Air Traffic Management and Unmanned Aircraft Bill [HL]

Baroness Vere of Norbiton Excerpts

2nd reading & 2nd reading (Hansard): House of Lords & 2nd reading (Hansard)
Monday 27th January 2020 Lords Chamber

Moved by

[Baroness Vere of Norbiton]

That the Bill be read a second time.

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

My Lords, aviation has long been at the heart of the United Kingdom’s economic success. This is an industry that contributes at least £22 billion to the UK economy, along with over 230,000 jobs, and it is growing to meet rising demand. Passenger numbers have increased for seven consecutive years, and it is estimated that UK passenger traffic could increase from 292 million passengers in 2018 to 435 million by 2050. A thriving aviation sector brings more visitors to the UK, as well as increased trade and business investment. Our regional airports and the connections, jobs and investment they provide spread these benefits across the country.

Airspace is key, but it is a largely invisible component of the aviation sector. UK airspace is the gateway between Europe and North America, the world’s busiest intercontinental air corridor. Its efficient operation is crucial for managing international air traffic across the Atlantic. It is also some of the most complex airspace in the world, and it has not undergone significant change since the 1950s. It is now struggling to keep pace with the growing demand for aviation and to take advantage of the capability of today’s modern aircraft.

More and more traffic is being squeezed into the same congested areas of airspace. This leads to inefficient flight paths, an increase in carbon emissions, significant passenger delays and poor resilience to disruption, caused by either bad weather or technical difficulties. Without change, the situation will deteriorate further in the coming years. The skies over the UK will continue to get busier as the aviation industry expands and incorporates new types of airspace users such as unmanned aircraft and commercial spaceflight.

The DfT published the strategic case for airspace modernisation in February 2017. It estimated that by 2030 one in three flights arriving or leaving an airport is likely to be delayed by an average of 30 minutes. That is 72 times higher than in 2015 and would be very damaging for passengers, businesses, the economy, communities and the environment.

Our airspace is also increasingly being used by unmanned aircraft, often referred to as drones. There are exciting benefits to society of embracing unmanned aircraft technology. Our police, fire, and search and rescue services all regularly use unmanned aircraft in emergency situations to help save lives. They are also being used to inspect and maintain important national infrastructure, reducing the risk of accidents and driving productivity and efficiency.

Unmanned aircraft technology is expected to bring significant benefits to the UK’s economy in the coming years. However, the careless, inconsiderate and malicious use of drones and other unmanned aircraft poses a safety risk to others. The number of incidents of manned aircraft encountering unmanned aircraft increased from just six in 2014 to 126 in 2018. To maintain the UK’s position as a world leader in aviation, we must: ensure that regulations support sustainable growth; make journeys quicker, quieter and cleaner; and ensure that new technologies such as unmanned aircraft are used safely.

That is why the Government have introduced the Air Traffic Management and Unmanned Aircraft Bill, which is set out in three parts. The first modernises our airspace, making journeys quicker, quieter and cleaner; the second modernises the UK’s air traffic services, ensuring that aircraft can move safely and efficiently through our skies; the third improves public safety, through greater police enforcement powers to ensure safe and lawful use of unmanned aircraft.

I will now provide more detail on each of the three parts of the Bill, beginning with Part 1: airspace change proposals. For those who may be less familiar with the concept of airspace, it is the volume of space above ground level, basically extending as far as an aircraft can fly. An airspace change proposal relates to changes to managed airspace and the flight procedures and air traffic control procedures used within it. A programme of airspace modernisation is already under way to redesign the UK’s flightpaths to deliver quicker, quieter and cleaner journeys, and more capacity for the benefit of those who use and are affected by UK airspace. It is being delivered by the aviation industry, and is co-sponsored by the independent regulator, the Civil Aviation Authority—the CAA—and the Government.

The UK’s airspace is highly interdependent, particularly over the south-east region. For airspace change to take place, airports and NATS—formerly National Air Traffic Services—have to work together to take into account the needs of neighbouring airports, as well as their own. If one airport pulls out of the programme, that could delay the whole modernisation programme, which in itself is a very complex undertaking. Should this situation occur, neither the Government nor the CAA currently has the powers to guarantee that airspace change is taken forward.

The Government are working closely with the industry to encourage voluntary participation. However, if an airport is unwilling to participate voluntarily, the new powers in the Bill will enable the Secretary of State to compel airports to bring forward airspace change proposals, ultimately ensuring that the aviation modernisation programme is delivered. This includes airspace changes that direct airports to release underused controlled airspace so that general aviation users can better access it.

On Part 2 of the Bill, air traffic services, it has been 18 years since the establishment of an economic regulatory regime for the provision of en-route air traffic control services. These services are provided by NATS (En Route) plc, helpfully referred to as NERL, which is regulated by the CAA. During those 18 years, the technological and economic landscape of air traffic services has changed rapidly. This has led to growing pressure to improve efficiency and resilience.

The current process for modifying the en-route air traffic services licence is inefficient and impractical. The CAA can make changes to a licence only with the consent of NERL, which is the licence holder, or via a determination by the Competition and Markets Authority—the CMA. This means that important changes to the licence could be delayed or may fail to be implemented at all. The licensing framework needs to be modernised to ensure that it remains fit for purpose, continues to build on the UK’s excellent safety record, satisfies demand, and continues to be resilient.

The provisions in the Bill will allow the CAA to take a more direct and independent approach, and make the licence changes it considers necessary to protect consumers and respond to changes in air traffic services over time. However, it is important to note that the licence holder—currently NERL—will still retain the right to appeal to the CMA against any changes if it so wishes.

The Bill also updates the enforcement and penalties regime to ensure that the CAA can effectively regulate NERL in the interests of users and consumers. This includes the introduction of more proportionate sanctions, bringing the regulatory regime into line with other modern regulatory systems. I draw the attention of your Lordships’ House to some minor technical government amendments concerning paragraphs 11, 12 and 13 of new Schedule B1 to the Transport Act 2000, which is contained in Schedule 5 to the Bill. These are purely technical amendments, but they aid the CAA’s ability effectively to manage NERL’s licence through the use of penalties.

On Part 3 of the Bill, unmanned aircraft—often known as drones—advances in technology have resulted in unmanned aircraft becoming increasingly available, capable, and easy to use. This has led to an increase in use for commercial purposes and has given a wider range of leisure users and hobbyists greater enjoyment. We are already starting to see the benefits of the commercial use of unmanned aircraft in areas such as surveying and search and rescue. As the technology continues to evolve, unmanned aircraft will be able to fly faster, for longer and at higher altitudes, unlocking the potential for new types of operation.

However, as this technology develops, so do the risks. Careless and inconsiderate users can cause a nuisance and pose a safety risk to others. There are also those who would deliberately use unmanned aircraft for criminal acts, whether to facilitate organised crime, disrupt our national infrastructure or, in extreme cases, commit acts of terrorism.

The drone incursions at Gatwick Airport in December 2018 resulted in major disruption, flight cancellations and significant economic damage, highlighting how significant the impact of malicious drone use can be. But this new legislation is not just about keeping our airports safe. The provisions in the Bill will help protect our prisons, civil nuclear sites and other critical infrastructure, which are vulnerable to the malicious use of unmanned aircraft. Drones are being used to smuggle drugs, weapons, mobile phones and tobacco into prisons. In 2018, there were 168 incidents of drones being used to smuggle items into prison. This places prisoners and prison staff at risk and undermines rehabilitation. In addition, between January 2017 and September 2019, eight civil nuclear sites across the UK reported 22 separate incidents involving drones.

The Government are committed to harnessing the positive impacts of unmanned aircraft and supporting the industry to grow, but this must be done in a way that protects the safety and security of people, other aircraft and sensitive sites. I want to be clear that these risks to safety and security apply to all unmanned aircraft, be they drones, model aircraft or other types of unmanned aircraft, which might become more widely used in the future.

The Government recognise that the majority of unmanned aircraft users already fly responsibly and within the law, and I am acutely aware of, and support, the strong safety culture fostered by the majority of model aircraft flyers and clubs. However, there have been instances of model aircraft being flown illegally. For example, in January 2019, just one month after the Gatwick incursion, a model flyer was convicted of flying a small unmanned aircraft without permission within the flight restriction zone around Heathrow Airport. It is essential that the regulatory framework in the UK reflects the reality of the risk posed by all users of unmanned aircraft.

As the misuse of unmanned aircraft has increased, challenges have emerged in pursuing effective enforcement and investigation. Work with the National Police Chiefs’ Council, Police Scotland and the Police Service of Northern Ireland has established that there are gaps in the powers available for police officers to investigate and prosecute those suspected of breaking the law.

For instance, there is no existing power that permits a constable to require a person to ground an unmanned aircraft, to stop and search a person, or to enter and search premises under warrant, if a constable believes that a relevant offence involving an unmanned aircraft is about to be, is in the process of being or has been committed. Take the following example: a remote pilot is suspected of breaching the Air Navigation Order by flying in a congested area. However, the police are unable to catch the drone pilot in the act. By the time the police officer arrives at the scene, the drone pilot has already put his drone away in the car. The police constable has no powers to search the car to find the drone and therefore no action can be taken.

The provisions in the Bill will address these operational gaps. The police will be given the necessary powers to require an unmanned aircraft to be grounded, to stop and search persons and to enter and search premises under warrant. They will also be given powers to: require a person to produce documentation or evidence of the permissions or exemptions required under the ANO 2016, such as permission to fly in the flight-restricted zone of a protected aerodrome; require a person to produce evidence of remote pilot competency and operator registration, which became a legal requirement for those wishing to fly small unmanned aircraft on 30 November 2019; and issue a fixed penalty notice for less serious unmanned aircraft-related offences. The Bill will also enable interference with property or wireless telegraphy in order to prevent or detect certain offences involving the unlawful use of unmanned aircraft.

The Government are determined to ensure that unmanned aircraft are used safely and securely, and to provide the right platform to harness the wide-ranging opportunities and benefits they can bring. It is not our intention to make it difficult to realise the potential of this technology, and for those who operate an aircraft responsibly and safely, they should not be an impediment. In fact, those who follow the rules have much to gain from the creation of safer and more secure conditions for all unmanned aircraft operations.

The Bill is critical for ensuring the efficient management and safe use of our skies. It will enable the UK to maintain its position as a world leader in aviation, ensuring that the legal framework keeps pace with new technology and supports sustainable growth in the aviation sector. I beg to move.

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[Baroness Vere of Norbiton]

My Lords, I thank all noble Lords who have participated in today’s wide-ranging debate. The Government will respond to all the questions raised—unfortunately, probably not all today, but I will endeavour to get a communal letter out to all noble Lords who have participated so that, in advance of Committee, we have provided the correct information. The quality of contributions has been significant, and I will try to rattle through as many of the issues raised as I possibly can.

The noble Lord, Lord Tunnicliffe, my noble friend Lord Naseby and other contributors wondered whether the Government have been too complacent about drones and whether the timetable was sufficient to get the legislation to your Lordships’ House. There has of course been an election, and various other hiatuses in the progression of legislation through Parliament. However, that relates only to this Bill, and the Government have been absolutely on top of making sure that appropriate changes have been made to the Air Navigation Order 2016 and to previous air navigation orders. Legislatively, the Aviation and Maritime Security Act has been in place for many years, so regulations have been in place. The Bill before your Lordships’ House today gives the police powers to enforce regulations that have been in place for some time.

If that were not enough, we now have more regulation coming from the EU in the form of a delegated Act and an implementing Act. The delegated Act deals with product specifications for drones and the implementing Act deals with drone registration and operator elements, such as we in this country have already put in place. I therefore believe that the regulatory framework is there for us to use. Now, as a Government, we need to make sure that the police have ability to take that forward.

A number of noble Lords noted that the police powers were originally consulted on in a Home Office consultation that came out and was completed before the Gatwick incident. I reassure noble Lords that we have of course been in touch with members of the police force around Gatwick and, indeed, all over the country to make sure they are content with the powers in the Bill. We believe that they are. We have a close relationship with them, so they have been involved since Gatwick in making sure these powers are appropriate. Of course, we still meet with the police and other stakeholders to discuss these matters in general.

Stop and search was noted by some as being in the previous Home Office consultation. Not only have we been discussing this with the police; a cross-government working group also looked at stop and search powers. It is also worth noting that the cross-government working group agreed that the focus of the powers should not only be directed towards aviation and airports but be applicable to other areas such as prisons, which should lead to greater security. Of course, the world of drones and airspace change never stops, so we will continue to review the legislation to ensure it remains fit for purpose, particularly for drones. However, we cannot delay any longer and I believe that the Bill is a good way to take this forward.

There are important elements of the product standards that came in with the EU regulations on 1 July, for which there is a three-year transition period. They are electronic conspicuity, meaning that each drone will be discoverable and identifiable, which will help as unified traffic management progresses; and geo-awareness, which is already in legislation and therefore does not need to be added to the Bill.

A number of noble Lords have talked about the important issue of aviation and the environment. It is all very well talking about quicker, quieter and cleaner journeys, but not if the latter is not the case. If we can sort out our airspace, we believe that fuel burn from aircraft will be reduced by 20%. That is already a 20% reduction in carbon. More broadly, aviation needs to play its part in the UK reaching its net-zero target. We are carefully considering the recent aviation advice from the Committee on Climate Change, and we will shortly publish for consultation our position on aviation and net zero. That builds on the work we did with the aviation strategy 2050: we consulted and gained an enormous amount of feedback on what we should be doing with our aviation sector. We will take that forward.

It is not just carbon that is important; it is also about air quality. The industry is looking at reducing airport-related emissions, given that airborne emissions account for a very small percentage point of air quality concerns.

The noble Lord, Lord McNally, and my noble friend Lord Davies of Gower mentioned noise, an incredibly important and much-underappreciated element of the airspace modernisation programme. Modern aircraft can take off and land using much steeper angles of departure and arrival, so we can reduce the overall amount of noise experienced by householders. Airports are also beginning to use performance-based navigation, which means there are ways to direct planes to at least give respite to certain communities during the day. The Government take noise very seriously. We set up ICCAN at the beginning of last year to look more carefully at what we must do about airport noise and its impact on communities.

Turning to the Bill itself, the noble Lord, Lord Rosser, mentioned the number of delegated powers in it. I agree with him: when I saw it, it fair took my breath away. However, I have been through each of those powers with a fine-toothed comb and I am convinced that this is the most effective way to provide these powers. I say to all noble Lords who are interested in the delegated powers that, following the Government’s report, the DPRRC did not have any issues to raise with the House after reviewing those powers. I would be very happy to set up a specific briefing: the Bill puts new schedules into other Acts—for example, the Transport Act 2000—so the entire framework is a little complicated. I am convinced that even the Henry VIII powers have a rightful place in the Bill, but I am very happy to help wherever I can.

With reference to the devolved Administrations, the section of the Bill relating to activities around prisons is a devolved matter in Scotland and Northern Ireland. My department has written to both nations and the officials are currently liaising with their counterparts regarding the next stage of the process. We will continue to work very closely with them.

Turning to airspace change, mentioned at length by my noble friends Lord Goschen and Lord Naseby, and the noble Lord, Lord Tunnicliffe, this is a complicated area. I will commit here and now that I am very happy to organise a briefing on airspace in general, to provide the context required to properly understand the powers that are being asked of your Lordships’ House throughout the passage of this Bill.

The noble Lord, Lord Tunnicliffe, asked whether airspace change was nationally controlled. It is nationally mandated and nationally organised. The point about airspace change is that there are many layers, a little like an onion. Various people will be involved at various stages, but it is critical that given the change to the structure of CAP1616—the CAA’s process for airspace change—the amount of consultation and the number of stakeholders that are consulted within airspace change proposals has increased. I reassure the noble and gallant Lord, Lord Craig of Radley, that the military is at the heart of that. We have commercial aircraft, civil aircraft, military aircraft and general aviation, and local communities also have a significant part to play in responding. When I was—for at least five minutes last year—Aviation Minister, I chaired the Airspace Strategy Board. That was always a pleasure, because it brings together at a ministerial level civil aviation, general aviation, the military, the airports and the airlines. It is a good forum for discussing airspace change and how to make it as effective as possible. I reassure noble Lords that there is an over- arching control at the top in terms of getting people’s feedback in.

[Baroness Randerson (LD)]

I thank the Minister for her detailed explanation. In preparation for this debate, which I have not spoken in, I asked the CAA about the control of airspace. I concur with the Minister that it is complicated. However, the appeal process for an aerodrome—as the Bill puts it—that wants to appeal against the CAA’s decision, goes to the Competition and Markets Authority. I am interested to know how the Government alighted upon the CMA as the appropriate body for appeals.

[Baroness Vere of Norbiton]

I thank the noble Baroness for her question. I shall have to write to her because it involves a level of detail into which I cannot go today.

I will skip over organisations such as ACOG, which has been set up by the CAA and will co-ordinate the airspace changes master plan. Again, I propose that my team produces a short two-page briefing and then we can have a verbal briefing thereafter.

My noble friend Lord Davies of Gower referred to the airspace changes and the process that the CAA uses. I have mentioned CAP1616, which was updated by the CAA in 2018 and is not due for change just yet. However, the point is that no airspace changes proposals have completed CAP1616 yet because it takes two to three years and involves seven stages and multiple consultations. It is very thorough.

The noble and gallant Lord, Lord Craig of Radley, mentioned specifically that the MoD needs access to airspace to train pilots. Of course it does, to maintain the competency of the UK’s defence needs. The MoD acts as an airspace change sponsor and therefore is responsible for the airspace around its own bases.

My noble friends Lord Goschen and Lord Kirkhope both mentioned general aviation and the reclassification of airspace. The Secretary of State has directed the CAA to develop and publish a national policy for the classification of UK airspace and to keep classification under regular review. The CAA has launched a consultation to identify volumes of controlled airspace in which the classification could be amended to better reflect the needs of all airspace users. This consultation closes on 3 March and the CAA will then shortlist volumes of airspace for potential amendments. Overall, the CAA has a responsibility to minimise the amount of controlled airspace.

The cost of airspace change is also important. It can vary from a few hundred thousand pounds to up to £5 million for some of the largest airports. The Government recognise that there may be occasions when a small airport requires financial assistance to carry out some aspects of airspace change, particularly if this results in airspace change in other airports and involves reaching an agreement about how it will all fit together.

The noble Lord, Lord McNally, mentioned artificial intelligence. This is not currently used in air traffic control or to fly an aircraft but it is recognised that there may be potential in artificial intelligence, particularly around aircraft safety and to reduce air traffic delays, but at the moment it is not a feature of the system.

On the third part of the Bill—“Unmanned Aircraft” —and the clause on general police powers, noble Lords will recognise that drones can be used positively. This is important and the Government are doing all they can to support the drone industry. My noble friend Lord Naseby referred to the weight limit within the drone sector and its applicability in relation to the Bill. Schedule 8—“General police powers and prison powers relating to unmanned aircraft”—does not have an upper weight limit and therefore goes above the 20 kilogram limit that usually applies to certain things, and it gives powers to a constable to ground an aircraft to stop and search, and so on. Schedule 9 gives the police powers relating specifically to the requirements in ANO 2016 and is applicable to unmanned aircraft up to 20 kilograms. The proposals relating to registration, competence and so on do not apply to unmanned aircraft of less than 250 grams.

The noble Lord, Lord Whitty, valiantly almost completed his speech. At the start of it he mentioned the EU Select Committee report in 2015. It is an important report and many of its recommendations have been implemented or are currently in the process of being implemented. The UK launched its registration and competency testing scheme for drones in November last year. To many people’s surprise, the number of people who have registered with the system is higher than forecast, and I am delighted that it is doing well. More than 80,000 people have registered with the system to date and more people sign up every day.

The noble Lord, Lord McNally, mentioned that he will probably table amendments to tighten and extend the regulation of drones. The purpose of the Bill is to improve public safety through the police enforcement powers. That is the focus of the Bill; therefore, it is probably not the correct vehicle for further unmanned aircraft regulation, but the EU regulations are already in law and they will be developing our legislation. We will continue to consider whether the regulations in the Air Navigation Order are fit for purpose.

My noble friend Lord Naseby mentioned fixed penalty notices. I would be very happy to discuss this in more detail outside the Chamber. Our intention is that fixed penalty notices will be given only in relation to the most minor offences where certain conditions listed in the Bill are met. These include that no other aircraft was endangered and that no other person was harmed, harassed, alarmed or distressed. The first regulation that we put down will specify exactly what will be subject to a fixed penalty notice. It will be an affirmative regulation and will therefore be debated in your Lordships’ House.

A question was asked about whether stop-and-search demographics will be available for those subject to a stop and search under these powers. Yes, they will be published by the Home Office in the usual way.

Police training and guidance are critical. Guidance is being drafted at the moment with the assistance of the police. It will be given to the College of Policing as well as to individual police forces. Noble Lords will be aware that the UK Counter-Unmanned Aircraft Strategy was published in October 2019. A specific unit is being set up—the new national police counter-drones unit—which will be critical in advising police forces how and when to utilise the powers. These are the specialists mentioned by the noble Lord, Lord Bradshaw.

I am well aware that I am running out of time. I have committed to write, and I will. I want to finish on counter-UAV technology because it is important and something that some noble Lords might imagine would be in the Bill. The issue is that counter-UAV technology is under development. There are two types. The first is to detect, track and identify. It tries to find the drone so that the police know where it is. At the moment, systems are being tested by the CPNI and a list of approved systems is being published, but these systems are a work in progress.

[Lord Campbell-Savours]

On confiscation, will the Minister discuss it with her officials so that we are informed prior to Committee?

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[Baroness Vere of Norbiton]

I thank the noble Lord for his intervention. I was going to get to that, but if he does not mind I will ensure that there is a full discussion of the point he raised when I write, and it will be soon.

The second is effector technology: how do you take the drones out of the sky? That is where the destruction of property and the wireless telegraphy powers in the Bill are critical. When we have effector technology that works we will need these powers to enable the drones to be taken out of the sky to prevent them doing harm.

I thank all noble Lords who have taken the time to speak in today’s debate. I am looking forward to Committee and to being able to share more information with noble Lords shortly.

Bill read a second time and committed to a Committee of the Whole House.