Operation of Air Services (Amendment etc.) (EU Exit) Regulations 2018

Lord Foulkes of Cumnock Excerpts

Tuesday 18th December 2018 Lords Chamber

Moved by

[Lord Foulkes of Cumnock]

At end insert “but regrets that the effect of a no deal exit from the European Union risks grounding all civil aircraft after 29 March 2019; and calls on Her Majesty’s Government to seek United Kingdom membership of the European Common Aviation Area in its own right to prevent such an outcome.”

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, the awful spectre of a no-deal Brexit grows relentlessly day by day. Like lemmings, the Government are heading blindly towards a cliff edge. There is paralysis in the House of Commons. The Prime Minister seems to be manoeuvring to get what she wants, irrespective of what is best for the country. I am pleased that we have this debate on the Floor of the House. That is why I negatived it in Grand Committee, when the Government were trying to slip it in quietly behind the scenes in the Room next door.

However, most of the talk about a no-deal Brexit is fairly abstract to most people. The implications have not been sufficiently discussed or understood. They are potentially quite disastrous and this is only one of them—we are not talking about the lorry parks, the medicines or all the other problems. This relates just to aviation. Whenever anyone tries to raise practical issues in this realistic way, they are shouted down with the usual cry from the Brexiteers of Project Fear. We saw that in Scotland in 2014. In fact, there is a great deal to be feared from no deal—and this, as I say, is just one example.

The basic question is whether planes will keep flying between the United Kingdom and European Union destinations, and elsewhere, after 29 March 2019—and, if so, on what terms and at what cost. We have already discussed this on two previous occasions. It is no reflection on the Minister personally that satisfactory answers have not yet been provided, because she cannot provide what does not exist. I will try again to see whether she can do her best—I know she will.

As I have pointed out previously, there is a straightforward way of resolving Brexit-related aviation issues, at least in the short to medium term, if we go ahead with no deal. Access to the EU’s internal market for air transport could be retained by the United Kingdom simply joining the European Common Aviation Area, which is not restricted to European Union member states. However—and it is a big “however”—membership would require the United Kingdom to accept EU aviation laws, which ultimately would come under the jurisdiction of the European Court of Justice. So what was seen by the Prime Minister as a red line has in fact become a straitjacket in which the Government have put themselves so that they are unable to take this sensible action.

Surely this is an example of where realism should triumph over dogma. Is there anyone in this House—or indeed the whole country—who would deny the common sense of accepting that one condition in return for the guarantee that, after 29 March, whatever else happens it would be business as usual for aviation—a very simple way forward?

Whatever you think of Michael O’Leary in other contexts, he certainly knows his industry and needs to be listened to, and his company provides cheap flights for millions of people in this country and others. He says that if there a no-deal Brexit, flights will be grounded. So can the Minister give an absolute guarantee now that this will not happen? I say this now and I will say it again: whatever she says will be recorded in Hansard and when it comes to 30 March, we will be able to see—if we go ahead with no deal, which I hope we do not.

[Lord Adonis (Lab)]

Is my noble friend aware of anyone in the aviation industry who thinks that Brexit is anything other than an extremely negative and potentially disastrous step forward for this country?

[Lord Foulkes of Cumnock]

I do not. It is not just Michael O’Leary who has said that. I am trying to be briefer than usual, but if I was going to go on for longer I could mention many other examples. But if Michael O’Leary is wrong, we need to be told unambiguously that this is not one of the real threats from a no-deal Brexit.

Among the 700 statutory instruments required for the crazy prospect of a no-deal Brexit, the Secondary Legislation Scrutiny Committee drew special attention to these regulations because they,

“give rise to issues of public policy likely to be of interest to the House”.

That is why I negatived them in Grand Committee, so that we could have a debate in the House. That statement is certainly true, and the more we know about the potential implications, the greater the interest will be in this—and, I think, the greater the anger is likely to become. For example, how many people realise that it is not only flights within the European Union that are threatened by a no-deal Brexit? The whole basis of our aviation relations with the rest of the world is via the European Union. In all, the EU governs direct UK aviation access to 44 other countries, including the US and Canada. My second request for a guarantee is: what guarantees can the Minister give today on a smooth transition, which means no groundings or delays, for these routes beyond? Remember—we are going to keep careful note of this.

Also, what steps have been taken to guarantee that our safety and maintenance regimes, which again are framed within the EU regime, will be acceptable to every country in Europe and the wider world after 29 March? According to the European Aviation Safety Agency, certificates previously issued by the CAA before exit day would no longer be automatically accepted in the EASA system after 29 March. Has there been any progress on a definitive answer to the massive implication of that statement? How is it to be resolved?

When we last discussed these matters, the Minister was unable to say how many extra staff the CAA has taken on, or will take on, for its hugely increased workload. This is one of the many costs of preparing for Brexit; it is already taking on more staff. Can she give us an indication today of how many staff will be needed to deal with route licensing in that hugely increased workload, as well as its other responsibilities? These are huge questions. We are only three months away from our potential exit from the European Union, unless some hand of fate intervenes. We do not want vague assurances that discussions are continuing. They will guarantee nothing, and both business and private travellers now need specific, hard and clear assurances from the Government who have led us into this cul-de-sac.

I am not going to press this to a vote today. I would have liked to have done so, but some of my colleagues have said, “Let’s give the Government an opportunity to answer these points”. It is not because I am in any way satisfied, but I will give the Government the opportunity to make their explanation and give us the guarantees today. I am sure that the Minister will recognise that this in no ways absolves the Government from finding a solution that avoids a no-deal Brexit, thereby eliminating the extremely serious threats to civil aviation that we are discussing. Let us hope that sense prevails and we are not faced with a no-deal disaster—otherwise I believe that the kind of things I have predicted today will cause tremendous problems after 29 March. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted that this little debate has been called. I declare my interests at the outset, as a former transport spokesman in the European Parliament and a one-time rapporteur on a civil aviation report. Subsequently, I was a spokesman in the House of Commons for the Conservatives when in opposition.

I would like to put a number of small questions to my noble friend the Minister today. The House has been particularly well served by the Secondary Legislation Scrutiny Committee’s report on these regulations, which raised a number of policy issues that need to be addressed. I must say that I find the amendment to the Motion that the noble Lord, Lord Foulkes, has put before the House quite attractive.

My question relates to the implications for air service agreements with the EU and the EEA. There is also a broader question which does not seem to have been addressed in these regulations which I know is causing great concern. I omitted to say that at the time I married my husband he was an airline executive and is now in receipt of a pension from Delta Air Lines. I have not consulted him on my notes today, but perhaps it would have been better to have done so.

American carriers are concerned about cabotage and their right to fly internally within the EU. We are currently part of the common travel area. Will my noble friend address what happens when the United Kingdom leaves the European Union on 29 March regarding the fourth and fifth freedoms and US and other international carriers? That does not seem to be addressed in this regulation, but I know it will be exercising many of the airlines at this time.

Page 4 of the Secondary Legislation Scrutiny Committee’s report raises a number of issues and I think the House will take a great interest in the Minister’s reply. Paragraph 16 states:

“In the event of no agreement, EEA airlines will now also need to apply for a foreign carrier permit to operate in the UK”.


As suggested, I would like to press the Minister about the basis on which these expectations are founded and what co-operation and negotiations she is having with EU carriers to ensure that the necessary permits will be in place before 29 March so that there is no gap in aviation post Brexit. How long does the Minister think it will take to apply for these permits? What cost will there be to the airlines in this regard? Will she take this opportunity to correct what I hope are incorrect newspaper reports over the weekend that passengers are being told not to fly after 29 March next year because it is all too difficult to know what rights will be in place and what permits will be required for passengers to apply for visas or permits to travel?

I would also be grateful for a response from the Minister on this question. When she referred to the current wet leasing arrangements, she said that this will be in relation to reciprocity. How will this carry on after 29 March, particularly as it is understood that carriers may not benefit from the current arrangements once we have left the European Union?

The amendment to the Motion tabled by the noble Lord, Lord Foulkes, asks for UK membership of the European common aviation area. Does my noble friend have a date for the application that we intend to make to that area?

I shall conclude with a general point. I understand that these regulations might have been put forward as a draft negative, in which case I am not sure that we would have had the chance to consider them. If that is the case, the House was given a very clear understanding during the passage of the EU withdrawal Bill that no policy should be decided by secondary legislation and that all policy should be decided by primary legislation. My fear is that the statutory instrument before the House today is getting perilously close to determining policy. I hope that the Government will put down a marker that when it comes to other Bills, such as the Agriculture Bill and the environment Bill, no policy will be applied through regulation but will be in the Bill. When we were in opposition that was always our very clear understanding.

--- Later in debate ---

[Lord Adonis]

My Lords, I extend my commiserations to the Minister for having to defend an impossible policy today. Nobody engaged in this business thinks that what we are discussing today is anything other than ridiculous: dismantling our entire existing system of civil aviation regulation, mutual recognition and European supervision and the rights of carriers to operate in different countries, all for the pursuit of an ideologically crazed venture which never at any point focused on issues of aviation and travel within the European Union.

None the less, having extended my commiserations, I point out that the Minister does have great responsibilities to the House and to Parliament. As the noble Baroness, Lady Randerson, so rightly said, people are making real travel decisions based on their fear of what may or may not happen from the end of March next year. It is almost unbelievable that people should be cancelling their travel plans and not arranging holidays for next Easter and summer, due to their fears of what will happen because of inadequate government preparations for our relations with our European partners. In the House of Commons yesterday, the Prime Minister herself ramped up the real possibility of a no-deal Brexit in a big way and posited it as the main alternative to the passage of her deal. It is hard to exaggerate how irresponsible that was on her part, because almost nobody in Parliament believes that this deal is going to go through in a month’s time. The Prime Minister is saying to Parliament, and to the country, that the most likely scenario now facing the country is that there will be no deal at the end of next March.

All of the concerns raised in the reports we have been debating today, leading to profound discontinuities and companies and individuals in this country experiencing massive economic and social damage, will come to pass. At the moment, we are just talking about one small fraction of aviation, but we face an extremely serious situation. As the noble Baroness said, this is just one set of regulations. There is a string of regulations relating to the complex and difficult area of aviation safety which I hope will come to the Floor of the House because they involve extremely important issues. There are dozens of other transport regulations.

I am told—because I know one or two things about what goes on in the noble Baroness’s department—that a significant proportion of the staff in the Department for Transport are now working solely on Brexit-related issues. This is part of the reason for the massive cost overrun on Crossrail, which is not being delivered on time. We have inadequate supervision of HS2—we could continue down the list. There is only a certain amount of expertise, energy and capacity in Whitehall and at the moment, it is all being sucked in by Brexit, including the extremely valuable time of the noble Baroness and other Ministers in her department, which is having to be spent dealing with proposals for what happens if we crash out of the EU in three months’ time, rather than staying in. I suspect that the noble Baroness agrees with almost everything I have said, although she cannot say it quite like that. All this is worth saying because we are going to have this time after time, day after day, between now and the end of next March if we carry on with this present process.

My noble friend Lord Foulkes has done a great service to the House by bringing up this matter and moving his amendment. I was surprised when he said he was not going to push it to a vote. Indeed, I was little short of astonished, as my noble friend never knowingly undersells when it comes to fulfilling the duties of opposition. I cannot believe that, at this late hour, he is going to wimp out of pushing this to a vote. I hope he has not come under pressure from these people called Whips, who apparently exercise some influence in this House. I cannot think of any good reason for not pushing it, since the matters raised in his amendment are of profound public policy concern. I cannot think of an issue that this House has more of a duty to raise than this: it goes to the heart of the continuity of our transport arrangements. It may be that the noble Baroness gives such an impressive and detailed reply that my noble friend will not feel he needs to press this further. However, to give him some slight encouragement, if the reply is not of the calibre he would expect, giving give him absolute assurance of continuity in our transport arrangements at the end of next March, he might think of pressing the amendment. He might find that one or two other noble Lords will be with him in the Lobby. I might even be prepared to be a Teller with him.

It is not just about a vote at the end of this debate. We have got to send a message to the Government that we are on their case, regulation after regulation, when issues of this variety come before the House between now and the end of next March.

[Lord Foulkes of Cumnock]

As my noble friend said, there are going to be dozens, scores—maybe hundreds—more of these SIs. We need to keep a very close watch on them in Grand Committee and make sure that the important ones are negatived and come here. We may have many other opportunities for considering them, moving amendments and even voting. Even if he does not have the excitement today, I think there are going to be many other opportunities.

[Lord Adonis]

I entirely agree with my noble friend and with the noble Baroness, Lady McIntosh, who rightly said that issues of first-order public policy were being raised in regulations. At the moment, whether they come before the House is almost entirely random. I also say in passing that there is a growing sense of frustration about this. The House is about to go into Recess in what is—let us be frank—a national crisis. It is going into Recess on Thursday and not coming back until the second week in January. By then, we will have literally a matter of days before we leave the European Union. We should be doing our duty and assembling here in Westminster and debating these issues regulation by regulation from the beginning of the new year. I might have something further to say about that when the Motion for the Adjournment comes forward on Thursday.

Turning to the specific issues at stake here, the situation is very serious. The report of Sub-Committee A of the Secondary Legislation Scrutiny Committee, which examined the regulations and—I echo the Baroness—did an excellent job on these and others, says of air carriers that,

“in the event of ‘no deal’ the UK expects to grant permission to EU carriers to operate at UK airports”.

The noble Baroness, Lady Randerson, said that part of the reason why we have such a big aviation sector is cheap airlines. They are part of the reason, but it is also that in Heathrow, we have Europe’s preeminent hub airport. It is one of the biggest earners for this country in terms of international income and the promotion of inward investment, because it is so successful. Anything that promotes discontinuity in operations at Heathrow will be lethal to its success, to our ability to attract inward investment and to be an aviation world leader in future. If our European partners and other European airlines think that we are not going to put in place all the regulations necessary to ensure that Heathrow operates completely smoothly and with no discontinuity whatever, they will very rapidly—the noble Baroness is nodding because she understands this completely—move their operations to Frankfurt, Charles de Gaulle, Dubai or other international hub airports that are at least as accessible as Heathrow in terms of facilities. The stakes are extremely high: one of our major national industries could be at stake if we get this wrong.

The Select Committee said that,

“in the event of ‘no deal’ the UK expects to grant permission to EU carriers to operate at UK airports. We expect this to be reciprocated by EU states granting permission to UK air carriers to operate to points in the EU. If a multilateral agreement with the EU can’t be reached, we would seek bilateral agreements with individual states”.

Buried in those words are matters of huge complexity and difficulty. Not only would we need a bilateral arrangement for each of the 27 other member states of the EU in the event of no deal; as my noble friend Lord Foulkes said, there are also the other 144 arrangements that we have in place which govern our international aviation. When the Minister replied to the heated debates in Grand Committee on these issues and was invited to give an update on the state of the negotiations with our 27 EU partners on the reciprocal arrangements and the other countries that are covered by them, she was unable to give a great deal of information. She said that,

“we are having conversations with the Commission and the member states about a wide range of issues. I am not able to give further detailed information at this moment”.—[Official Report, 21/11/18; col. GC 21.]

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[Baroness Sugg]

I am sorry if I was not clear. No, the current UK-US deal deals only with direct flights between the UK and the US. Obviously, a flight that stops off at Shannon will be part of our discussions with the EU.

I hope I have been able to provide reassurance on this. I think that the EU Commission has been very clear in setting out its position and we have been very clear in setting out our position. They are broadly the same position: they both rely on reciprocity. We are delivering our position through this series of statutory instruments and, as I said, the EU is working on a timeline of when it will deliver its position. While we are working hard to get parliamentary agreement to the deal with the EU, we of course have to continue to make responsible preparations to ensure that, in the absence of that agreement, we will be able to avoid disruption. This SI and the others we have debated and will debate over the coming months are a key part of those preparations. Both we and the EU have published contingency plans, of which these regulations are just one small element. Taken together, those plans will ensure that planes can continue to fly to and from the EU in the event of a no-deal exit. They will ensure that our legal and regulatory framework for aviation is ready so that flights can continue whatever the outcome of the negotiations.

[Lord Foulkes of Cumnock]

My Lords, the Minister has been more helpful than she was in Grand Committee, and my noble friend on the Front Bench made a splendid speech referring to this guidance of 24 September. It says right at the end:

“This notice is meant for guidance only”.


If I were booking a flight to the Canaries in April I would take account of the next sentence:

“You should consider whether you need separate professional advice before making specific preparations”.


I am sure that that will be helpful for my noble friend. However, we have noted what the Minister said. All this work is being done, all these great people in the Department for Transport are working very hard indeed and it really is quite outrageous, as my noble friend Lord Adonis said, that they are being deployed on this work which we hope will be totally unnecessary when they could be doing something really useful. However, in light of the Minister’s helpful reply, I do not intend to press my amendment to a Division.

Amendment to the Motion withdrawn.