Civil Aviation (Consumer Protection and Regulatory Reform) Bill [HL]

Lord Moylan Excerpts

2nd reading
Tuesday 2nd June 2026 Lords Chamber

[Lord Moylan (Con)]

My Lords, it has been an excellent debate. Most of my points have been made; in the course of the afternoon, I have been tearing up and disposing of parts of the speech that was prepared for me, so I hope noble Lords will forgive me if what is left is a little disjointed.

I thank the officials who provided me with a briefing and the Minister for arranging that, and I thank noble Lords for their speeches. I learned a great deal, particularly about the experience of those with disabilities. From my own background, I have had to engage with those having experiences with disabilities on trains and on the railways in particular; to hear the stories today about those who have had problems in the air, and the sorts of problems they have had and the responses they have encountered, has been a very important experience for me. I can certainly say that we will consider sympathetically amendments brought forward to try to offer some sort of redress. I hope that some of those amendments could be brought forward by the Government, because I know that the Minister himself is not unsympathetic to that case. I would have thought that it would be helpful all round if the Government could take a lead. If they do not, I am sure that others in your Lordships’ House will do so.

Like other noble Lords, I want what this Bill does. For example, I want the “powers gap”, as it is known, to be filled. The retained EU law Act expires on 23 June and there is a whole range of areas for which we can no longer make regulations without primary legislation. This Bill addresses that in respect of civil aviation. In fact, I have been berating the Minister in various fora over the last couple of months, saying, “What are you doing about this powers gap arising on 23 June?” I will also take time out now to berate him about it because, while this is being dealt with in relation to aviation, his department still has no answer on the regulation of the marine sector, for example, and in other areas where we will be left completely bereft as a result of a perfectly foreseeable development—namely, the expiration on a known date, which happens to be this month, of an Act passed several years ago.

To go beyond that, not just the Department for Transport but other departments will be affected by the powers gap—but the Government have done nothing except in regard to aviation. We want to see that done: we want to see airspace modernised. My way of putting it is that we want to give a legal basis for passenger protection rights to substitute for their basis in EU law, which will no longer exist. That is what the Bill does: it creates a legal basis for those passenger rights. We want to see that done, but I do not think we really want to see it done this way. We do not want to see it done by the creation of a huge, baggy, all-powerful new regulatory body. We have had 25 years of creating regulators as the answer to everything, and it does not work. We have had 25 years of taking powers away from Ministers and Parliament and giving them to wholly unaccountable regulators, and here we are doing it again. The Civil Aviation Authority is, in essence, a safety regulator, an economic regulator and a regulator of airspace. It is a very focused body and it is very good, but we are now giving it a far broader range of powers.

I am going to read the bits that matter from the memorandum on the European Convention on Human Rights. We find that Clause 1 engages Articles 6 and 8, and Article 1 of the first protocol. Clauses 2 and 3 engage Articles 6 and 10. Clauses 4 to 6 engage Article 6 and Article 1 of the first protocol. Clause 7 engages Article 1 of the first protocol. Clause 8 engages Articles 6 and 7. Clause 9 engages Article 6.

Whole swathes of the Bill are open to challenge. Of course, civil servants believe that they can rebut those challenges in court, but it is no wonder that my noble friend Lord Redwood talked about the possibility of delay because, in effect, large parts of the Bill will be determined not in this Parliament but in a foreign court, as we discover whether these clauses will stand should they be challenged. As an illustration of how wide the powers that are being transferred are, I almost feel that parts of the Bill were written by the Civil Aviation Authority. I will come to some of them, but there is also the question of delegated powers.

Tomorrow or soon after tomorrow, thanks to the information offered by the noble Baroness, Lady Ramsey of Wall Heath, we will get the report of the Delegated Powers Committee. Huge swathes of power are being delegated to the Civil Aviation Authority and there are extensive Henry VIII clauses in the Bill. All this needs to be explored and the role of Parliament in it needs to be properly understood. At the moment, we are being emasculated in this. With the great swathes of powers being granted to the CAA, I see no provision in the Bill for parliamentary accountability or, indeed, for any accountability of the CAA to anybody, including to the Minister. How can that be an acceptable way of making law and regulation for the future?

I am going to disappoint the noble Lord, Lord Tunnicliffe, but, before I do, I want to say that his speech was one of the most interesting in the debate, because he brought alive for me, in a remarkable way, the experience of being a pilot—even if not a captain—and the things that can happen. I know that other noble Lords with that experience spoke, and I greatly enjoyed his speech and learned from it, but I am going to disappoint him. Of course, I agree with him that, in drafting and preparing regulations, you should consult people who know about things. You should consult pilots, airlines and so forth, and bring them together, but that can be done alongside proper parliamentary scrutiny. While the statutory instrument is an unsatisfactory method for doing so, it is the only one we have. To give up on it completely would be an abandonment of our duty.

I will run through some of the clauses. As I say, many of my points have been made, so I will try not to repeat them, but some things need to be raised. Clause 1(3) gives the Secretary of State the power to confer enforcement powers on the CAA, so why do we need Clause 2? Clause 2 is one of the bits that I think was written by the CAA. It puts into the Bill all the powers that the Secretary of State already has the power to confer, and these powers are extensive. What is going on there?

Then subsection (3)(e) of the new section inserted by paragraph 6 of Schedule 1 creates provisions for the Secretary of State to manage what is going on if two bodies are doing the same enforcement. I do not know which two bodies are meant; I suspect they are the Civil Aviation Authority and the Competition and Markets Authority, but they might be others. One of the principles of enforcement, which those of us with local government experience come across all the time, is that, for one crime, there should be one enforcement agency and one prosecutor. Only in that way do you get clarity and avoid somebody being punished twice for the same thing. We are actually building dual enforcement into the Bill and then giving the Secretary of State some power to manage it from the centre. The Bill should not be doing that; it should be clarifying whether the enforcement is by one or the other—not by both and certainly not by more than two.

Clause 4 is on airspace modernisation. Subsection (2) amends Section 2 of the Air Traffic Management and Unmanned Aircraft Act 2021 to extend the existing ministerial direction powers, so that the Secretary of State can compel implementation of approved airport changes. This is what we are calling the level of last resort. As a last resort, the Minister can step in and force things to happen. But there is nothing here—I echo the remarks made by the noble Baroness, Lady Grender, and my noble friend Lady Bray—about the consultation of the communities that will be affected by airspace modernisation. There will inevitably be winners and losers from that, but where are the communities in this? There is no answer to that, but the Secretary of State can exercise that lever without any regard to community consideration. Is that not too large a power for the Secretary of State to have?

Clause 8 on CAA rule-making is another example of a part of the Bill that I think must have been written by the Civil Aviation Authority. It is astonishingly extensive. First, I want to know what a “rule” is. We have rules in football. There is the offside rule. I know what a “law” is, but I do not know what a “rule” is. What is the force of a rule? Does it have the force of law? The CAA is going to make rules. It has no accountability in how it is going to make rules. There is no requirement in the Bill, particularly about consultation.

Then we have—this must be one of the most bizarre things that anyone has ever written into a Bill, which is one of the reasons I think the CAA wrote it—more in Clause 8 relating to CAA rules. In new Section 61F, we have the power for the Secretary of State to issue a document—note the careful avoidance of the word “guidance”—that

“sets out the Secretary of State’s priorities and objectives for the exercise of the CAA’s rule-making functions”.

I have no problem with that. That makes a great deal of sense. We then then go down to new subsection (6), which says:

“The Secretary of State … must consult the CAA in preparing or revising the document and”—


just listen to this—

“may not issue the document without the agreement of the CAA to the contents of the document”.

So we have an arrangement where the Secretary of State is allowed in effect to give guidance—of course, if you use the word “guidance” that has a legal meaning, but it is effectively guidance, I hope—to the CAA that the CAA can veto. Does anyone read these things before they print them? How can that possibly be justified?

Then we come to Clause 9 on offences. This is no criticism of noble Lords, but nobody in the course of this debate has mentioned the fact that the CAA is being given the power to create criminal offences—something that Parliament normally reserves to itself. The CAA can create criminal offences and you can get a fine. You can be taken to the magistrates’ court and you can get a fine. Again, what is the parliamentary scrutiny for that? What is the justification for leaving that in just that fashion?

We then have the Henry VIII powers. These are completely unnecessary, because the Government’s delegated powers memorandum, which they have written for the benefit of the Delegated Powers Committee, identifies every Act that this Bill interacts with and states that those amendments are already made in the Bill—so why should they need Henry VIII powers to amend further legislation? What is the further legislation, if they have already identified all the legislation with which the Bill interacts? Unnecessary Henry VIII powers have been loaded in that are simply not needed.

We support aviation. I agree with everything that has been said about its economic importance and its contribution to growth. I cannot none the less allow the Government to sit there and say that that is solely their objective when they themselves have done so much damage to aviation in the country. The SAF mandate, for example, is adding significantly to the costs of fuel, and that is feeding through to what passengers are having to pay. Then we have the astonishing, bone-crunching increases in business rates being imposed on airports. This Bill could be a chance for the Government to do something for the benefit of aviation and make good on their commitment to use aviation as a means for growth. It could be that, but it needs drastic change if is to do so credibly.