Unmanned Aircraft (Amendment) (EU Exit) Regulations 2020

Baroness Vere of Norbiton Excerpts

Monday 7th December 2020 Grand Committee

Moved by

[Baroness Vere of Norbiton]

That the Grand Committee do consider the Unmanned Aircraft (Amendment) (EU Exit) Regulations 2020.

[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 European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020. The regulations amend EU Delegated Regulation 2019/945, which sets out new product standards for unmanned aircraft, and EU Implementing Regulation 2019/947, which sets out new requirements for the operation of unmanned aircraft. The regulations also make minor changes to the Air Navigation Order 2016 by removing references to the European Aviation Safety Agency—EASA—to ensure that flight restriction zones around protected aerodromes continue to function, and to Regulation 10 of the Operation of Air Services (Amendment etc.) (EU Exit) Regulations 2018 to ensure that the savings provision applies from 31 December 2020.

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[Baroness Vere of Norbiton (Con)]

My Lords, I will continue. I was just about to talk about the background to the EU regulation, and I will focus on the unmanned aircraft element of these regulations.

EU Regulation 2019/945 requires unmanned aircraft and associated accessories to be designed and manufactured in accordance with certain standards. It creates classes of unmanned aircraft and defines the characteristics of those classes. It imposes certain obligations on manufacturers, importers and distributors, such as ensuring that an unmanned aircraft is accompanied by the manufacturer’s instructions. It also defines those unmanned aircraft whose design, production and maintenance shall be subject to certification. This regulation entered into force and became applicable on 1 July 2019. However, transitional provisions mean that while most existing unmanned aircraft can continue to be sold for now, products placed on the market after 1 January 2023 must comply with the requirements of the delegated regulation.

EU Regulation 2019/947 requires unmanned aircraft to be operated in accordance with certain rules and procedures. It creates operational categories that unmanned aircraft can be flown in, proportionate to the level of risk posed by an operation. The open category, for the lowest-risk operations, requires operators and remote pilots to abide by certain requirements. If those requirements cannot be met, an authorisation must be obtained to fly in the specific category. The highest-risk operations, including the use of unmanned aircraft designed for carrying dangerous goods or transporting people, must occur in the certified category. This requires the certification of the unmanned aircraft and the operator, and, where applicable, the licensing of the remote pilot. This regulation also imposes requirements on operators and remote pilots to ensure that operations are carried out safely and securely. For example, remote pilots must meet any applicable competency requirements for the flights they undertake. The regulation entered into force on 1 July 2019, but it is not applicable until 31 December this year. Therefore, it will still be retained in UK law.

As civil aviation is a reserved policy area, both regulations apply to the whole of the United Kingdom. The withdrawal Act will retain both the delegated and implementing regulations in UK law after the end of the transition period. This draft instrument makes the changes necessary so that the regulations continue to function correctly. This is essential to ensuring the continuation of an effective regulatory regime for unmanned aircraft.

This instrument is subject to the affirmative procedure because it creates or amends a power to legislate. For example, it provides the Secretary of State with the power to make regulations designating geographical zones for safety, security, privacy or environmental reasons.

The most significant amendment being made to the delegated regulation is providing a new power for the Secretary of State to designate standards after the end of the transition period. Until that power is exercised, unmanned aircraft and associated accessories that conform to EU harmonised standards will continue to be considered compliant with EU requirements, and those requirements will be recognised in the UK. It is not possible for these harmonised standards to be recognised in UK law as yet as they are still under development.

Another significant amendment is replacing the term “notified body” with “approved body”, thereby enabling the Secretary of State to approve bodies to carry out conformity assessments without notifying the European Commission. Other changes being made to the regulation are mostly minor and technical in nature; for example, replacing the phrase

“a language which can be easily understood”

with “English”.

The amendments being made to the implementing regulation are minor but equally important. As well as providing the Secretary of State with the regulation-making power to designate geographical zones, this instrument amends various references to EU institutions and appoints the Civil Aviation Authority, the CAA, as the competent authority for the purposes of the implementing regulation.

This instrument demonstrates that the Government are committed to ensuring a fully functioning regulatory framework for unmanned aircraft after the transition period. While we are focused on securing the best arrangements for our future relationship with the EU, including in the aviation sector, this instrument will ensure that legitimate, safe unmanned aircraft operations can continue while ensuring effective oversight if we get to the end of the transition period without a deal. I commend the regulations to the Committee.

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[Baroness Vere of Norbiton (Con)]

My Lords, I thank all noble Lords for their consideration of these draft amendments. I shall endeavour to get through as many questions as possible. I am grateful to all noble Lords who gave me advance warning of what they were going to raise. In some circumstances, I have been able to get an answer; in others, I am afraid the system failed me and I did not. I am also conscious that there are questions that I will not be able to answer. I shall study Hansard and write if necessary.

As a number of noble Lords have recognised, the opportunities for unmanned aircraft are enormous. The purpose of the Government’s framework for the operation, manufacture and approval of unmanned aircraft is to provide certainty such that commercial, military and all sorts of operations can take place.

The noble Lord, Lord Foulkes, said that unmanned aircraft are drones. I remind noble Lords that, of course, they are also model aircraft—we have been round that loop before—and it is only fair and right that model aircraft as well as drones are included in the regulations.

My noble friend Lord Naseby asked whether clubs were signed up with the DfT. It is the individual who registers, but the DfT works closely with all sorts of clubs in the unmanned aircraft space to ensure that our framework is working effectively.

The noble Lord, Lord German, asked whether registration arrangements were in place. One has had to register a drone for more than a year now. That system is completely in place and is run by the CAA. It includes a competency test for remote pilots. The operators of a drone must register it with the CAA. I am not aware of any interoperability outside the UK at this time.

I reassure the noble Lord, Lord Foulkes, that we speak to the devolved Administrations relatively frequently—I have my next call with them on Thursday. We talk about all sorts of things, as do my officials. The devolved Administrations are aware of this legislation and have not raised any concerns. On paragraph 6.2 of the Explanatory Memorandum, referring to DAs’ powers to correct deficiencies in matters that are not reserved, we do not anticipate there being any such matters; this is just a standard line in EU withdrawal Act SIs.

The noble Lord, Lord Foulkes, had a number of questions, nearly all of which I picked up, but I am afraid that some have slipped me by. I will address one of them, because it was also mentioned by my noble friend Lord Naseby. I think that a difference of opinion on age limits will be coming down the track. I will talk about age limits, registration, licensing and insurance, which I know is of interest to many noble Lords. This instrument amends the delegated and implementing regulations to remove the deficiencies; that is absolutely clear. The powers, of course, do not allow us to amend the policy of the regulations through this instrument. Therefore we are dealing simply with the impact of EU withdrawal.

On age limits, Article 9 of the implementing regulation brings in a minimum age of 16 for remote pilots, with the option for member states to reduce that by up to four years for the “open” category, which is the lowest risk, and by up to two years for the “specific” category. This instrument provides the Secretary of State with the power to make regulations relating to Article 9 of the implementing regulation on age limits. It is the Government’s intention to lower the remote pilot minimum age by the maximum number of years and then to remove it as soon as we are able to in 2021. However, I reassure noble Lords that the minimum age of an operator of an unmanned aircraft will remain as 18 years old—we have had this discussion previously with the Air Traffic Management and Unmanned Aircraft Bill. To remind noble Lords, there is a difference between the operator of an unmanned aircraft and a remote pilot.

The implementing regulation contains provisions relating to registration and competency. As the CAA’s drone and model aircraft registration and education service—which is a rather long-winded way of describing the system you sign yourself up to—was originally created with these EU regulations in mind, they came as no surprise to anybody, so there are only some very small differences between the system we already operate and the new system. I hope that goes some way to reassuring the noble Lord, Lord German.

The implementing regulation requires operators in the “open” category to register if their unmanned aircraft is 250 grams or more, or if it has data capture capability. Remote pilots must also pass a competency test. There are a number of other requirements, but it is not worth going into great detail on the requirements of, for example, the “specified” and “certified” categories. As we noted before, the risk associated with those flights increases with each category.

On insurance, the implementing regulation does not require an operator of an unmanned aircraft to hold insurance unless required by other relevant legislation. It is the responsibility for every operator to ensure that they have appropriate insurance cover.

My noble friend Lord Naseby and the noble Lord, Lord Foulkes, talked about Gatwick, which really was a watershed in our understanding of the world of unmanned aircraft and the catastrophic events that can happen. In this case, the catastrophic event was actually an economic event, when Gatwick was essentially shut down. Since then we have made huge strides in understanding how we can respond to illegal unmanned aircraft activity. We accelerated our testing activity and we launched the counter-unmanned aircraft strategy, including unmanned aircraft remote pilot competency testing and operator registration, before we even had to under the regulations. We extended aerodrome flight restriction zones and we developed legislative proposals, which noble Lords will recall. The counter-unmanned aircraft strategy is an incredibly important Home Office strategy. It safeguards the benefits of unmanned aircraft, which is our goal, but also ensures that people are safe and that anybody using unmanned aircraft maliciously or negligently can be appropriately dealt with.

There are a number of things within that strategy. We recognise that there is no one silver bullet. My noble friend Lord Naseby talked about counter-drone technology. We are, of course, in touch with many of the operators and developers of that technology; the reality is that it remains a work in progress and probably always will do. However, great strides have happened in the world of counter-drone technology, and the Government are really at the heart of that.

The noble Lord, Lord Rosser, talked about divergence and the impact of 1 January 2023. The product standards set out in the delegated regulation do not have a substantial practical effect until 1 January 2023, and non-compliant unmanned aircraft can continue to be put on the market until that date. However, this instrument provides the Secretary of State with these new powers to designate standards for unmanned aircraft after the end of the EU exit transition period. Until that power is exercised, unmanned aircraft and associated accessories that conform to the EU harmonised standards will continue to be considered compliant with EU requirements, and those requirements will be recognised by the UK. However, those EU requirements and harmonised developments are still under development, so it is not possible for me to comment on the content of future designated standards.

Very briefly, on the UKCA mark that the noble Lord, Lord Rosser, mentioned, the mark can be used from 1 January 2021 but, prior to that, it is not required to be used. From 1 January 2023 will be when the mark is required.

Very briefly also on Wales, it is playing a cracking role in developing the drone sector, including at West Wales Airport and Snowdonia aerodrome in Caernarfon. The Government are providing support to develop the drone sector through the drone pathfinder programme and the future flight challenge. The first successful projects in the future flight challenge were announced in November and include the gold dragon project at Snowdonia aerodrome, which will develop sensor technology for drones working with public services such as police and mountain rescue.

That was a brief run-through of as many questions as I possibly could. I shall follow up with a letter. I commend these regulations to the Committee.

Motion agreed.