Draft Aviation Noise (Amendment) (EU Exit) Regulations 2019 Draft Aviation Statistics (Amendment ETC.) (EU Exit) Regulations 2019 Draft Aviation Safety (Amendment Etc.) (EU Exit) Regulations 2019

Jesse Norman Excerpts

Monday 18th March 2019 General Committees

[The Minister of State, Department for Transport (Jesse Norman)]

I beg to move,

That the Committee has considered the draft Aviation Noise (Amendment) (EU Exit) Regulations 2019.

[The Chair]

With this it will be convenient to consider the draft Aviation Statistics (Amendment etc.) (EU Exit) Regulations 2019 and the draft Aviation Safety (Amendment etc.) (EU Exit) Regulations 2019.

[Jesse Norman]

It is a pleasure to serve under your chairmanship, Mr Gray. The draft instruments that we are considering will be made under the powers conferred by the European Union (Withdrawal) Act 2018 and will be needed if the UK leaves the European Union without a deal. The Government’s priority is still to leave the European Union with a deal, but of course we must make all reasonable plans to prepare for a no-deal scenario, and that includes ensuring that there is a functioning statute book for aviation.

The first draft instrument, on aviation noise, makes amendments to domestic legislation and a directly applicable EU regulation that relate to aviation noise certification and the circumstances in which operating restrictions are considered at airports. The relevant regulations are, first, the Aeroplane Noise Regulations 1999, which were made to implement in UK law EU obligations relating to noise certification requirements in respect of propeller-driven and civil subsonic jet aeroplanes. The noise regulations prohibit certain aircraft from taking off or landing in the UK without having an in-force noise certificate issued by the UK or a competent authority of the state of registry that is recognised by the UK.

Secondly, the Air Navigation (Environmental Standards For Non-EASA Aircraft) Order 2008, also known as the environmental standards order, sets out the environmental standards relating to the noise and emissions of specific UK-registered aircraft that are not subject to the basic EU aviation safety regulation—EU regulation 2018/1139—and regulation by the European Union Aviation Safety Agency. Those regulations apply largely to light and microlight aircraft.

Thirdly, EU regulation 598/2014, commonly known as regulation 598, establishes the rules and procedures with regard to the introduction of operating restrictions at certain EU airports, based on a balanced approach to noise management, which has been an agreed International Civil Aviation Organisation principle since 2001. Finally, the Airports (Noise-related Operating Restrictions) (England and Wales) Regulations 2018, otherwise known as the operating restrictions regulations, appointed competent authorities for England and Wales for the purposes of regulation 598. The withdrawal Act will retain EU regulation 598 in its entirety, on exit day, in UK law.

The draft instrument makes the necessary changes to the noise regulations, the environmental standards order and the operating restrictions regulations to ensure that the legislative framework continues to function correctly after exit day. The noise regulations are being amended so that in the UK the same noise certification requirements apply to aeroplanes registered in a European economic area state which apply to other foreign-registered aeroplanes. That will in effect end the automatic recognition of noise certificates granted in the EU and EEA. Rather than the UK automatically recognising noise certificates granted in the EU and EEA, noise certificates from the EU and EEA will be subject to the same rules that currently apply to noise certification of aircraft from non-EU and non-EEA countries. The requirements relating to certification of UK-registered aeroplanes are being amended so that they apply only to use in the UK rather than use in the EU and EEA. The regulations apply to propeller-driven and civil subsonic jet aeroplanes. That includes light aircraft and commercial passenger aircraft.

Criminal offences for breach of the noise regulations have existed in domestic legislation since 1999 and carry a penalty of up to £2,500. Those offences already apply to third-country operators and to operators of UK-registered aircraft operating in the EU, but not to certain smaller civil subsonic jet aeroplanes registered in an EU member state, EEA state, Gibraltar or Switzerland. The amendments to the noise regulations that I have described mean that from exit day the aircraft will be covered by the offences for breaching the noise regulations.

The changes to the environmental standards order amend the terminology used in the order so that it is aligned with changes made to aviation safety legislation on EU exit. For example, the instrument removes references to EASA. The amendments to regulation 598 provide for obligations conferred on member states under the regulation to be conferred instead directly on the Secretary of State and, where appropriate, on the Northern Ireland Department for Infrastructure or on Scottish Ministers. It includes an obligation on competent authorities to inform the Commission and other member states that operating restrictions are planned to be imposed.

The instrument instead provides for a UK-based relevant authority to be notified in place of the Commission. It also places an obligation on the relevant authority instead of the member state to ensure a right of appeal. The Commission’s power to adopt delegated measures providing for technical updates to the regulation to take account of changes in relevant international rules is conferred instead as a power for the Secretary of State to make regulations subject to the negative resolution procedure. The changes to the operating restrictions regulations reflects a very small amendment to the title to regulation 598 made by the instrument and removes the word “Union”.

When the instrument was debated in Grand Committee in the House of Lords last week, the issues of consultation and independence of competent authorities were raised. As the aviation Minister, Baroness Sugg, said during that debate, the instrument itself does not appoint the competent authorities. That was done last year for England and Wales following extensive consultation. An instrument was laid on 5 March appointing competent authorities for Scotland. It is a requirement under regulation 598 that the competent authorities are independent of any organisation that could be affected by noise-related action. There is a requirement for right of appeal. It is also a requirement under regulation 598 that stakeholders are consulted before any operating restrictions are imposed. That remains unchanged.

The draft aviation statistics instrument amends EU regulations 437/2003 and 1358/2003, and seeks to maintain the status quo with regard to the provision of data by operators of airports served by commercial flights. This is achieved by making technical changes to ensure that retained legislation continues to function, including amending redundant references to the UK being a member state. A further part of the instrument made under the European Communities Act 1972 creates a mechanism to enforce the obligation on airports to provide data, because there is currently no penalty if an airport does not comply.

The SI was initially laid as a proposed negative instrument, but we have accepted the recommendations of the Secondary Legislation Scrutiny Committee to re-lay the SI using the affirmative procedure instead, acknowledging its concerns about the potential impact of the changes on commercial airport operators. I thank the Committees for their work in considering the statutory instrument.

EU regulation 437/2003, referred to as the statistical returns regulation, requires operators of airports served by commercial flights to provide their member state with specified statistical data. In its existing form it specifies information that must be compiled by the member state: in this case, a function carried out by the Civil Aviation Authority. It also requires that the same information must be provided to the European Commission’s statistical office, Eurostat. It further sets in place standards that must be met during the compilation and submission processes.

EU regulation 1358/2003, referred to as the implementing regulation, requires that the process set out in the statistical returns regulation is applied to a set list of airports and updates the list of statistical information that said airports must supply. The list of airports comprises effectively all that see commercial air traffic. The list included 46 airports across the UK at the point of its last update by the EU.

The withdrawal Act will retain EU regulations 437/2003 and 1358/2003 in their entirety on exit day in UK law. The draft instrument that we are considering makes the changes necessary so that those EU regulations continue to function correctly after exit day. It is essential to ensure that the regulatory regime in place after exit continues to allow statistics on the total volumes of passengers and freight using UK airports to be compiled. The gathering of such data and publication of derived figures by the Civil Aviation Authority are activities that are important for Government, the public and the sector itself to be able to monitor performance. Further, the draft instrument amends the statistical returns regulation to remove the duty on the UK to continue to transmit the data to Eurostat. The power to collect statistical data and the obligation on respondents to provide that data are to be retained, with responsibility for the functions being given to the CAA.

The instrument amends the implementing regulation to remove the specific list of airports covered. The list is, in fact, superfluous, as the existing implementing regulation contains a mechanism that sets the burden of data collection at different levels, depending on the volume of traffic seen by an individual airport. The mechanism will remain in the retained EU regulations, so what is expected of airports will stay the same.

The data-collection power provided is an important tool for accessing data, due to the competitive and commercially sensitive nature of the sector. As such, it is important that the legislation continues to operate after the UK has left the EU, and the amendments to the retained EU legislation are essential if that is to be achieved.

During the preparation of the instrument, a review of the statistical returns regulation highlighted the requirement for an enforcement mechanism, to meet the UK’s responsibility as a member state. That is why the Secondary Legislation Scrutiny Committee recommended that the instrument be upgraded to the affirmative procedure. The instrument therefore provides a mechanism whereby the CAA can enforce the obligation on airports to provide the data specified in the statistical returns regulation. In determining the penalty, enforcement mechanisms in similar legislation were considered, so as not to go beyond prior precedent. Consequently, the Department decided to match the enforcement power in the Airport Charges Regulations 2011, with a civil penalty of up to £5,000. That part of the regulations is required regardless of final decisions on the UK’s future relationship with the EU.

Hon. Members may recall that the draft aviation safety instrument was debated in a Delegated Legislation Committee on 19 December 2018. Since then, a new EU regulation was published on 10 January and entered into force on 30 January. That regulation amends a small number of provisions relating to the medical assessment of pilots that were already being corrected by the draft instrument. As a consequence, a few aspects of regulation 318 in the original draft instrument would no longer accurately correct retained EU legislation, as the EU legislation they acted upon would have changed. In particular, the inaccurate aspects of regulation 318, on the medical assessment of pilots, would have been outside the powers of section 8 of the EU withdrawal Act, under which the draft instrument has been made—in other words, ultra vires.

To ensure that the entirety of the draft instrument made proper and correct use of the powers in the EU withdrawal Act, the Government made the decision to withdraw it, correct it and re-lay it at the earliest opportunity. The version of the instrument we are considering today also takes account, therefore, of the new EU regulation, the resulting changes to regulation 318 in this instrument and the minor addition required to regulation 327. The rest of the instrument remains unchanged.

The current instrument corrects five principal EU regulations relating to aviation safety, together with a number of Commission implementing regulations made under them. The five principal EU regulations include regulation 2018/1139, more commonly known as the EASA basic regulation, and regulation 3922/91 on technical harmonisation. Although the latter has been largely superseded by the former, provisions on flight and duty time limitations still apply to the crews of aeroplanes undertaking air taxi, emergency medical services and single-pilot commercial air transport operations. The third of the five regulations is regulation 2111/2005, which establishes the list of air operators banned from operating into the EU on safety grounds; the fourth is regulation 996/2010, which sets requirements for the investigation of air accidents and incidents; and the final one is regulation 376/2014, which establishes requirements for civil aviation occurrence reporting. The implementing regulations each deal with a specific aspect of aviation safety regulation, including the design, construction, maintenance and operation of aircraft; the licensing of flight crew, maintenance engineers and air traffic controllers; the provision of air traffic management and air navigation services; and the design and operation of aerodromes.

The draft instrument makes the changes necessary to ensure that those regulations, when retained in UK law on exit day continue to function correctly. The changes include, for instance, making it clear that the retained legislation applies only to the UK and not

“the territory to which the treaties apply”,

and replacing references to the competent authority with references to the Civil Aviation Authority.

The instrument also transfers certain functions currently undertaken by EASA to the CAA—for example, approving organisations that design aircraft, and certifying the design of aircraft and engine types. Under the EU regulations, the Commission has a number of functions, including the power to adopt regulations, to adopt or amend technical requirements and to make certain limited amendment to the principal EU regulations. These legislative functions will be transferred to the Secretary of State to be exercised through regulations subject to the negative resolution procedure. These powers are very limited, and are designed to ensure that the regulatory system can adapt to technical developments and changes to the international standards adopted by the International Civil Aviation Organisation.

All certificates, licences and approvals issued by EASA or EU EEA states prior to exit day will remain valid in the UK by virtue of the withdrawal Act if they were valid in the UK immediately before exit day. The draft instrument provides that such certificates should be treated as if they were issued by the CAA. With the exception of certificates relating to aircraft design, the instrument also limits the validity of such certificates to two years after exit day, after which time CAA certificates will be required. The CAA needs to issue the safety certificates to have full oversight over aviation safety in the UK, in accordance with the UK’s obligations under the Chicago convention.

As I said in my opening remarks, we are continuing to work to achieve a positive future relationship with the EU, but these instruments are an essential element of our contingency planning for a no-deal exit. They would ensure that, in the event of a no-deal exit from the EU, the UK’s framework for aviation noise, statistics and safety continues to work effectively, and that the aviation industry and consumers have clarity about the regulatory framework that will be in place. I commend the instruments to the Committee.

--- Later in debate ---

[Jesse Norman]

I thank the hon. Members for Kingston upon Hull East and for Inverness, Nairn, Badenoch and Strathspey for their questions, which I will address in turn. The first question raised by the hon. Member for Kingston upon Hull East was about the number of further SIs to be debated. I am delighted to tell him that I do not expect us to have to debate any further SIs on aviation. Therefore, on the question of grouping—[Interruption.] I am sure colleagues will feel extreme joy. Certainly, there is a little frisson in the ministerial team. That is good news.

The hon. Gentleman raised the question of the cost impact on the CAA. I think he will agree that the number he raised—£192,000—is remarkably small. I reassure him that the CAA is well advanced in managing the overall burden of its scale-up for Brexit. There are something like three more people to be retained or hired, and this sum relates to those people. There are currently 47 full-time equivalent staff in place out of 50, with three expected, so I think the CAA is well on top of the issue.

The hon. Gentleman asked whether we will have to remain part of EASA. He will understand that we wish to continue UK participation in EASA for all kinds of reasons. It is a highly respected organisation. The CAA has always had a very close relationship with it. As we discussed, the CAA was one of the progenitors of EASA. It is in the interest of both the UK and the EU not to disrupt existing safety arrangements. The CAA has not unfortunately been able to hold formal discussions with EASA about EU exit issues, but it is clear, as are we, that it will need to liaise with EASA very closely in the event that this country leaves the EU without a deal. Many of those relationships are already in place.

I am grateful to the hon. Member for Inverness, Nairn, Badenoch and Strathspey. I lack his skill for aviation metaphors, such as evacuation, bail out or whatever. He was right to focus on rights. I hope he is reassured that this, as a formal lift-and-shift and modest correction exercise, does nothing to impugn the rights of people as they currently exist under this legislation. Indeed, it seeks to ensure that they are protected by ensuring that the UK statue book continues to work in a functional way for aviation. I hope the Committee supports the statutory instruments.

Question put and agreed to.

Draft Aviation Statistics (Amendment etc.) (EU Exit) Regulations 2019

Resolved,

That the Committee has considered the draft Aviation Statistics (Amendment etc.) (EU Exit) Regulations 2019.—(Jesse Norman.)

Draft Aviation Safety (Amendment etc.) (EU Exit) Regulations 2019

Resolved,

That the Committee has considered the draft Aviation Safety (Amendment etc.) (EU Exit) Regulations 2019.—(Jesse Norman.)