Transport Act 2000 (Air Traffic Services Licence Modification Appeals) (Prescribed Aerodromes) Regulations 2022

Baroness Foster of Oxton Excerpts

Tuesday 25th January 2022 Grand Committee

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

My Lords, these draft regulations will be made under the powers conferred by the Transport Act 2000. The regulations set out which airports may appeal licence modification decisions made by the Civil Aviation Authority, or CAA, in respect of the en-route air traffic services licence granted under Section 6 of the Transport Act 2000. In essence, this instrument will ensure that the aerodromes likely to be materially affected by a decision to modify a licence condition are able to appeal those decisions.

Air traffic management services in the UK fall into two categories. The first are terminal air navigation services provided at individual airports. They support arrivals, departures, and planes in the vicinity of the airport typically up to an altitude of 7,000 feet. This is a competitive market, with airports procuring these services from a number of possible organisations or providing their own. The second are for planes outside of these areas, such as planes at cruising altitude, or planes being guided to gateways where they can be handed over to terminal control services of airports. These services are delivered by a monopoly provider, regulated under the en-route air traffic licence.

The Air Traffic Management and Unmanned Aircraft Act 2021—the ATMUA Act—updated the Transport Act 2000 to give the CAA a more effective power to modify the conditions of air traffic services licences. Currently, the only licence which has been granted is held by NATS (En Route) plc, also known as NERL, to provide certain air traffic services in the United Kingdom. Under the previous framework, the CAA could only modify the conditions of this licence with consent from the licence holder or via a determination by the Competition and Markets Authority.

To modernise the licensing framework, alongside the powers to modify the licence conditions the Act also introduced a new appeal process into the Transport Act 2000, which gives appeal rights in respect of licence modifications to three parties. The first is NERL, the licence holder; the second is the owner or operator of an aircraft whose interests are materially affected by the decision; and/or an owner or manager of a “prescribed aerodrome” whose interests are materially affected by the decision. Should any of these parties wish to appeal the decision to modify a licence condition, they could appeal to the CMA on one of more of the following grounds, namely: that the decision was based on an error of fact; that the decision was wrong in law; and/or that an error was made in the exercise of a discretion. For the relevant aerodromes to be able to appeal licence modification decisions, they must be prescribed in secondary legislation, which is what this draft instrument seeks to do.

Turning to the content of the SI, the CAA can modify the conditions set out within NERL’s licence. A licence condition relates to operational matters, such as the requirements which the licence holder must meet to maximise safety and efficiency, and includes conditions relating to control of charges—the prices that users of NERL’s services pay for the services that they receive. To modify a licence condition, the CAA first must publish a notice in relation to the proposed modification. It must state that it is proposing to modify the licence and set out what the modification is, the reasons for it and its effect. It must then give a reasonable period for NERL and the other relevant stakeholders to make representations. The Department for Transport consulted on this policy in 2017. Stakeholders were broadly supportive of the policy and no aerodromes at the time requested additional appeal rights.

As the licence conditions include control of charges for the London approach service, the Government have decided that airport operators whose interests could be materially affected by the decision to modify a licence condition are likely to be airports receiving the London approach service from the licence holder, and that these aerodromes should be able to appeal these decisions on the grounds of fairness. The London approach service consists of the control and sequencing of flights between the licence holder’s en-route service, which will be quite high up, and which operationally include holding stacks, and the tower service at London airports, which is quite low down, and which is provided at each airport by an air navigation service provider under contract with the airport operator. Airports currently receiving the London approach service from NERL are Heathrow, Gatwick, Stansted, Luton and London City, and these regulations enable those airports to appeal. These regulations have been drafted in such a way as to ensure that in the future, should another aerodrome become part of the London approach service from NERL under its licence, it too will be able to appeal modifications to licence conditions.

This instrument will ensure that the aerodromes likely to be materially affected by a decision to modify a licence condition can appeal those decisions. It is as simple as that. I beg to move.

[Baroness Foster of Oxton (Con)]

My Lords, I thank my noble friend for the Explanatory Memorandum and the information she just gave us. There are two areas highlighted by the Explanatory Memorandum that are hugely important, which are the failures with computer systems and with NERL. But I want to raise another, which I hope has been fully rectified now. I was the rapporteur in the European Parliament in 2015 on the safe use of civil RPASs or drones, so I will reflect on what happened a couple of years ago, because this is a growing industry and we need to make sure we keep our eye on the ball.

As I recollect, between 19 and 21 December 2018, there were drone sightings at Gatwick. Regrettably, 140,000 passengers and 1,000 flights were affected. This was the biggest closure since the 2010 volcanic eruption in Iceland and, I have to say, the way it was handled became quite farcical. The airport spokesman said they could not do much about it, because there was no counter-drone technology when, actually, there was, albeit it was not at Gatwick then. It also ended with two people being arrested and, fortunately, released and paid compensation. It was not exactly a good look for the UK.

In addition, we must also realise the challenge of geo-fencing in the civil drones sector. This is particularly difficult for airfields, due to their geographical size. For example, Gatwick or Heathrow—a large airport—covers several square miles, but just in their infrastructure and to their boundaries or the end of the runways. That does not include the miles of airspace above, where an aircraft can be at risk either on ascent or descent. We know this is a huge challenge.

Nevertheless, the cost of the investigation was £800,000 and it had to include the police, military and the RAF in particular. The good news that followed was that Gatwick and others installed counter-drone technology in 2019, which is now available across all the appropriate airports in the United Kingdom.

We have a world-class civil aviation industry and reputation, which I am sure all noble Lords agree we must maintain. I ask my noble friend to give me the reassurance that the CAA, which is an excellent regulatory body, will continue to have clear and detailed oversight of this area to maintain our high standards, certainly in this growing industry.

The final point I raise, which will be covered by two other noble Lords so I will not cover it in too much detail, is regarding EGNOS. I was again a rapporteur in the European Parliament on GNSS, so I have a serious interest in the systems we require to make sure our airfields are well-equipped. Since, by all accounts, EGNOS was stopped last year, a number of our peripheral, small airports have been put in huge difficulty. We have flights either being cancelled or their safety jeopardised, for both passengers and crew. They are hugely reliant on life-saving services coming in, whether to take people to the hospitals on the mainland or for other reasons.

I will finalise on those points, because I think my noble friend is aware of them and has passed them on. We look forward to meeting with the appropriate Minister at some stage, and I thank her very much for taking these points on board.