Aviation (Consumers) (Amendment) Regulations 2023

Lord Jones Excerpts

Wednesday 6th December 2023 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Transport (Lord Davies of Gower) (Con)]

My Lords, these regulations were laid in draft before this House on 16 October 2023. The purpose of this statutory instrument is to restate, using powers under the Retained EU Law (Revocation and Reform) Act 2023, key principles of retained EU case law relating to regulation 261/2004. This will help aviation consumers to receive the same protections they currently have when faced with flight disruptions.

Regulation 261/2004, which will become assimilated law at the end of 2023, sets out the rules on compensation and assistance for air passengers in the event of denied boarding, flight cancellation or long delay. Regulation 261/2004 has been the subject of significant amounts of litigation, and the associated case law has shaped the interpretation of this legislation. However, the retained EU law Act will also make it easier for courts to depart from EU case law after the end of 2023. This means that, without the changes made by this instrument, important principles that protect consumers in the UK would be lost.

The SI codifies four key principles needed to maintain the current protections for air passengers, by inserting them into regulation 261/2004. First, passengers will continue to be afforded the right to compensation under Article 7 of regulation 261/2004 where flight delay results in arrival at the passenger’s final destination three or more hours after the scheduled arrival time.

Secondly, the SI codifies principles that make it clear that the rights to compensation, refunds, rerouting, and care and assistance fall within the scope of regulation 261/2004—not Articles 19 or 29 of the Montreal Convention. The Montreal Convention is an international treaty governing airline liability and relates in part to delay of passengers. This is an important point of clarity that will help passengers continue to receive the rights they are currently entitled to, rather than the more limited rights under the Montreal Convention.

Thirdly, the SI clarifies that, for the purpose of regulation 261/2004, a flight comprised of more than one leg will be treated as a whole if it is booked as a single unit, and that such a flight will be considered as departing from the point of departure of the first leg of the journey. This is important because compensation under regulation 261/2004 is linked to the length of the journey and the territory or jurisdictions covered.

Finally, the SI codifies the principle of “extraordinary circumstances” into a clear definition of that term. Such circumstances may give rise to an air carrier being exempt from the requirement to pay compensation. What constitutes “extraordinary circumstances” is a highly litigated topic, so it is important to codify the EU case law in order to provide clarity. I beg to move.

[Lord Jones (Lab)]

My Lords, I thank the Minister for his competent and helpful introduction. Complex and dense though these regulations may be, I see no reason not to support them.

To what degree do the regulations impinge on Cardiff Airport? It has often been in the news. How many airport consumers were there this year and last year? How many cancellations were there? Can the Minister give any feedback as to consumer satisfaction? Has there been any discontent? What is his general view of the future? Does the consumer in greater south Wales have any difficulty accessing Cardiff Airport? As a percentage, how many airport consumers instead make for Bristol or Heathrow airports? Perhaps the Minister will write if these questions are not to be answered in this debate.

The purchase of Cardiff Airport by the Senedd, the excellent Government in Cardiff, was controversial to some degree. Might the Minister say what the situation is now? I acknowledge the Minister’s service to Wales when he was a Member in the other place. He represented one of the finest coastlines in Europe—Langland, Oxwich and Three Cliffs come to mind, and he might know that these bays are fine for swimming; it is truly an area of natural beauty.

There is no aviation without the aerospace industry, and the Minister knows that both are vital to the economy of Wales—for example, Airbus, at Broughton, in north-east Wales, where direct employment involves some 5,000 employees. There is also, as he will know, a big aviation interest in south Wales. These two industries involve a great reservoir of national skills, and these skills in Wales are priceless. Airbus, at Broughton, is a world-class centre in wing manufacture. What links are there between Airbus UK and His Majesty’s Government? How are the interests of the consumer represented?

The Explanatory Memorandum is helpful. The regulations are, of necessity, complex, as is the Explanatory Memorandum in parts—all the pages require insight. However, it is very good to see the word consumers writ large.

[Lord Jackson of Peterborough (Con)]

My Lords, I shall speak briefly in this debate. I feel rather lonely as one of the few English Members here; we have north and south Wales’s finest and other Members as well, and on the Whip’s Bench, of course.

I will add briefly to the comments of the noble Lord, Lord Jones. When I was the special adviser in the Department for Exiting the European Union, this issue was a bone of contention in what later became the trade and co-operation agreement. There was a lot of shroud-waving about this because, of all the issues that were litigated and debated in the run-up to the European Union in/out referendum in 2016, the most acute was how people’s holidays would be affected when they were travelling to and from Europe. For those of us who believed in Brexit, it was always the case that we were not going to enact domestic legislation just for the sake of it, but would assimilate good, practical, sensible and pragmatic legislation where appropriate. I think this is an example of that today.

I particularly welcome the fact that this legislation not only is being enacted in domestic law, particularly on the issue of long delays, but seeks to uplift important case law, including the Sturgeon v Condor Flugdienst case. That goes wider than simply a long delay to a flight; it also considers the material impact that that has on travellers. I therefore strongly welcome the instrument.

It is good that this complements other legislation the Government have brought forward, and they should look at it as protecting the travelling public from monopolistic or oligopolistic behaviour. I know it is not quite within the bailiwick of this statutory instrument, but noble Lords will have seen this week examples of alleged drip pricing by Ryanair, which is price gouging of customers, who are often in a very difficult position—they do not have perfect knowledge in perfect competition, which is the basis of the economic free market. They have excess charges applied to luggage, seat selection, travel insurance, and food and drink. The Minister will have the strong support of many noble Lords from across your Lordships’ House if the Government take a robust attitude to legislation and regulation on this, because it is also an important subject.

It is vital to address delays, particularly for disabled folk, older people and families, but we must not see incremental price gouging and oligopolistic behaviour by rapacious airlines. I hope that the Government—of whatever party after the election next year—address this very important issue.