Aviation Noise (Amendment) (EU Exit) Regulations 2019

Lord Berkeley Excerpts

Tuesday 12th March 2019 Grand Committee

[Lord Berkeley (Lab)]

My Lords, I am grateful to the Minister for that introduction. I have two questions. The first relates to the noise regulations and the assessment of the aircraft. It is difficult to see how we can have two different bodies coming up with different solutions, so I suspect that it will not be easy to reach agreement on how much noise an aircraft makes in certain circumstances.

My biggest worry is over the appointment of what is called a “competent authority” in paragraph 7.6 of the Explanatory Memorandum. It seems to me that the word “independent” could be added to “competent”. If we look at issues on operating restrictions, in the debates over Heathrow Airport and its third or fourth runway—or whatever it is called today—for whatever reason the Government have come out very strongly in favour of it and there are now, I think, several judicial reviews to challenge them. I cannot see how the Government acting as a competent authority, however competent they might be, can be seen to be independent of their policy, particularly in relation to Heathrow, saying they want this and are going to bulldoze it through under whatever circumstances. There are serious issues here about independence. When it was the European authorities, there was clearly independence. Now there is not, and given the particular status of Heathrow—in my view, it should be changed, but that is a completely different issue—I cannot see how this can satisfy members of the public, especially those who live under the flight path, that the Government can set operating restrictions and at the same time demonstrate that they are completely independent of their views on developing an extended airport for London. I will be pleased to hear how the Minister thinks the Government can wriggle out of those two conflicting requirements.

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[Baroness Sugg]

I thank noble Lords for their consideration of this statutory instrument. The regulations do not set noise policy; noise standards for aircraft are set by ICAO and we will continue to follow them.

On the point about the competent authority, last year we laid regulations that appointed competent authorities in England and Wales. The implementation provides for the local planning authority to be the competent authority when an application for any change is brought under the Town and Country Planning Act, but it also allows the Secretary of State for English airports or Welsh Ministers for Welsh airports to be the competent authority for called-in applications. Therefore, that matter is slightly separate from this SI.

The noble Baroness mentioned the balanced approach. Regulation 598 requires the competent authorities to take account of the balanced approach, and that requirement is kept by this SI. It will ensure that the balanced approach consists of identifying noise problems at specific airports and giving consideration to various measures that might be available to reduce noise. That is being carried over in its entirety.

Expansion at Heathrow is conditional on a package of mitigations. The NPS makes clear that noise mitigation measures should be put in place to ensure that the impact is limited. Again, that is going through the planning process following the judicial review process. We of course recognise that aviation noise is a key concern for communities living near airports. I regularly meet community groups and MPs to discuss this. We have played a leading role at an international level in relation to noise standards, and we will continue to promote further improvements in this area.

This SI does not change noise policy; it is concerned only with corrections as a result of EU exit. It does not impose restrictions; it is just a framework. We are consulting more widely on our noise policy, which we set at a national level through the aviation Green Paper consultation which we published in December. In that, we set out a number of policies designed to reduce noise and its impact, and that is how we will set our noise policy in future.

On consultation, in 2017 we consulted on proposals for appointing competent authorities, and the Scottish Government conducted a consultation on their proposals earlier this year. However, we have not consulted communities on this. The changes in Regulation 598 will not have a direct impact on overflown communities. They will ensure that the correct procedure is followed when operating restrictions are considered or it is proposed that they be imposed, but they will not change things for communities per se. As I said, that is being dealt with through the aviation strategy consultation.

There is a delegated power which provides for the Secretary of State to make secondary legislation under the negative procedure. It is about providing technical updates to the regulations, but again that power is limited to such updates to the noise certification standards and methodology indicators relating to the assessment of noise impact at an airport. Again, those updates are limited within the regulations to account for changes to relevant international rules.

As with the previous SI that we discussed, we will continue to follow the international rules. We have been leading the way with our noise policy and are suggesting further measures to improve it through the consultation. We will publish our final aviation strategy later this year, which we hope will address the understandable concerns of communities around the airport. However, that noise policy is not directly relevant to the SI we are discussing, which simply ensures that in the event of a no-deal exit from the EU there will be continuity of aircraft noise standards and certification and of the process when operating restrictions are considered at airports.

[Lord Berkeley]

Perhaps I may press the Minister a little further on the competent authority. I think she said that the competent authority for Heathrow would be the Secretary of State, but I recall that over the past 30, 40 or 50 years, Ministers of different persuasions have had a major influence on what happens at Heathrow. It does not matter which party has been in power; a Minister either likes it or does not like it. There is a perception that these Ministers have encouraged studies, shall we say, or other independent work to support their particular opinion. I suppose that is part of the political process for Heathrow, but nobody will have any confidence if a Secretary of State is promoting very hard an expansion of Heathrow while being the competent authority in deciding whether the noise is too great or too little, or whatever. I appreciate that this SI—

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[Lord Berkeley]

I was just concluding. I wanted to note that, as we all know, this SI will come into force only if there is a hard Brexit. However, it would be good to have the Minister’s assurance that, depending on the type of Brexit we have—if there is no Brexit, it will not matter, but it will matter if there is some type of Brexit—if and when she brings these regulations back again she will take into account the question raised by several noble Lords about the competent authority and independence when it comes to Heathrow and perhaps other airports as well.

[Baroness Sugg]

I understand the noble Lord’s point, but competent authorities will not be appointed by this SI. That was done last year following extensive consultation. As I said, that role was to follow the balanced approach of ICAO. Article 3 of Regulation 598/2014 requires competent authorities to be independent.

Of course, the Government and the Secretary of State are allowed a position on airport expansion. They are very clear on the benefits that expansion at Heathrow will bring. That will have an impact, which is why we set out lots of requirements in the national policy statement. The Secretary of State is not deciding on the planning process; that is being done through the independent planning process, as is right.

Under Regulation 598, the appeal route is broadly aligned with the planning process, so there may be scope to challenge any local planning authority’s decision related to operating restrictions. That is the appeal process under the Town and Country Planning Act 1990. For all other cases, including where the Secretary of State was the decision-maker, judicial review would be the appropriate route for challenging that decision. There is independence there on the granting of planning permission and the appeal route.

As I said, I very much understand the impact aviation noise can have on communities. As Aviation Minister, I am alive to it, which is why we suggested many new noise policies in our consultation on the aviation strategy. This SI is purely about the regulatory framework and will ensure the continuity of aircraft noise standards and certification and the process for considering operating restrictions at airports in the event of no deal. Noise policy is covered extensively elsewhere.

[Baroness Sugg]

For this SI, they did not because the communities are not going to be affected by it. We consulted when we were appointing competent authorities because that will affect them. That was properly consulted on in 2017 ahead of those regulations coming into force. We did not consult on this SI because we do not believe that it is going to affect communities. It is purely about transferring the regulatory framework and not about the noise or competent authority policies. We are having a full consultation now on our aviation strategy after setting out some policy positions. We will certainly meet community groups; we are meeting community groups and will continue to meet them as the consultation evolves and the strategy develops.

[Lord Berkeley]

My Lords, the Minister is right that there is no change in policy but, as I understand it, there is a change of the organisation or person who is the competent authority. It is now the Secretary of State and before it was somebody from one of the European organisations. There is a change and that introduces a conflict of interest.

[Baroness Sugg]

There is a change, but to the relevant authority not the competent authority. The competent authority is staying the same. Competent authorities were consulted on and set in the previous regulations. Under current EU law, they have an obligation to report operating restrictions to the Commission. Instead, under this SI they will have an obligation to report operating restrictions to the relevant authority. In some cases, that will be the Secretary of State, in others, it will be the Scottish Government. I do not believe there is a conflict of interests because the competent authority remains the same; it is purely who it reports to that will change. There are the same reporting obligations but just to a different person.

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

Lord Berkeley Excerpts

Tuesday 12th March 2019 Grand Committee

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

My Lords, these draft regulations will be made under the powers conferred by the European Union (Withdrawal) Act 2018 and the European Communities Act 1972. Unlike our two previous SIs, some provisions in this instrument will be needed if we leave without a deal, but specific provisions relating to an enforcement power are needed regardless of the outcome of EU exit negotiations.

The regulations amend EU Regulations 437/2003 and 1358/2003 and seek to maintain the status quo with regard to the provision of data by operators of airports served by commercial flights. This is achieved by making technical changes to ensure that retained legislation continues to function, including amending redundant references to the UK being a member state. A further part of this instrument, made under the European Communities Act 1972, also creates a mechanism to enforce the obligation on airports to provide data, because there is currently no penalty if an airport does not comply.

This SI was proposed as a negative instrument, but we have accepted the Secondary Legislation Scrutiny Committee’s recommendations to re-lay it using the affirmative procedure, acknowledging its concerns around the potential impact of these changes on commercial airport operators. I thank that committee for its consideration of this SI.

This draft instrument amends two pieces of EU legislation. The first of those is EU Regulation 437/2003, referred to as the statistical returns regulation, which requires operators of airports served by commercial flights to provide their member state with specified statistical data. In its existing form, the regulation specifies information that must be compiled by the member state—a function completed by the Civil Aviation Authority. It also requires that the same information must be provided to the European Commission’s statistical office, Eurostat. It further sets in place standards that must be met during the compilation and submission process. Secondly, it amends EU Regulation 1358/2003, referred to as the implementing regulation, which requires that the process set out in the statistical returns regulation is applied to a set list of airports and updates the list of statistical information that said airports must supply. The list of airports is effectively comprised of all airports that see commercial air traffic. This list included 46 airports across the UK at the point of its last update by the EU.

The withdrawal Act will retain both these regulations in their entirety. The draft instrument we are considering makes the changes necessary so that they continue to function correctly. That is essential to ensure that the regulatory regime in place continues to allow statistics on the total volumes of passengers and freight using UK airports to be compiled. The gathering of such data and the publication of derived figures are activities that are important for the Government, the public and the sector itself to be able to monitor performance.

This draft instrument amends the statistical returns regulation to remove the duty on the UK to continue to transmit this data to Eurostat. The power to collect statistical data and the obligation on respondents to provide that data are to be retained, with responsibilities for these functions given to the CAA.

This instrument amends the implementing regulation to remove the specific list of airports covered. This list is in fact superfluous, as the existing implementing regulation also contains a mechanism that sets the burden of data collection at different levels dependent on the volume of traffic seen by an individual airport. The mechanism will remain in the retained EU regulations, so that what is expected of airports will stay the same as it is now. The data collection power provided is an important tool for accessing data due to the competitive and commercially sensitive nature of the sector. As such, it is important that this legislation continues to operate after the UK has left the EU.

During the preparation of this instrument, a review of the statistical returns regulation highlighted the requirement for an enforcement mechanism in this instrument to meet the UK’s responsibility as a member state. This is why the SLSC recommended this instrument be upgraded. This instrument therefore provides a mechanism whereby the CAA can enforce the obligation on airports to provide the data specified. In determining the penalty, enforcement mechanisms in similar pieces of legislation were considered so as to not go beyond prior precedent. Consequently, the department decided to match the enforcement powers that exist within the Airport Charges Regulations 2011, with a civil penalty of up to £5,000. This part of these regulations is required regardless of final decisions on the UK’s future relationship with the EU. As I say, it is there to meet our responsibility as a member state.

The best outcome for the UK is to leave the EU with a negotiated agreement, but this instrument ensures that, in the event of a no-deal exit from the EU, statistics on the total volumes of passengers and freight using UK airports can continue to be compiled and published. I beg to move.

[Lord Berkeley (Lab)]

My Lords, I shall be quick. I note that in paragraph 7.2 of the Explanatory Memorandum, the Government think that,

“The gathering of such data … of derived figures are activities that are crucial for Government, the public and the sector itself to be able to monitor performance”.


However, paragraph 7.7 suggests it is no longer appropriate for any of these statistics to be given—they can be given to the Secretary of State, if he so directs—to anybody else in Europe. Why is that? Would we not want data from there? Would it not be helpful for our ongoing air services between the whole of the European Union and the UK if we exchanged this statistical data? Or will we put a ring around ourselves and pretend that Europe does not exist? Surely it would be useful—and the Government say it is useful. Why is no mention made of the CAA being able to share this information with the relevant European body?

[Baroness Randerson (LD)]

My Lords, airport operators currently provide their statistics to the CAA, which passes them on to Eurostat. This is to be replaced, according to this SI, with a system whereby airport operators give the information to the CAA, which then provides that data to the Secretary of State if directed—not by legal obligation but if directed.

There are four problems with the SI. First, statistics collected on a national basis are much less useful and meaningful than international statistics. As the noble Lord said, there is no guarantee that this information will be shared internationally.

Secondly, there is no obligation on the Secretary of State to even want to see the statistics. What will he do with them? There is no obligation on the Secretary of State to publish them. Therefore, one has obvious concerns about transparency. Statistics should be important for the Government; they are certainly important for the public and the industry itself to monitor performance. The CAA already collects this data, but it will be of much less use for comparative purposes as matters stand in the SI.

The third problem is the impact of changing rules on exactly how the data is expressed and collected. This is the kind of internal thing that happens in any organisation. If you change the order of the questions or one or two words in the questions, you impact the results. It does not matter that much if you are looking across the piece and everyone is obeying the same rules, but we will be collecting our data on a different basis. I more or less guarantee that, within a year or two, we will be told that our data is no longer comparable because of differences in collection procedure.

Finally, there is the new power of the CAA referred to in the SI to impose a £5,000 fine if an airport does not provide data. I am not entirely clear about this, and I would be grateful if the Minister could clarify. I believe that this is a new power; I am not sure that the CAA has it at the moment. If it does, what is the fine, because £5,000 seems derisory as a fine on a large organisation for failing to provide data? It would cost Heathrow Airport or Gatwick Airport a great deal more than £5,000 to collect the data, so there would be an incentive not to bother. Where does £5,000 come from? Has it been thought through as a penalty that should be paid by a large commercial organisation? It does not seem worth it.

Aviation: Boeing 737 MAX 8 Jets

Lord Berkeley Excerpts

Monday 11th March 2019 Lords Chamber

[Baroness Sugg]

Following the Lion Air crash, Boeing, the manufacturer, issued an emergency safety bulletin and the FAA and EASA issued an emergency airworthiness directive. That mandated that 737 MAX 8 operators revise the flight manual and training procedures to prepare pilots to deal with the same incident that the Lion Air pilot appeared to experience. Of course, before the aircraft entered into service, the CAA conducted a safety assessment that took into account the preliminary findings from the Lion Air accident and the EASA airworthiness directive. As I said, this accident happened yesterday and we are keeping in close contact with those investigating it.

[Lord Berkeley (Lab)]

My Lords, most people would believe that if Boeing issued new instructions and safety rules after the Lion Air accident four months ago, they were probably defective as another accident has happened. Will we have to wait another four months before any action is taken? That seems a risky policy.

[Baroness Sugg]

The accident happened yesterday and obviously, we are looking carefully into what caused it. As I said, an airworthiness directive was issued and acted on. We are working closely with EASA and the FAA on any further steps we should take.

Brexit: British Airlines

Lord Berkeley Excerpts

Tuesday 5th March 2019 Lords Chamber

[Baroness Sugg]

The noble Baroness is right to point out the importance of East Midlands Airport for our freight capacity. In the event of no deal, the Government are designing customs arrangements in a way that ensures that goods can continue to flow. As we have made clear, we will not compromise security on the border, but keeping goods flowing is of vital importance. We are working very closely with East Midlands Airport to minimise disruption.

[Lord Berkeley (Lab)]

My Lords, last night in the Statement on Eurotunnel, the noble Earl, Lord Courtown, who is in his place, said that the agreement to pay Eurotunnel £33 million,

“will help to deliver an unhindered supply of vital medicines and medical devices under any Brexit scenario”.—[Official Report, 4/3/19; col. 503.]

Would it not have been better value for money to send this medicine by air freight, rather than paying Eurotunnel £33 million for nothing?

[Baroness Sugg]

I was wondering how that would come back to air freight. The noble Lord is right that we are considering air freight as part of our plans to ensure that we have vital medicines. Some medicines with very short half-lives will need to be carried by air freight and the Department of Health is working to ensure that that happens. The decision on the £33 million was made to guarantee that we will be able to carry essential medicines in the event of no deal.

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

Lord Berkeley Excerpts

Monday 25th February 2019 Lords Chamber

[Baroness Randerson (LD)]

My Lords, this SI deals with the legislative framework for aviation security in the UK covering everything from screening passengers to the rules governing access to airports. This is a hugely important field and one where the UK has an extremely good reputation based on rigorous efficiency and the fact that we were one of the first countries to take up the option to introduce more stringent measures on security. Safety at our airports is of course based on the pooling and swapping of key information—a process that has been built into the EU system which this SI dismantles—so I have some questions for the Minister.

On paragraph 6.4, the reassurance here on the use of the affirmative procedure is so gloriously vague that, to be honest, it is meaningless. We might have some affirmative SIs as a result of this, but on the other hand we might have some negative ones. We are given no proper measure of how that decision will be made. I would be grateful if the Minister could give us some information on how that judgment will be made. This is a fundamental area for our country.

Paragraph 6.6 of the Explanatory Memorandum refers to the revoking of Commission decision C(2015) 8005 and then states that the decision is so sensitive that we cannot be allowed to know what is in it. I have to say that this is a first for me. In my experience, I have never known the Government to revoke a secret power. Can the Minister give us some information as to what this might be about, even if she cannot give us the details? Certainly, can she explain why it is impossible to give us that information?

The question of airport inspections is important because we rely on the inspection of airports in other countries in order to ensure that UK flights and UK citizens are safe. We use the information from those inspections to give warnings to UK citizens that they should not fly to certain airports and to discourage airlines from doing so. This system relies on a free flow of information of a very sensitive nature. In future, we will inspect our own airports. That produces two questions in my mind. First of all, how will we make sure we keep in step with the rest of the world on those inspections and the terms on which they take place? Secondly, how will we continue to share information with the remaining 27 EU countries? The sharing of the information is the absolutely crucial thing here.

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

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

[Lord Berkeley (Lab)]

My Lords, this is a very interesting SI, in particular the issue of confidentiality. This has come up again and again in not just the secondary but also the primary legislation. I know for a fact that people in the industries that I am in touch with say, “We have signed non-disclosure agreements, so we can’t tell you anything”, which is fine because it means they have to do what the Government say; they have no other information and no means of questioning it. More importantly, I need to ask the Minister how long these NDAs are going to go on for. As the noble Baroness said, once you have “security” in there and everything is confidential, getting that removed is almost impossible because there will always be 25 reasons for not doing it. That applies to NDAs and, even more important, to this legislation. We might just as well sit back and say, “Well, you didn’t tell us about it. Of course we trust you; you’re the best security in the world until something goes wrong”. Whether we believe that is a different matter, but there is nothing we can do about it.

My second point concerns Regulation 16, which the noble Baroness mentioned, about removing the power of the Civil Aviation Authority to grant operating licences to UK-registered air carriers. Why can the CAA not continue to do this? After all, it is a UK government body with the expertise—probably unlike the Secretary of State and his Ministers. I would go one step further and say we can still leave the EU and not have any input into the decision-making processes that go on—if that is what is going to happen—but is there any reason why we should not have the back-to-back arrangements with member states on operating licences with the CAA on mutual recognition? What is wrong with that, apart from the fact that Ministers do not want to do it? The Minister shakes her head, but technically it would make life a great deal easier. It seems to me that it should be looked at. I do not think any noble Lords will oppose this SI tonight—it is a bit late now—but this is something we ought to be thinking about and challenging. On many of these SIs coming up, including railway ones next week, the decision has been made but actually has nothing to do with the basic principle of leaving the EU. It is somebody’s interpretation of it to suit their own political ends or whatever. It is worth reflecting on that. In the meantime, I look forward to hearing the Minister’s response

[Lord Rosser (Lab)]

First of all, I thank the Minister for her explanation of this SI. I struggled to understand it, and I suppose it must be of some comfort to know that at least one Member of your Lordships’ House—namely, the Minister—does understand it. Basically, as the Explanatory Memorandum says, EU law,

“sets out the baseline aviation security standards”,

applicable in the UK. As I understand it, the purpose of the SI in front of us is to ensure that,

“the legal framework has the same practical effect”,

after we have left the European Union. It says:

“Regulation 300/2008 and a number of the related EU instruments are being retained in United Kingdom law by virtue of the Withdrawal Act”.


Consequently, the instrument,

“keeps the effect of the regulatory framework the same in practice”.

I too have a number of questions, and I have to say they are suspiciously similar to those that the noble Baroness, Lady Randerson, has already asked. I too refer to paragraph 6.4 and raise the same point that the noble Baroness, Lady Randerson, raised. It says:

“In doing so, this instrument makes provision in relation to powers in Regulation 300/2008 (e.g. to amend detailed aviation security requirements) so as to confer these powers on the Secretary of State. In certain cases, the exercise of these powers is subject to the affirmative resolution procedure where it is considered that greater Parliamentary scrutiny is appropriate”.


So we are talking about something of some significance: detailed aviation security requirements. Like the noble Baroness, Lady Randerson, I would like to know how the decision will be made as to whether it should be the affirmative resolution procedure or the negative procedure. Perhaps the Minister could give some examples of amendments to detailed aviation security requirements that might be made under the terms of Regulation 300/2008 and that would go through the process and the procedure mentioned in paragraph 6.4, so that we can get some feel for the kinds of matters that we as Parliament might be being asked to agree to or accept.

I too refer to paragraph 6.6, which contains this reference to “Commission Decision C(2015) 8005”. I think we get some assistance earlier on in the document in finding out the purpose of this decision. It says in paragraph 2.4 that the contents,

“are not published, by virtue of provision in Article 18 of Regulation 300/2008”.

It then states:

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


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

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[Baroness Sugg]

I thank noble Lords for their consideration of these draft regulations. I agree that this is an important SI, dealing with vital security at our airports and in our skies.

The noble Baroness, Lady Randerson, and the noble Lord, Lord Rosser, asked about future regulation-making powers, and I apologise that these were not specified in the EM. Currently, three legal processes are used for agreeing amendments to EU aviation security, and that depends on the level of the regulation. Essentially, we are following what has been done under the previous regulation.

In order to maintain equivalence between existing EU procedure and the proposed UK procedure for making future amendments, the statutory instrument provides the Secretary of State with powers to make amending regulations by affirmative resolution for amendments to provisions currently covered by Regulation 300/2008 and the overarching Regulations 272/2009 and 1254/2009, and by negative resolution for amendments to provisions currently covered by Regulation 2015/1998 and the amendments to that.

[Lord Berkeley]

Does that mean that the Secretary of State intends, through the amendments the noble Baroness has mentioned, that the regulations will stay in line with the European ones as they develop?

[Baroness Sugg]

I am not able to give the noble Lord that reassurance as we are not sure how EU regulations will develop. However, we are of course committed to maintaining our high security record. As has been mentioned, we already have more stringent measures and that will continue.

On the more stringent measures and the Commission decision, the Aviation Security Act gives the Secretary of State powers to give directions to or serve notices on specified parties—for example, directly to air carriers or airports—for the purpose of discharging his aviation security responsibilities. The single consolidated direction is a compilation of the various directions and, after the UK exits from the EU, the single consolidated direction will continue to refer to the retained EU legislation, supplemented already, as I have said, by the more stringent measures. This is essential to maintaining our existing aviation standards, which will be continually assessed and modified, where necessary, to reflect the current threat picture.

The single consolidated direction will also be used to set out the content of the Commission decision, and the content decision will continue not to be published. The information was not published before and will not be published in the future. I understand the noble Lord’s concerns about that but, obviously, if more details were out there on the specifics of what was needed for aviation security that would put us at risk—for example, the specifications of screening equipment, the volume of detection, the criteria for the random testing of airport supplies, details of the exact screening requirements such as what percentage of passengers are checked, and the green list for aviation security. There is no change in this.

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

Lord Berkeley Excerpts

Tuesday 12th February 2019 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I have two brief questions on this statutory instrument. My noble friend the Minister has stated that compensation will be paid in pounds, converted from euros. What if the pound to euro ratio changes substantially over, say, the next two years? Is this something that her department and the Government are likely to keep under review?

I tried to follow the Minister’s explanation as closely as I could. If I have understood correctly, there is one category of flight that UK passengers will no longer be compensated for. I dealt with this myself when I was an MEP and, at one stage, rapporteur on civil aviation in the European Union. I would just like her confirmation that this category of flight is covered. These are flights where passengers start with a UK carrier out of London Heathrow, Gatwick or Stansted, but change at an airport within the EU, such as Amsterdam, to a connecting international flight operated by, for example, Singapore Airlines or Delta Airlines—both of which my husband worked for at separate times—to a destination such as New York or Singapore. Is my noble friend saying that, under these regulations, or in the event of no deal, a UK passenger who is denied boarding that flight in a third-country airport such as Amsterdam will no longer be compensated?

[Lord Berkeley (Lab)]

My Lords, I share the concerns of the noble Lord, Lord Deben, and my noble friend Lord Foulkes about the costs associated with Brexit. I recall the debate in this House yesterday about Seaborne Freight. The Minister said, and I am sure she is right, that,

“no taxpayer money has been transferred to the company”.—[Official Report, 11/2/19; col. 1704.]

However, the cost of dredging is probably several million pounds. Apparently it was being done by the Ramsgate harbour authority. I do not know where it will suddenly get the money from; I am sure it was not budgeted for. It was mentioned in another place yesterday that Slaughter and May had been paid £600,000 to advise the Government on how to write these contracts, which turned out to be non-existent. The Minister should commit to giving the House the total cost, rather than hiding behind, “We are not paying it directly because the dredging is being done by somebody else”, or something like that.

I should like to follow up on some of the questions the noble Baroness, Lady McIntosh, just asked because this SI is very confusing. The first question is: who is a UK carrier? Where will companies such as easyJet and British Airways be registered, and does that matter when defining what is a UK carrier—something that comes into quite a lot of these regulations? Could the Minister tell us not just what is happening today but also how the Government will tell members of the public who is a UK carrier—assuming that it matters? It seems to me that it matters.

On these regulations, there seem to be three different parties: the location of the airport, which may be in this country, the European Union, or a third country—maybe it does not matter; the air service or airline, and whether it is registered in the UK, the EU or a third country, as the noble Baroness mentioned; and who the passenger is. Are they a UK resident, an EU resident, or a third-country resident? There then seem to be different rules for whether you are going out, coming in or getting a return ticket. I do not know whether I am making myself clear—it is probably as unclear as the regulations. The Minister will have to tell us how all these different parts of the regulations I have discussed apply to all those different groups and combinations of groups.

What attracted me to this worry was the phrase,

“if the carrier is a UK carrier”,

in paragraph 7.3 of the Explanatory Memorandum and, in reference to paragraph 7.5, the question of who enforces these regulations. The CAA cannot enforce regulations on airlines from third countries that do not fly into this country at all, but if the CAA does not do it, who will? All these things should affect every traveller who will move by air after 29 March, and I can see some of them getting into real trouble and worrying about this unless there is some clarification. I look forward to hearing the Minister’s response.

[Lord Deben]

My Lords, I am sorry to continue this but various people have an interest in this SI. First, there are customers, who I doubt will read this—if they did, I doubt they would get very far with it for the reasons the noble Lord has just adumbrated. Secondly, there are the airlines, and I am very concerned about what our definition will be—not only here but elsewhere—of, for example, a UK-based airline.

I understand that there are airlines such as British Airways which have a direct association—it owns Iberia. British Airways has said that it may well transfer its base of ownership to Spain. I will not make a statement about Brexit—it manifestly gets stupider and stupider as we move on to discuss the matter—but the truth is that this is a real issue. If British Airways decides that that is the decision it has to make because we have been so damaging to our future that that is the best place for it to be, is it any longer a UK-based carrier? We then have a situation in which we are passing an SI that does not actually apply to the largest airline with a single, dedicated terminal at our largest airport. This is a serious issue. I am sure there is a very easy answer to the question, but it is not one that lies to hand in the SI. What happens when or if it changes, and how do we deal with those changes? That also seems important to me.

--- Later in debate ---

I am reassured by the point the Minister made that EEA businesses registered and operating in the UK will be required to offer full ATOL protection. The question is: what happens to those that are not which British consumers choose to access more widely in Europe? That is going to be an unresolved issue.

[Lord Berkeley]

I am grateful to my noble friend. Does he agree that the prudent thing for the Government to do would be to advise people to think very carefully before booking any flight that leaves after 29 March?

[Lord Adonis]

On the government website, GOV.UK, it does say that. What a message for the state to send out to the people of this country. What advice is that? Does it mean that you should think very carefully and go about your normal business, or think very carefully and not go about it? This is so unacceptable a way for Her Majesty’s Government to proceed that it beggars belief that we could even be having these debates and conversations.

I make no apology for this, because it is a crucial matter. I want to say a few words about consultation. These are huge issues—just those we have been debating in the past 58 minutes, and there are many others—so it is reasonable to expect that the Government would properly consult the companies, the wider industry and the consumer and passenger groups affected. Yet, again, no such consultation has taken place. Indeed, I have noticed—because I am now a connoisseur of the consultation processes that have been gone through on these statutory instruments—that, whereas most of the early statutory instruments had a heading that said, “Consultation” and then usually said something like, “No formal consultations have been undertaken”, that heading has mysteriously been omitted from more recent statutory instruments, I think for the reason that it is somewhat embarrassing for the Government to publish the fact that no formal consultations have taken place. If he is looking for new plotlines, the noble Lord, Lord Dobbs, would keep his readers entertained for years on end with the plots and stories that one could write about no deal.

What is happening on consultation is that the Government are now simply omitting to describe the consultation. What we get instead—we have it on this statutory instrument—is simply a heading saying, “Consultation outcome”, which is intended to elide the lack of consultation with the outcome of a lack of consultation. Of course, your Lordships are not fooled by such elision. What is entered under the heading “Consultation outcome” exhibits the fact that there has been no consultation. Paragraph 10.1 of the Explanatory Memorandum to this statutory instrument, “Consultation outcome”, says:

“Department for Transport Ministers and officials have regular engagement with the aviation industry, travel industry and consumer representatives”.


It would be pretty astonishing if that were not the case, though with the current Secretary of State perhaps it does need to be explained that he has some engagement with members of the human race. It goes on:

“Through specific meetings and workshops on EU Exit, and at long-established stakeholder forums, a number of issues related to the UK’s withdrawal from the EU have been addressed”.


Well, what are the meetings, who are the people who have been at these long-established stakeholder forums, and what are the issues relating to the UK’s withdrawal from the EU that have been addressed? What did the stakeholders say and what is the Government’s response? These are all basic questions about public consultation in the Cabinet Office rules on conducting public consultation.

As I look around the House, about a quarter of us have been Ministers of one kind or another and have gone through these as a matter of form. As a Minister, I was once reprimanded by the Cabinet Office for allowing only a 10-week rather than a 12-week consultation. In the case of all these regulations, there has been no consultation whatever. We are expected to legislate for extreme situations, and to understand the impact on the industries concerned and on consumer groups, on the basis that no public consultation has taken place, with no description of the private consultation that has taken place and with no response from the Government to the points raised in that private consultation.

[Lord Berkeley]

Is my noble friend aware that the next SI we are due to discuss has word for word the same text on consultation as that which he has outlined?

[Lord Adonis]

It is clearly a cut-and-paste exercise—that is what is going on with most of these regulations. I hope that the statutory instrument committees are drawing attention to this. To be frank, in my view this alone is a reason for your Lordships declining to agree the regulations.

--- Later in debate ---

[Baroness Sugg]

I should first point out that these regulations apply to everyone who travels on a plane regardless of nationality, so actually the nationality is not important. The important part is the carrier that operates the flight. In that example, as I said, the flight leaving the UK would be covered by the CAA and the flight leaving Amsterdam, regardless of the nationality of the passenger, would be covered by the existing EU regulations, so that would not change.

[Lord Berkeley]

Will the Minister explain what would happen in the reverse direction? Say you are flying Nigerian Airways from Lagos to Amsterdam with a through ticket to London with another carrier. What is the enforcement on the compensation rules there?

[Baroness Sugg]

They will remain the same. The flight operating into the UK from a third country will be enforced by the CAA, and a flight operating into the EU would be covered by that EU member state. I understand that this is a little complex, so I will list exactly what will be covered.

But before doing that, on code sharing, asked by my noble friend Lady Altmann, the carrier operating the flight will be liable under the regulation, irrespective of who sold the ticket.

I will attempt to be a little clearer than I was in my opening speech. This regulation will apply to: all flights departing a UK airport; flights to the UK from a country other than the UK if on a UK air carrier; flights to EU airports from a country other than the UK if on a UK air carrier; and flights to UK airports from a country other than the UK if on an EU air carrier. That applies to passengers of any nationality.

So in answer to the question asked by the noble Lord, Lord Tunnicliffe, about who will be disadvantaged by this, in short no one will be adversely affected. The aim of this SI is absolutely to maintain continuity after exit day. In the event of no deal, passengers will retain the same rights as they have today. In the event of a deal, which will obviously get us to an implementation period, this SI along with many others will be amended or revoked.

I take the point made by my noble friend Lord Deben that all things aviation will not stay the same in the event of no deal. That is why we are trying to avoid that. But in the case of this SI, the rights will stay the same—

Parking on Pavements

Lord Berkeley Excerpts

Monday 11th February 2019 Lords Chamber

[Baroness Sugg]

My Lords, since the Traffic Management Act 2004 came into force, more than 93% of local authorities in England have taken up the powers. On the specific point about enforcement, I will have to follow it up with the department and write to the noble Lord.

[Lord Berkeley (Lab)]

My Lords, I am sure that the Minister will be aware that her colleague Jo Johnson wrote a circular letter in the autumn to local authorities, praying in aid—about penalties for persons committing nuisances while riding on footpaths—that people shall not,

“tether any horse, ass, mule, swine, or cattle, on any highway, so as to suffer or permit the tethered animal to be thereon”.

This came from the Highway Act 1835. Is it not about time this legislation was updated?

[Baroness Sugg]

My Lords, I was interested to find that cycling on a footway is also an offence under Section 72 of the Highway Act 1835. Obviously, it has been updated with various pieces of secondary legislation. As I say, we are looking carefully at the issues around vehicles on pavements and will respond in due course.

Seaborne Freight

Lord Berkeley Excerpts

Monday 11th February 2019 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

May I press my noble friend?

[Lord Berkeley (Lab)]

My Lords—

[Baroness McIntosh of Pickering]

No we have had two speakers from that side.

--- Later in debate ---

[A noble Lord]

Lord Berkeley!

[Lord Berkeley]

The Minister seeks to blame Arklow for this withdrawal, but the Irish Times says something rather different. It states that Arklow was never “a backer”, did not have “any formal agreement” with Seaborne and was not “a contract partner”. Who is telling the truth?

[Baroness Sugg]

My Lords, the contract was with Seaborne Freight. I have read out extensively the reassurances provided by Arklow, which are set out in the letter published on GOV.UK. The contract, however, was with Seaborne and we entered into that given the reassurances that we had.

Railways: Dawlish

Lord Berkeley Excerpts

Wednesday 6th February 2019 Lords Chamber

Asked by

[Lord Berkeley]

To ask Her Majesty’s Government what progress has been made in improving the resilience of the railway line at Dawlish towards south Devon and Cornwall since the two-month disruption beginning on 5 February 2014.

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

My Lords, Network Rail has worked to develop long-term solutions to make the railway at Dawlish and Teignmouth more resilient to extreme weather, engaging an expert team of tunnel, cliff and railway engineers. This is part of a £15 million investment provided by the Government. The first phase of work to protect the sea wall began in November, with essential repairs now completed to four breakwaters. Following engagement with local stakeholders in autumn last year, Network Rail has now submitted plans for a new, stronger sea wall at Dawlish.

[Lord Berkeley (Lab)]

I am grateful to the Minister for that reply, and am sure the House will wish to congratulate Network Rail on the way it recovered from that terrible accident five years ago where the track was waving in the air with nothing underneath it. However, is the Minister aware that already this winter services have been disrupted on 10 occasions—sometimes because the tide is just over the tracks and the tracks are buried? One solution might be for the Secretary of State to play King Canute, but I am sure he would not want to do that. The alternative is to encourage Network Rail with some funding to go ahead with the issues that the Minister mentioned. Also, will she start looking at the process of reopening the Okehampton-Tavistock line, to provide a better service to Plymouth and Cornwall for when the line by the sea is disrupted?

[Baroness Sugg]

I join the noble Lord in congratulating Network Rail and the orange army who did such a great job of recovery after the storms more than five years ago. We have been clear that ongoing investment in the south-west transport infrastructure is a key priority, and we remain determined to find a permanent solution for Dawlish. As I said, £15 million of funding has been made available, and world-leading engineers have been carrying out detailed assessments. Network Rail is making good progress on its plans, and we are considering them carefully.

On the noble Lord’s point about the regular Okehampton service, we are working closely with the local councils on that. We responded to the future of the Great Western franchise consultation last August, and are looking into what scope of work will be needed to reinstate regular services on that route.

Drones: Consultation

Lord Berkeley Excerpts

Tuesday 29th January 2019 Lords Chamber

[Baroness Sugg]

My Lords, of course it is very important that we take the needs of general aviation users into consideration, as well as drone flyers. As my noble friend points out, the vast majority of drone users behave safely and responsibly. We will continue to work with them as airspace modernisation and drones develop.

[Lord Berkeley (Lab)]

My Lords, the Minister used the word “proportionality” today, and in a previous answer. Could she explain the principle of proportionality between a drone closing Gatwick for two days and people being allowed to do what they like with them elsewhere? It is a bit of a challenge, is it not?

[Baroness Sugg]

The noble Lord is quite right; it is a challenge. We have brought in laws governing the use of drones within airport exclusion zones and across the country. It is against the law to fly your drone above 400 feet, but the noble Lord is right to point out that this is a complex issue.