third of the staff of the Department for Transport are currently working on Brexit-related issues and about a third are clearing up successive messes of the Secretary of State. That leaves very few members of staff actually doing the job of the Department for Transport at the moment.

[Lord Balfe]

The noble Lord makes a true point. One of the things that I find very unsatisfactory at the moment is the huge amount of public service energy going into this. Indeed, we are told that this SI will be unnecessary if there is no deal. We are told by the Government that they want a deal. I feel very sorry for the civil servants spending all their lives working on something that the Government do not want to happen. That is not a very good way of boosting morale.

What happens when the EU updates the regulations? We seem to think that we are looking at a picture that is static for all time. But anyone who knows how the European Commission and Parliament work will know that there is a constant process of review of legislation. Even if this SI is unnecessary, there will come a point, if we leave, where we will have to take over the legislation.

--- Later in debate ---

[Baroness Randerson (LD)]

I am sure the noble Lord has noted that the Government have conveniently—from their perspective—translated the euro rate of compensation into pounds using the current exchange rate. The noble Lord makes the good point that that could become distorted if, for example, we have the kind of significant change in exchange rates that the MP David Davies, for example, referred to last week.

[Lord Balfe]

I did not raise that point about the translation, but purely because my noble friend Lady McIntosh had already raised it. I was making the point about the change in regulation, which I am concerned about, not the change in internal things within it.

My second point is on the interpretation of regulation. When the European Court of Justice interprets a regulation, if we are following and providing the same rights, and the CJEU makes a judgment which interprets the regulation so that it is no longer in line, to what extent will we accept the judgment of the court? In other words, how real is this alignment when, not on day one but on, say, week six or month six down the line, things have started to diverge? Presumably we will not have an SI every week; what mechanism do the Government see being used to maintain the alignment between our regulation, which they say will follow the EU statute book—that is fine—and changes in the EU statute book? This question will come up, whether it is on this regulation, if we do not leave, but it will also come up if we leave. How dynamism plays its way through the legislative process will be quite a fundamental point for consumer rights, as it will be for trade union rights, which we will come on to in another debate.

[Lord McNally (LD)]

My Lords, as this debate has unfolded I have watched the noble and learned Lord, Lord Keen, looking pensive. I suspect he has probably been thinking, “When I finish this job, I might go into travel consumer law”. When the Minister comes to read Hansard tomorrow, she will probably find that she can check off almost every known troublemaker in this House as having intervened. However, that is what this House is here to do: to make trouble when Ministers bring forward flawed or defective legislation.

Listening to the various queries and questions makes one think very hard about the process that we are going through. The Minister had a baptism of fire over drones a few weeks ago, but that will be as nothing compared to a situation in which this legislation proves defective when it comes to the test and we find that all the sweet and honeyed words about the smoothness of the transfer from EU to domestic legislation throw up faults and weaknesses. There is nothing that makes the British public angrier than being interrupted on their holidays. Woe betide the Minister who is left holding that particular baby if that comes to pass. Of course, the noble Lord, Lord Deben, is right: we are stronger within the EU, and the protection given to consumers is far stronger when we work and speak from within the EU rather than when the CAA is acting alone.

Has any impact assessment been made on the effect of Brexit on Heathrow as an international hub? We have already heard of the possible British Airways transfer to Spain, but Heathrow is one of our vital assets as a major hub airport of the world. If leaving the EU and operating under CAA rules leaves us open to competition from Schiphol or Paris or others that can give flight operators greater assurances, that is a real downside of what we are doing. The noble Lord, Lord Balfe, made the valid point that EU law is not static, but is developing. We must face the fact that in this case, as in so many others, we will not be at the table to speak up for British interests and consumers when that development takes place—so much for sovereignty.

Given the complexities that have been revealed by this, is there any plan for a public information campaign to explain to the public what has happened? They need to be informed about their guarantees and where there are dangers because—make no mistake—good as our travel industry is, we will find scams, additional charges, problems with transfers from the EU, tax put on holiday costs and so on. There will be a need for some concerted consumer protection during this process. I look forward to the Minister’s reply.