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

Baroness Vere of Norbiton Excerpts

Wednesday 17th June 2020 Lords Chamber

Moved by

[Baroness Vere of Norbiton]

That the draft Regulations laid before the House on 3 March be approved.

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

My Lords, these draft regulations will be made under the powers conferred by the European Union (Withdrawal) Act 2018.

The regulations amend two EU implementing regulations that relate to safety oversight of air navigation service providers—ANSPs—and network functions respectively. They also revoke one EU implementing regulation that relates to performance and charging, and one EU implementing decision that sets out EU performance targets.

As noble Lords are aware, the Government are committed to ensuring that the UK has a functioning statute book at the end of the transition period, while we continue to work to achieve a positive future relationship with the EU. We have therefore conducted particularly intensive work to ensure that there continues to be a well-functioning legislative and regulatory regime for aviation, including for air traffic management —ATM. This instrument makes changes to the retained EU legislation for ATM, so that the UK retains the regulatory tools to ensure the continued provision and oversight of efficient, safe air navigation services after the UK leaves the EU, as well as to maintain interoperability with the EU after the end of the transition period.

The draft instrument is the second ATM SI relating to EU exit and ensures that the four pieces of EU ATM legislation that have come into force since the first SI was made—the Air Traffic Management (Amendment etc.) (EU Exit) Regulations 2019, which I shall refer to as the 2019 regulations—are legally operable. As noble Lords will be aware, these are detailed technical matters, and I will briefly explain what they do.

Implementing regulation 2019/317 and implementing decision 2019/903 both relate to the EU performance and charging scheme for air navigation services for the period 2020-24. Both are being revoked. Implementing regulation 2017/373, which is being amended, sets out requirements for the safe delivery of air navigation services by providers such as NATS, and their oversight. Finally, implementing regulation 2019/123, which is also being amended, deals with the regulation of network-level air navigation services which are provided by the intergovernmental organisation Eurocontrol in co-ordination with operators.

The SI addresses areas of legal interoperability by removing the roles of EU bodies, functions that cannot be performed by the EU after the completion of the transition period, and provisions where there is already satisfactory UK legislation in place. Where possible, roles currently undertaken by the European Commission and EU bodies are being transferred to the Secretary of State for Transport or to the Civil Aviation Authority—CAA—but where they relate to pan-European functions, including air navigation services delivered by more than one state, they are being removed.

This instrument makes changes to the retained EU legislation to ensure appropriate national arrangements for the provision and oversight of air navigation services after the UK leaves the EU. Some EU regulations will not work as domestic legislation after the end of the transition period and so should not been retained.

The approach taken in the first SI, the 2019 regulations, in respect of the EU’s previous performance and charging schemes regulations was to revoke them. The scheme is a top-down system for the economic and performance regulation of air navigation services based on reliance on targets set at an EU level. It also contains numerous roles for the European Commission and its performance review body. It is therefore legally inoperable once saved into UK law.

The UK had a domestic system of performance and economic regulation under the Transport Act 2000 prior to EU competence. This legislation is still in force as it is compatible with the EU arrangements and contains other requirements such as the licensing arrangements for the UK’s main air navigation service provider, NATS. As a result, the UK will not retain the EU regulations and instead rely on the Transport Act 2000 for the CAA to carry out duties in respect of economic regulation of NATS. These regulations therefore revoke the EU regulations in this area, taking a consistent approach to that taken in the 2019 regulations. The CAA and NATS support this approach.

In February last year, when the 2019 regulations were made, EU implementing regulation 2017/373 was partially applicable in respect of provisions for data service providers and the roles of the European Aviation Safety Agency, or EASA, in respect of oversight of pan-European services. As the EU regulation became fully applicable on 2 January 2020, it is now necessary to make further amendments to it.

Similarly, this instrument amends Commission Implementing Regulation (EU) 2019/123, which deals with the regulation of network-level air navigation services. This entered into force on 1 January 2020 and was therefore not included in the first SI, made in February 2019.

In summary, all the amendments being made in this instrument address areas of legal inoperability by removing roles of EU bodies, functions that cannot be performed by the UK after the end of the transition period and provisions where there is already satisfactory UK legislation. The approach taken is consistent with the 2019 regulations approved by your Lordships’ House in February last year.

The instrument makes no changes to the policy intent of the EU’s ATM regulations and is consistent with the approach taken in the first SI. The instrument maintains the existing regulatory framework and technical requirements for ATM to ensure continued provision of efficient, safe air navigation services and the effective regulation of the UK ATM system. I commend the instrument to the House.

--- Later in debate ---

[Baroness Vere of Norbiton [V]]

My Lords, I thank all noble Lords who have taken part in this debate on these minor and technical changes to these ATM regulations. Given the allotted time, I fear that I will not be able to go into all the issues that are beyond the scope of these regulations, but I will certainly write, in particular on the future of the aviation sector and the implications of Covid for it, mentioned by the noble Baroness, Lady Ritchie. I will also address her specific point about the impact on Northern Ireland.

I should like first to confirm to the noble Lord, Lord Rosser, that there is no change in policy as a result of these regulations and that, in practical terms, they will have very limited effect. The CAA will continue to play the role it has always in, for example overseeing the work of NATS, with oversight of that work transferring from the European Aviation Safety Agency to the Secretary of State. We do not anticipate that this will have a financial or significant practical impact on the CAA or NATS and both are content with the proposals. The CAA will take on a number of new tasks after the end of the transition period, but that is a direct result of EU transition rather than of this SI. The Government are working closely with the CAA to ensure that it is sufficiently resourced to take on any additional roles. Further, the CAA has been preparing for the possibility of leaving the EASA system since the EU referendum in 2016, which is four years ago now. It has already started recruiting new staff across the organisation, and I reassure noble Lords that it has the funding to do so. I hope that this will also reassure the noble Baronesses, Lady Kennedy and Lady Randerson, as well as my noble friend Lord Blencathra. He was right to say that the CAA is a great British asset. In respect of this SI, the requirements on the CAA and NATS will be the same as they are at present, and the oversight will be transferred somewhere different.

The reference period for performance targets started this year. To meet our obligations, we have produced and submitted an EU-compliant plan that takes us to 2024, so until at least then, all performance targets will remain the same. Beyond that, we envisage looking at the EU targets and using them as a benchmark for our own performance targets. However, we may decide that we want to do better than that, although that decision is for some years hence.

Turning to the charges, the costs of air navigation and its regulation tend to fall on the users of the service. In this case, that is the aviation industry.

A number of our other existing arrangements will stay the same or transfer to the CAA. Noble Lords raised a number of these different arrangements and I shall try to cover some of the most important. The noble Baroness, Lady Kennedy, mentioned Eurocontrol. It is incredibly important and the UK will remain a member of it. It is an intergovernmental organisation of 41 states across Europe that pre-dates the single European sky and is not an EU body. This will ensure our continued co-ordination on air traffic management with other European states. This was brought up by the noble Lord, Lord Bradshaw, and my noble friend Lord Balfe.

Through our membership of Eurocontrol, NATS will be able to co-ordinate with other air navigation service providers on, for example airspace change proposals arising from the UK modernisation programme, and there are established bodies within Eurocontrol that allow that to happen. NATS is also remain a member of the Civil Aviation Navigation Services Organisation, which represents ANSPs covering 90% of the world’s airspace. We are plugged in and we do have leadership.

We are also members in our own right of ICAO, an incredibly important organisation in aviation. We will continue as a contracting ICAO state after the end of the transition period. Much European regulation originates in ICAO and the UK already plays a leading role in its structure. Currently, the UK complies with some ICAO standards and recommended practices via the implementation of EU legislation. Following the transition period, the UK will comply with SARPs using domestic legislation. That is all in place and ready to go.

The noble Lord, Lord Rosser, mentioned cross-border arrangements and what will happen at borders. The UK has a number of cross-border agreements with neighbouring countries, such as France and the Benelux nations, in respect of air traffic management, particularly in contiguous airspace where an aircraft is handed over between two different airspaces. I reassure the noble Lord that these arrangements will continue as they are not predicated on EU requirements.

A number of noble Lords mentioned the importance of Ireland. The noble Baroness, Lady Randerson, did so, as did the noble Lord, Lord Empey. This is important because we work very closely with Ireland because both have been delegated responsibility by ICAO for air traffic services over a proportion of the North Atlantic, which as noble Lords will know is a busy route. Again, this is an international agreement. There will be continued co-operation with Ireland to ensure the safe passage of air traffic over the North Atlantic, given that 80% of air traffic entering or leaving the EU flies through UK airspace.

A number of noble Lords mentioned air service agreements and how they have been constructed. The UK was involved in 17 air service agreements by virtue of its membership of the European Union. Over recent months and years, the Department for Transport has undertaken an intensive programme of work in this area, supported by the CAA, which many noble Lords had questions about. We now have new bilateral agreements, or effective mitigations, in place for all 17 non-EU countries where market access is currently provided for by virtue of our EU membership. These arrangements ensure that there will be no disruption going forward. The UK also has agreed bilateral air safety agreements with the US, Canada and Brazil, which will help our aerospace manufacturers.

The UK’s future relationship on ATM with the EU will be negotiated as part of a comprehensive air transport agreement, known as CATA. The CATA will include provisions on market access for air services, close co-operation on aviation security, and collaboration on ATM.

A number of areas under the umbrella of the Single European Sky project, mentioned by the noble Lords, Lord Foulkes and Lord Bradshaw, and the noble Baroness, Lady Randerson, are being considered as we look at how we might continue to be involved in that area; for example, through membership of the Single European Sky air traffic management research programme, which was mentioned by my noble friend Lord Naseby. We will of course be bound by various elements of legislation from the Single European Sky project, where it has been retained, and as amended.

The rules for safety assurance are currently set out by EASA, and these will be retained. No divergence is anticipated at the current time, as safety is of course an absolute priority. However, it is also an area which is always developing, and so the UK may need to make changes in the future; for example, to accommodate new technology to suit airline operators, in line with international practice. I hope that this reassures the noble Lord, Lord Rosser, as to what we might want to do in the future.

Noble Lords will have heard it confirmed many times that the UK is not seeking to participate in the EASA system. Our ambition is to agree bilateral aviation safety arrangements with the EU, and the EU’s negotiating mandate mirrors this approach. A bilateral aviation safety agreement will facilitate the recognition of aviation safety standards, maintain high safety outcomes, and enable regulatory co-operation between the two areas.

Overall, I reassure all noble Lords that the UK continues to press for reciprocal, liberalised aviation access between and within the EU and the UK. In the event that we do not reach an agreement, the UK previously published a policy statement allowing for EU carriers to operate to the UK, and the EU adopted a continency regulation to provide UK carriers with the rights to operate in the EU. These measures were unilateral and work on the basis of reciprocity. Similar arrangements were put in place with regard to safety, and they too will need to be looked at in the event that there is no deal.

My noble friend Lord Naseby mentioned consultation. There has been extensive consultation on elements relating to aviation, and of course on the UK’s exit from the EU. This is ongoing.

The noble Lord, Lord Empey, is right that aviation is reserved. However, as a courtesy, and to understand the issues, we always try to engage with the devolved Administrations on an ongoing basis.

The noble Baroness, Lady Jones, mentioned “shall” changing to “shall endeavour to”. I reassure her that that relates to the network management part of the SI, and is about operators taking account of EU documents, which we have no obligation to do.

In closing, I once again thank all noble Lords for contributing to the debate today. These changes are minor and technical, and do not represent a major change in policy. They follow in a similar vein to the SI already approved by your Lordships’ House. I beg to move.

Motion agreed.