Month: March 2019

Brexit & Aviation 76

History gives us a context within which to set current events.  Rooting through some boxes, I came across a copy a UK CAA Safety Regulation Group in-house publication called “Aviation Standard” dated March 1991.  I kept it because it had a picture of me as a newly joined young airworthiness surveyor.  At the time the aviation industry was suffering the effects of recession and the Gulf War.  Pressure was on to keep fees and charges low but not to let up on essential safety activities.

What’s interesting is that 28 years ago the news was that the Joint Aviation Authorities (JAA) Headquarters was to move from London Gatwick to Hoofddorp, near Amsterdam Schiphol.  The 18 JAA Countries had decided to move from sharing office space with the UK CAA at London Gatwick to a new building in the Netherlands.

The staff newspaper had a large page describing the work of the CAA’s Systems and Equipment Department.  At that time, the department that I joined had 22 specialist design surveyors and supporting admin staff.  There were 5 technical specialist sections, addressing hydromechanical, cabin safety and environmental systems, power plant installation and fuel systems, and electrical and avionics.   This department covered all types of aircraft large and small, helicopters, airships and even hovercraft.

Contrary to the belief of some people, The UK has played a major part in shaping how aviation safety regulation developed in Europe.  What we have is as the result of concerted efforts over more than a generation.  It saddens me greatly to think that we are in the process of trying to dismantle that achievement.  An achievement that is recognised worldwide.

Back to the current challenge of Brexit and how it’s being exacerbated by political indecision and pure folly.  New Aviation Safety legislation has passed into European law ready to come into force if there’s a No-Deal Brexit.   The effects of this law are to create a breathing space so that companies can re-establish the approvals they need to operate.

Also, a new UK Aviation Safety Statutory Instrument (SI) was passed by both the House of Commons and the House of Lords and published as UK law.

The UK industry group; ADS has published a useful summary that is available on their website[1].  No doubt this will be updated as we discover if the planned leaving date of either 12 April 2019 or 22 May 2019 is to happen, or Brexit gets cancelled or delayed again.  Whatever UK Parliamentarian do it doesn’t seem the No-Deal Brexit outcome has yet been killed off for sure.

[1] https://www.adsgroup.org.uk/blog/no-deal-brexit-and-the-state-of-preparatory-aviation-safety-legislation/

 

Brexit & Aviation 75

Travelling between the UK and Europe at some indeterminant future date?  Planning your holiday for 2019?  You may need to take a lot of extra steps before you travel.  Both the EU and UK are taking measures to mitigate any severe disruption to air travel post-Brexit.

For EU registered airlines, EU law will continue to apply to flights to and from the EU.  For passengers on a flight departing from the UK, similar passenger rights should continue to apply after the UK leaves the EU.  The UK Government has said flights will not be cancelled due to Brexit.  However, if there is flight disruption due to Brexit, you probably will NOT get compensation.  Air travellers only get compensation if a delay is deemed to be within the airline’s control.  Clearly Brexit and its repercussions are beyond their control.

In order to off-set the concerns of many travellers, companies are issuing advice[1] and guarantees[2].  Also, their Terms and Conditions may be updated to say that the cancellation of flights due to Brexit will NOT be deemed to be within their control.  Some airlines may class a Brexit cancellation in the same category as a natural disaster like a volcanic eruption or earthquake.

A lot of effort is being put into assuring business continues, whatever the outcome of Brexit.  But offers of Brexit guarantees are not for free, someone is baring the costs.

One of the least favoured options is that there be No-Deal between the EU and UK post Brexit.  Now, the uncertainty continues as it’s clear the UK will NOT be leaving the EU this coming Friday.  A Salutatory Instrument has been passed by the House of Commons (HoC) that has changed the planned leaving date to either 12 April 2019 or 22 May 2019.

Last night, the British Parliament took control of the HoC agenda and conducted a series of “indicative votes”.   There was no majority for any of the Brexit options on the table.  However, amongst UK Members of Parliament, the “Peoples Vote” option, a further referendum, secured the biggest vote in favour (268 votes).

Another EU summit is being planned in Brussels for the week commencing 8 April 2019.  Another extension will be on the table if progress hasn’t been made in the UK.  Each extension taken up by the UK shortens the planned transition period by a corresponding amount of time.  The current Article 50 period can last as long as the Treaties on which it is based.  A positive option is desperately needed to plot a way forward.  The option to revoke Article 50 is always there.

[1] https://www.easyjet.com/en/help/boarding-and-flying/brexit

[2] https://support.thomascook.com/Travel-Advice-Safety/Leaving-the-EU-Brexit-Questions/1134032422/How-will-Brexit-affect-my-holiday.htm

Brexit & Aviation 74

It’s a good question to ask.  Will cooperation, coordination and convergence end with Brexit?[1]

An instant answer might spring to mind dependent upon your position with respect to Brexit.  Rather let’s look at the subject in more depth.  In my experience aviation safety regulation operates on 3-levels.  Each level is essential even though, from time to time, one may think itself superior to another.   Between the 3-levels there are dependencies.

  • One is political. No surprise.  Lawmakers are responsible for the high-level policy and the framework of law necessary to make regulation possible.
  • Another level is administrative. As is often said: the devil is in the detail.  Well crafted laws need to be drafted by creative people who know enough about both legislative and technical matters.
  • Of my 3-levels, the last one I mention, but it could have been the first, is the technical Without technically competent expertise the whole enterprise can be built on sand.

So, when asking what could happen to cooperation, coordination and convergence, I must address all 3.  There’s some freedom of movement but all the above need to comply with the standards set down internationally by ICAO.

In the event of a No Deal Brexit outcome the prospect of major disruption is real and should not be underestimated.  To my 3-levels there will be a shock to the system.  At the political level mutual trust will have to be re-established.  At the administrative level new processes or procedures maybe put in place.  At the technical level it’s less clear what new working arrangements may be needed.

Whatever happens with Brexit the laws of aerodynamics will not change.  The factors that cause accidents will not change either.   And airworthiness directives will continue to be issued.

Making a regulatory system work efficiently and effectively doesn’t happen overnight.  Prolonged efforts must be applied and sustained.  One or two big events can upset priorities very quickly.

Back to Brexit. Whatever those who sold the separation may have said, Brexit is sowing the seeds of disharmony.  Once the decoupling of plans has started so the drivers for action change too.

No surprise but this is significant in respect of the UK.  Historically, in the drafting of law and associated instruments (advice, guidance, notices and so on) there’s a tendency to reserve some arbitrary powers for those implementing the text[1].  EU law tends to be structured in a hierarchical manner with high-level objectives at the top and considerable detail at the lower levels.

In the last 25 years of European aviation regulatory harmonisation these two approaches have been blended.  When it works, people get the best of both worlds.  Unfortunately, Brexit is a divergence that has lack of certainly at its heart.  Several free marketers see a more arbitrary approach as a way of getting around the public interest whenever it suits them to do so.  Thus, cooperation, coordination and convergence between the EU and UK may not end with a big bang but a slow drift.

[1] In the early 90s, for applicants for approval, the need to “satisfy” a UK CAA Surveyor in the interpretation of notices and requirements was often wide ranging.

[1] https://www.mro-network.com/maintenance-repair-overhaul/

 

Brexit & Aviation 73

Reading the arguments made by those most enthusiastic supporters of the UK’s Brexit, even at this moment of acute crisis, they paint a picture of a so called: “managed No-Deal Brexit”.  There’s an illusion that somehow the fragile contingency measure put in place to temporarily mitigate some the worst damage caused a No-Deal outcome makes everything OK.  I call them fragile because none of the measure or guidance put in place has been tested or even been evaluated in terms of costs and benefits or been subject to much independent scrutiny.

The House of Commons libary reports that the UK is a party to some 800 international agreements negotiated by the EU.  That’s a complex and detailed framework established over many decades.  The UK Government will need to replace them if Brexit is to take place.   As has been referred to in this Blog, there are a significant number of aviation agreements to address given the international nature of the business.

One example is that; as a result of Brexit, the UK will cease to be a part of the European Common Aviation Area (ECAA).  Yes, some contingency measures are drafted to mitigate potential damage to air travel between the EU and UK, but they hardly substitute for the existing agreement.  Less is less for the UK.

Under current aviation rules, the EU’s Open Skies Agreement allows member airlines, including those registered in the UK, to operate in each other’s countries.​  As an airline, if you want to benefit from the existing Open Skies agreement post-Brexit, you must be majority EU owned[1].  Less is less for the UK.

In the field of aircraft maintenance, repair and overhaul, British licenced engineers will be losing some of the privileges that they now enjoy.  Individuals may find a way round this by holding multiple licences but at their own expense, in their own time and with less flexibility.

The issues surrounding the recent civil air accidents, highlight the importance of getting aircraft certification right first time and fixing problems quickly.  In Europe, aircraft design and production organisations are required to hold approvals.  These European approvals are much valued and well recognised.  There’s no safety benefit in being required to hold multiple approvals from regulators both in the EU and in the UK.  This is just turning the clock back for the sake of it.

This week, much has changed but much has remained the same.  An extension to the Article 50 process does give the UK Government a little breathing space.  A letter, a formal instrument of the Article 50 extension, has been sent after UK Prime Minister May agreed with the EU.  That has activated Paragraph 3 of the Article 50.

Will UK Politicians come to a rational compromise?  That’s anyone’s guess.  The consequences of No-Deal are huge and shouldn’t be discounted.  The cost of the EU membership is small when compared with the cost of Brexit.  UK Politicains need to honestly say: Brexit will make you poorer, do you still want it?

Surely, there’s going to be a lot of updates to air law in the coming months[2].

[1] https://www.independent.co.uk/news/business/comment/ryanair-brexit-uk-shareholders-airline-ownership-eu-airline-rules-no-deal-cliff-edge-a8817391.html

[2] https://www.aerosociety.com/events-calendar/brexit-what-now-for-aviation

 

Brexit & Aviation 72

Last week, new implementing procedures agreed under a Bilateral Air Safety Agreement (BASA)[1] between the UK and US, were discussed with the aerospace and aviation industry at the Embassy of the United States in London[2].

In the event of a No-Deal Brexit the UK would not be able to continue to participate in the European Aviation Safety Agency (EASA) regulatory system.  However, the UK is saying that design validation processes will be “similar” to those implemented under the existing EU-US bilateral agreement.   Also, there will be continued acceptance by the UK and US of each other’s aviation maintenance approvals.

The UK is working on other bilateral safety arrangements with the aviation authorities in Canada and Brazil.  These are the major aircraft manufacturing countries that have a long history of cooperation on aircraft certification and maintenance.  The international Maintenance and Certification Management Teams (MMT/CMT), both of which consist of representatives from the National Civil Aviation Agency of Brazil (ANAC), EASA, the US FAA and Transport Canada Civil Aviation (TCCA), are taking steps to mutually recognise each others approved organisations.

The UK Government has published updated guidance for the aerospace sector and is preparing for EU Exit[3].  Clearly more import-export agents are going to be needed in the coming years.  Everyone is preparing for the commercial impacts on all the sectors of the aviation industry.   The political and economic uncertainty continues to be unsettling.

Despite all the preparations that have been made, the EU’s European Economic and Social Committee (EESC) has warned that a No-Deal Brexit could “jeopardise” aviation safety standards[4].  That said, current No-Deal Brexit proposals are just temporary solutions.  Only a comprehensive EU-UK agreement will ensure the seamless air connectivity air travelers have come to expect.

 

[1] https://www.flightglobal.com/news/articles/uk-and-usa-sign-safety-accord-to-apply-in-event-of-n-456652/

[2] https://www.caa.co.uk/News/UK-signs-post-EU-exit-air-safety-agreements-with-USA/

[3] https://www.gov.uk/guidance/the-aerospace-sector-and-preparing-for-eu-exit?

[4] https://www.theparliamentmagazine.eu/articles/news/no-deal-brexit-could-‘jeopardise’-eu-aviation-safety-standards

Days to go

Just a few days to go before the Brexit day set in law.  The national and international news are dominated by other concerns.  And an empty space is opening where no one knows what’s happening.  It’s evident that the UK Government and UK Parliament made a massive mistake by invoking Article 50 without a clear agreed plan.

In the snap UK General Election in 2017 the British electorate returned a Parliament that did not give a Conservative Government a majority.   UK Prime Minister May failed to understand that, if she wanted Brexit that would mean cross-party working and compromise.  All there was tabled, was red-lines and stubborn headbutting so the resulting stale mate should be no surprise.

Until this afternoon, it’s assumed that UK Prime Minister May will try to get her deal accepted by the House of Commons (HoC) by a 3rd vote.  It was assumed that the UK Government would be finding the ways and means to tempt those who have opposed her deal.

Now, HoC speaker John Bercow says Prime Minister May cannot bring further meaningful votes on Brexit unless there’s a substantial difference in what’s being offered.  The logic of this is that it stops a Government bullying the HoC and its members into submission.

Whatever happens, one fixed point is the European Council (Art. 50) meeting on Thursday, 21 March[1].  Here the EU27 leaders will meet to discuss the latest developments.  There will be new developments but it’s difficult to predict what they might be at this stage.   This must be a unique situation in recent international affairs.

My prediction remains that a lengthy delay is in prospect.  If that is agreed there will be need for a plan to be tabled and accepted by all parties.  At last, you might say.

Some say that EU officials are thinking that a Short Term (ST) extension would run beyond 23-26 May 2019.  Thus, the UK could need to make arrangements to participate in European Parliament (EP) elections.  Some are contemplating asking for a second referendum as a condition for a Long Term (LT) extension.  But all is still up in the air at this moment.

[1] https://www.consilium.europa.eu/en/meetings/european-council/2019/03/21/art50/

Another week gone

Last week, I wrote: “I think, the UK House of Commons is likly to reject Prime Minister May’s Deal next Tuesday.  Then on Wednesday it’s likly to reject a No-Deal outcome to Brexit.”  Both have come true.  Now, with the vote planned for today, an extension to the Art. 50 process is possible.  The drama that is being played out is very much a Westminster drama.  Once upon a time we depended upon the BBC’s Eastenders for high drama and suspense but not any more.

Parliament is deadlocked.  It’s abundantly clear, that there is no majority for the PM’s deal.  Bringing that deal back to the Commons a 3rd or 4th time won’t change the situation.  There needs to be a way to break the deadlock.

It was said to me that what we need is an alien invassion to get people to lift up their eyes and consider the big picture.  Whereas the Westminster Parliament was once seen as a example to the world, it no longer holds that position.  The UK’s Brexit drama needs to come to a final conclusion.

My view is that the best way is to revoke Art. 50 and set aside Brexit.  There’s nothing to stop the debate returning again in a couple of decades but this current phase of increasing instability needs to be brought to an end.

There is likly to be dramatic changes to British politics but these have been long overdue.  This domestic change is not a matter for the EU.  We need to get our house in order.  That means a big realignment.

NOTE:

Tonight, MPs have voted to extend Brexit beyond 29 March by backing a Government motion forced on PM Theresa May by the Commons.  Thus we can expect new legislation to come forward to change the Brexit date in UK law.  Also, a request will have to be made to the European Union (EU) to make this happen.

Brexit & Aviation 71

I have an admiration for the staff at the House of Commons library.  At least someone is trying to keep track of what’s going on[1].

So far, there have been 475 Brexit related Statutory Instruments (SIs) laid before the UK Parliament.  That’s 79% of the expected 600 SIs. In other words, a great deal of new UK legislation that needs to be in place the day after Brexit.  What’s astonishing is that we hear nothing from our law-makers about these acts of law-making.  The total focus is on the uncertainly over the direction that will be taken by the UK.  There are statements that Brexit is “deadlocked” but there remain many choices that can be made.  However, unless something is agreed exiting European Union (EU) treaties will, by automatic process of law, cease to apply to the UK in 18 day[2].

This situation impacts treaties with non-EU Countries too.  A House of Commons library paper looks at the UK Government’s progress in renegotiating and agreeing replacement treaties with Countries outside of the EU[3].

The UK Government has published a policy on EU Air Services[4].  Unfortunately, there’s little new in the policy and it’s substantially worse than the current arrangements.  Airlines are enacting their contingency measures, but much remains unknown.   For example; Ryanair[5] have said:

“We welcome the Civil Aviation Authority’s decision to grant our UK based airline, Ryanair UK, with a UK AOC, allowing Ryanair to operate UK domestic routes and UK to non-EU routes in a post-Brexit environment.

The risk of a ‘no deal’ Brexit in March is rising, and despite our robust post-Brexit structures, including our post-Brexit plan around European ownership, we continue to call for the UK and EU to agree a transition deal from 31 March 2019, so that any disruption to flights and British consumer summer holidays in 2019 can be avoided.”

The robust post-Brexit structure they are talking about is to change the voting rights of British shareholders such that the rules of being a European airline can be met.

For travellers who contemplate booking holidays or flights to, from or via the UK it may be prudent to wait for a few days.   Certainly, there’s a need to take out travel insurance that can cover a flight cancellation as a result of Brexit.  The insurance sector maybe one that will be benefiting from the increase in uncertainty but that’s their job.

[1] http://researchbriefings.files.parliament.uk/documents/CBP-8370/CBP-8370.pdf

[2] https://interactive.news.sky.com/2017/brexit-countdown/

[3] https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-8370

[4] https://www.gov.uk/guidance/air-services-from-the-eu-to-the-uk-in-the-event-of-no-deal

[5] https://corporate.ryanair.com/news/ryanair-welcomes-caas-issuing-of-uk-aoc-for-ryanair-uk/

 

Where are we?

It’s astonishing how Twitter is being used.  Tweets range from banal stupidly, viscous abuse and tiresome copycat phrases to matters of international diplomacy and important public information.

Here’s a copy of the Tweets that were posted by the European Union’s Michel Barnier @MichelBarnier on 8 March 2019.

“I briefed EU27 Ambassadors and EP today on the ongoing talks with #UK. Following the EU-UK statement of 20 Feb, the EU has proposed to the UK a legally binding interpretation of the #Brexit Withdrawal Agreement. Most importantly:

2/5 The arbitration panel can already, under Article 178 WA, give UK the right to a proportionate suspension of its obligations under the backstop, as a last resort, if EU breaches its best endeavours/good faith obligations to negotiate alternative solutions

3/5 EU ready to give legal force to all commitments from January letter of @eucopresident and @JunckerEU through joint interpretative statement. (link: https://europa.eu/!Kj44wR) This will render best endeavour/good faith obligations even more actionable by an arbitration panel.

4/5 EU commits to give UK the option to exit the Single Customs Territory unilaterally, while the other elements of the backstop must be maintained to avoid a hard border. UK will not be forced into customs union against its will.

5/5 The EU will continue working intensively over the coming days to ensure that the UK leaves the EU with an agreement.”

I read nothing unreasonable in the public statement above.  If this is insufficient for those MPs in the UK who wish to leave the EU, then it’s unlikely that anything will satisfy them at all.  It’s pushing the interpretation of the Withdrawal Agreement (WA), on the table to the limit.

Northern Ireland (NI) will be treated differently whatever happens – Deal or No-Deal or Art. 50 extension or No-Brexit.  Today, it’s a part of the UK that is treated differently for sounds historic reasons.

I’m sure there are incoherent xenophobes who will still shout like mad about a perceived unfairness.  I’m sure Brexit supporting UK politicians will seek to misinterpret the above in the hope of blaming the EU for their folly.  And I’m sure that far from this being the end of something this could be just the beginning of a decade of squabbling.  The paralysis of Brexit uncertainly is concern about the worst-case outcome, namely a No-Deal.  Those UK polticians saying we should jump straight to that worst case outcome to end uncertainty and end damage to the Brexit myth is laughable, illogical and extream foolishness.  Next week in Westminster will be full of loud voices many of which should not be given the time of day.

Brexit & Aviation 70

I wrote the first of my Brexit & Aviation series a year ago.  Now, this is the 70th one.  A year ago, there did seem to be some form of honest negotiations going on.  Commentary often considered and reasoned over the pros and cons of different approaches to Brexit.  When I said: “Brexit is going to complicate aviation in Europe.” I didn’t realise the level of understatement those words entailed.   Complexity is one aspect of the problem.  It’s the confusion of not having a sense of direction that doubles the troubles.  It’s the legs that fake news strories get that is concerning.

“It has been quite shocking to get so far in the political process without having any real clarity about the future. That can’t be positive for the economy.”  That’s not my writting but that’s the words of Willie Walsh Chief Executive Officer IAG in their Annual Report.

Last year, the possibility that the UK would retain membership of the European Aviation Safety Agency (EASA) was real.  Now, bit-by-bit this possibility is waning as a predominantly anti-European tone has been set by the current UK Government.  The implications of Third Country status are being played out as preparations continue for a No-Deal Brexit outcome.  Industry is taking measures[1], and planning more, to insulate itself from the hard-line taken by Conservative politicians.  Large costs are being incurred and it isn’t going to be long before those cost get passed on to the paying passenger.  Although strangely there are some bargains offered for flights and holiday packages because prices factor in an incentive to overcome the caution and level of uncertainty people feel.

A year ago, I did say: “There’s a chance of reaching Brexit day with no clear vision of the future”.  My crystal ball must have been working overtime that day.  Lawmakers are not doing their job.  In normal times there’s a rigorous sequence that is followed that tests legislation before it hits the statute book.  The extream brinkmanship of the last year leaves the UK with a huge to-do-list and no time to practically test new legislation before it’s enforced.

There was an expectation that Bilateral Aviation Safety Agreements (BASAs) would be signed between the UK and others.  This would be used to detail the cooperation between the UK and others, including any mutual acceptance of certificates.  Unless I am mistaken, there isn’t much signed between anyone at this moment time.

A great deal of the difficulties that the UK faces are associated with the “red lines” that have been the policy for the UK Government.  These have tied the hands of all those involved in negotiations to such an extent that an impasse was inevitable.  UK Brexit advocates dismissed talk of duplication of activities and costs with no tangible benefits.  Nevertheless, that is the position the UK finds itself in.

Next week, if an Agreement is accepted the UK will have until 31 December 2020 to solve the thorny issues of international aviation.  During that time that UK will have many of the obligations of an EU Member State but no so many rights.   If an Agreement is not accepted then it’s back to the drawing board – again!  The prospect that Brexit will fail is becoming real.  Maybe that’s why the £ has gained value.

I think, the UK House of Commons is likly to reject Prime Minister May’s Deal next Tuesday.  Then on Wednesday it’s likly to reject a No-Deal outcome to Brexit.  An impass in the UK Parliament should then trigger a return to the people of Britain.  With so little time remaining on the clock an extended Article 50 period seems certain.  If I’m wrong in these predictions then I’m still no worse a sage than UK Ministers and MPs in Parliament if the recent International Trade Committee is anything to go by.

[1] https://www.aviation24.be/airlines/ryanair/ryanair-moves-spare-parts-from-the-uk-to-the-eu-in-anticipation-of-a-hard-brexit/