February 2020 – John Vincent

Brexit, Aviation and the Withdrawal 12

It can take a long sentence to say something simple. On second reading, that simple sentence can mean a lot more than is first understood. Take this text for example:

In the case of conflicting interpretations of the laws, regulations or requirements pertaining to certification or approvals under this Agreement, the interpretation of the competent aeronautical authorities of the Contracting State whose laws, regulations or requirements is being interpreted shall prevail.

So, said an exchange of notes between the UK and US dated 28 December 1972. For reference, the UK joined the European Communities on 1 January 1973. The aim of the note was the reciprocal acceptance of airworthiness certificates. This sort of agreement is vital given that civil aeronautical products get shipped for use all over the globe.

Thus, the UK accepted that if there was a disagreement about a US rule then US law prevailed. Because this is about reciprocity, so the US accepted that if there was a disagreement about a UK rule then UK law prevailed.

Here we are in 2020 with talk of creating a suite of new Bilateral Aviation Safety Agreements (BASAs) as a result of the UK’s withdrawal from the EU. Wouldn’t it be quick and pragmatic to use similar words to the 1972 ones again?

Here lies a big problem or at least that’s how one red line makes life difficult. If the UK’s current statements about being an independent self-governing nation totally excludes any role for the applicability of European law how can a reciprocal agreement be written?

Also, there’s the historic inconsistency, as before the UK joined the EU it accepted by the note mentioned that interpretations set against another State’s law would be accepted. There’s a peculiar element to this too, given that at the point of withdrawal from the EU, UK law and EU law are harmonised on the matters of certification and approvals.

Compromise requires a rejection of a narrow doctrine. If both the UK and the EU are satisfied that they both have competent aeronautical authorities, then the reciprocal acceptance of certifications should be possible. That’s if there’s the political will to make it happen.

The industry group ADS[1] said: “We are disappointed that both the UK Government and the EU are not seeking a more ambitious approach to aviation safety.” It’s easy to see why they are disappointed. That said, negotiations are just starting, and practical opportunities exist.

[1] https://www.adsgroup.org.uk/news/newsroom/ads-statement-on-uk-approach-to-future-economic-relationship/

Brexit, Aviation and the Withdrawal 11

Spring is beckoning. The phoney war will have to come to an end soon. EU-UK negotiations are set to start in the week of 2 March 2020. There’s every good chance a close and ambitious partnership between the EU and UK can be built.

On civil aviation the UK is seeking an agreement that should: “consider arrangements typically included in EU bilateral aviation agreements”. This is written as if the Europe has no history of deep and detailed cooperation that has been built over decades. It’s difficult to image a blank sheet of paper in front of the negotiating teams.

On airspace use, the EU is saying that the UK should have less access to EU airspace but may have more than other third countries, if it applies by specific rules[1]. This does have the potential to take on board the interest of travellers on both sides of the divide.

On safety, the UK is a calling for a Bilateral Aviation Safety Agreement (BASA)[2]. No prospective ambition to remain part of the EU’s Agency, EASA is mentioned.

For the above there’s a paragraph heading titled “Appropriate governance arrangements” but no indication as to what they might be. With the existing EU-US BASA[3] there’s a Bilateral Oversight Board (BOB) that is responsible for ensuring the effective functioning of the BASA.

I remember supporting that activity. It does tend to be conducted at a high level with the respective partners. Then detailed work is delegated to more technical activities under the watchful eye of the BOB. Now, that kind of working arrangement does not preclude UK Civil Aviation Authority (CAA) technical staff participating in EASA working groups or vice versa.

An EU-UK BASA maybe a new bespoke agreement but it is a distinct break with the past of cooperation. Europe enacted a process of working together before the time of EU competence in this area. It was on 11 September 1990, with the signing of the “Arrangements concerning the Development, the Acceptance and the Implementation of Joint Aviation Requirements” (Cyprus Arrangements), by 24 States that the Joint Aviation Authorities (JAA) came formally into being.

A BASA does weaken existing international ties because at its core is the preservation of regulatory control above and beyond joint working. No longer is the arrangement captured in the phrase “Unus pro omnibus, omnes pro uno”[4].

I’m sure, the EU will respect British sovereignty, and Britain will respect EU Member States sovereignty. Nice to say but such statements say nothing about common interests of which there are many in aviation. We don’t yet know to what extent either the EU or the UK will be willing to compromise as a result of detailed negotiations, maybe long into the night. By the middle of this year a clearer picture will emerge.

[1] https://www.instituteforgovernment.org.uk/explainers/future-relationship-uk-eu-mandates

[2] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/868874/The_Future_Relationship_with_the_EU.pdf

[3] https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=OJ:JOL_2011_291_R_0001_01&from=EN

[4] Latin phrase that means “One for all, all for one” in English.

Brexit, Aviation and the Withdrawal 10

For all those who are experiencing the sandstorm[1] known as the “Calima” in the Canary Islands:

If your medium-haul flight[2] is delayed, EU law may entitle you to care and assistance during the delay (which means food, drink and accommodation). Depending on the length and cause of the delay, you may also be able to claim a lump sum in compensation.

As I understand it, it’s good to know that this advice remains applicable to British passengers. This Saharan sandstorm has reduced visibility and caused hundreds of flight diversions and cancellations.

Over the next months we will see just how much Brexit is either a means to another end or a renormalisation of decades of semi-detached British attitudes towards our nearest neighbours.

In the first case, this is an ideological conflict where disruption, at whatever the cost, is seen as the route to a transformational future. A radical populist domestic desire to reshape Britain. Certainly, this direction will inflict much pain on people for a perceived “greater good” of the few.

In the second case, a rational and robust settlement is possible that can bring about continued peace, prosperity and friendship just as is stamped on the new 50p coin[3]. This outcome requires pragmatism and the ability to seek fair and balanced trade-offs.

The political problem lies between the two cases and it’s that of overpromising and underdelivering. Winning Brexit in the UK has meant a great deal of overpromising. So, the winner’s political danger of underdelivering are big. Sadly, that’s the irritating sharp spike that leads to much of the daily bluster and sloganizing.

In my endless stream of e-mails, I received an advertisement for a training course. It said: Learn how to deal with aspects of decision making and combine your abilities with sound judgement. Given the choices ahead, there are more than a few British politicians and civil servants in need.

European Ministers will be attending this week’s EU General Affairs Council (GAC) in Brussels[4]. The GAC agenda includes preparing for the March European Council meeting and the upcoming negotiations on a new partnership with the UK. So, both parties are busy preparing.

It seems to me that independence and partnership are compatible. They have been for centuries. Every opportunity needs to be used to find the right form of words to capture that idea. Continued peace, prosperity and friendship with our neighbours is far too valuable to be vandalized for headlines in The Sun or Daily Mail.

[1] https://atmosphere.copernicus.eu/europe-struck-desert-dust

[2] Any flight that covers 1,500km – 3,500km is medium-haul.

[3] https://www.royalmint.com/our-coins/events/withdrawal-from-the-european-union-2020/

[4] https://twitter.com/EU2020HR/status/1232209919140560896?s=20

Brexit, Aviation and the Withdrawal 9

Although we are in a – more to follow – time, the shape of the future aviation relationship between the EU and UK goes along these lines:

“The Government believes there is mutual benefit in an air transport agreement covering market access for air services, aviation safety and security, and collaboration on air traffic management.”[1]

In other statements the repetitious reference to national sovereignty is peculiar. In case the authors haven’t noticed the UK is no longer an EU Member State. Above and beyond this, over the generations, the UK has signed a parade of international treaties and each one of them pools some degree of sovereignty. Clearly, negotiations on a new treaty will necessitate the same. Even more so because of the proximity of the two parties. One witty journalist has commented: my advice on Brexit: just ignore everything for the next couple of weeks.

The UK will be negotiating with a whole host of States. I wonder how productive all the mischief by unnamed “sources” around Number 10 Downing Street is being viewed by across the rest of the world? The dangerous impression can go abroad that great care should be taken before trusting this recently elected Conservative Government.

Time for some good news. Yes, there is some good news. It underlines a commitment, at a working level to national investments on the aerospace industries beyond Brexit. This week there was an event to launch the “Aerospace Sector Deal – One Year On” report[2] by the UK’s Aerospace Growth Partnership (AGP). The AGP is a partnership between the UK Government, industry and others.

The event was hosted at the Advanced Manufacturing Research Centre (AMRC)[3] in Wales. In the past its projects have been funded by UK institutions, European Commission and other external bodies, and involve collaboration with research and industrial partners. Such collaborations are of mutual benefit. Let’s hope that no new unnecessary barriers are erected between researchers on either side of the channel.

One sad news to note is that because we are no longer citizens of an EU Member States, British professionals are no longer eligible to apply for jobs in EU Agencies. For example, to get a job at EASA in Cologne you need to be a national of a Member State of the European Union, Iceland, Liechtenstein, Norway or Switzerland. As written, this excludes the recruiting of UK staff, unless of course that they have more than one passport. So, much for the power of that new blue/black UK passport displayed on the front pages of British newspapers this weekend.

[1] https://www.gov.uk/government/speeches/the-future-relationship-between-the-uk-and-the-eu

[2] https://aerospacegrowthpartnership.files.wordpress.com/2020/02/aerospace-sector-deal-one-year-on-vf-1.pdf

[3] https://www.amrc.co.uk/pages/about

Brexit, Aviation and the Withdrawal 8

The recent updates from the Number 10 Downing Street Press Office[1] show that there’s an immense amount of confusion w.r.t. the UK’s intentions going into negotiations with other parties. Some of this maybe tactical but much of it indicates that the ruling Conservative Party has not moved from a period of campaigning to a period of Governing. Due to this evident situation, it’s a dangerous time to be entering into serious negotiations on subjects that may have an impact for decades to come.

Now it’s said that the UK wants a Canada-Free Trade Agreement (FTA) type relationship with the EU[2]. At the same time there’s little consideration of working together on common problems for common benefits. The notion of mutuality is completely lost in recent speeches.

Today, the UK Government has published details of proposals for points-based immigration system. So called “lower-skilled” workers will be barred from working in the UK. Given that the aerospace and aviation industries are generally considered to require “higher-skilled” workers the impact here should be manageable. However, entry level salaries[3] for newly qualitied pilots can be less than £20,000, particularly where training is necessary. Also, entry level salaries for engineering apprentices are generally less than the above figure. So, the UK proposals do act to restrict such posts to British passport holders only. Given the truly international nature of the aerospace and aviation industries this is limiting.

Without an ambitious UK-EU deal beyond the end of this year there’s going to be disruption to air transport[4]. Certainly, that’s the way British pilots see the next steps. Living on an island, air transport is of considerable importance. Even more so for the UK than a good number of EU Member States. By December there needs to be something basic on the table that’s agreed upon.

I think, restricting the movements of people within Europe but at the same time calling for an EU-UK FTA is incompatible. At a global level, faced, as we are with both the troubles of the Boeing 737 MAX and the outbreak crisis. Adding trade tensions and political instability to the mix is making 2020 a rollercoaster ride. Calming that ride down for 2021 should be an overall objective.

Throughout history the business of flying has proven to be incredibly resilient, but most professionals know that changing lots of significant things all at once is a recipe for failure. How come politicians don’t know this too?

[1] @10DowningStreet Press Office and Task Force Europe.

[2] https://no10media.blog.gov.uk/2020/02/17/david-frost-lecture-reflections-on-the-revolutions-in-europe/

[3] https://www.prospects.ac.uk/job-profiles/airline-pilot

[4] https://www.balpa.org/Media-Centre/Press-Releases/Brexit-There-is-no-WTO-default-for-aviation-so-UK

Brexit, Aviation and the Withdrawal 7

imgid153119926 One of the popular illusions that Brexit supporters carried off during the campaigning of the last few years was to persuade people that the European Union (EU) was atypically bureaucratic. A false comparison often suggested that the UK should be more like the US and therefore less bureaucratic. This nonsense did seem to get into the public consciousness. Tabloid newspapers peddled the mirage of complete free trade. Even though it’s, as I say, complete and utter nonsense.

Just a few second of reading the US Federal Register[1], as I often did in my past roles, quickly shows the complexity of the legal and regulatory processes and structures in the US. Docket No. USTR–2019–0003 a “Review of Action: Enforcement of U.S. WTO Rights in Large Civil Aircraft Dispute” doesn’t make pleasant reading for the EU or the UK[2]. In fact, there’s nothing to choose between how hard these measures hit EU Member States or the UK. Brexit doesn’t exist in this dispute.

The outcome of the review is that there will be an increase in the additional duty rate imposed on aircraft and parts imported from the EU and UK, effective from Wednesday, 18 March 2020. Rightly, the UK’s International Trade Secretary has expressed concern and disappointment[3]. It’s interesting to speculate what this will do to future trade negotiations. This isn’t the zero-tariff world that Brexit supporters promised. In the real world, President Trump’s tariffs are popular amongst his supporter base and it’s an election year in the US.

European manufactures are also concerned and disappointed[4]. The sad aspect of this escalation is retaliation and that it’s likely that the EU will impose tariffs on new large US aircraft later in the year.

My view is that, imposing tariffs on aircraft parts is in no one’s interest and harmful to not just the commercial health of the aviation industry but flight safety and security too.

By the way, on a lighter note US fedearal administrative language is a gem: For purposes of the subheading listed below, the informal product description defines and limits the scope of the proposed action and is intended to cover only a subsection of the subheading.

[1]https://ustr.gov/sites/default/files/enforcement/301Investigations/Review_of_Action_Enforcement_of_U.S._WTO_Rights_in_Large_Civil_Aircraft_Dispute.pdf

[2] https://www.latimes.com/business/story/2020-02-14/trump-tariffs-europe-aircraft

[3] https://www.gov.uk/government/news/update-on-airbus-dispute?utm_source=1e391616-b697-49ed-bb9a-bc178465499b&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

[4] https://www.airbus.com/newsroom/press-releases/en/2020/02/airbus-statement-on-ustr-decision–15-feb-2020.html

Brexit, Aviation and the Withdrawal 6

As in “The Prisoner” the UK Chancellor of the Exchequer seems to have told the UK Prime Minister: I am not a number. The Westminster Village is beginning to look more like The Village in the cult 1960s British TV series[1]. I don’t like being right on such matters. But my last Blog did imply posturing in respect to EU-UK negotiations is the purview of Number 10 Downing Street. No others will be tolerated doing so in this UK Government. We now have populist politicians on both sides of the Atlantic using all the tools of the trade to reinforce their power. The extent to which people support this post-Brexit pathway to the future is extremely questionable. One of my objections is that placing faith in powerful men hasn’t produced good outcomes in history.

Another objection, and more pertinent to the topic of aviation is that a failure to engaging with the complexities that are challenging our societies will just result in lost years of banalities, evasion and superficiality. It’s my firm belief that “Europe”, wherever you put the boundaries, will only continue to be successful in meeting those challenges by encouraging creativity, imagination and innovation but in a stable environment where certain failures can be tolerated. Truly learning from failure has been the stimulus for transformational benefits time and time again.

Now, the UK is not doing well, but neither is the Eurozone’s as GDP increased by only 0.1% in the fourth quarter of last year. Plundering history to wrap us in a wall of nostalgia will do nothing to improve both our economic and environmental quality of life. Focusing on Climate Change is going to require civil aviation to be radical. Incremental progress, at great expense, is often a means to avoid change. I’m sorry to say that has been the record of the Single European Sky (SES)[2] project in Europe. Brexit or no Brexit, it makes little difference in respect of the future of how our airspace is best used. Geographical boundaries are false boundaries when it comes to tackling Climate Change in the air.

Maybe this is a time for the UK to be like the grit in the oysters. Taking everyone’s problem but, in standing outside the constraints of conventional intergovernmental processes being able to bring a fresh look at sustainable aviation. That would be a better way than to grip nostalgia for a golden past. The fundamentals of air traffic management were invented not more than 15 miles from where I’m siting[3]. So, let’s use history, without getting all starry eyed, and jointly build a sustainable future together. EU-UK negotiations need to be open to this prospect.

Be Seeing You.

[1] https://www.portmeiriononline.co.uk/the-prisoner/c140

[2] The Single European Sky (SES) is a European initiative to improve the way Europe’s airspace is managed.

[3] https://www.historiccroydonairport.org.uk/

Brexit, Aviation and the Withdrawal 5

It’s like the sun rising at high latitudes. Slowly the light starts to emerge. Information on the direction EU-UK negotiations may take is slowly finding its way into the public domain.

The fact is that until the end of this year existing agreements between the European Union (EU) and third countries continue to be applicable to the UK. That’s a great breathing space but it will be a short lived one. Campaigners posturing and saying that a Brexit deal would deliver the: “exact same benefit” as EU membership – well that’s now defunct. This week, political statements see an end to frictionless trade with EU Member States[1]. How much of this new posturing is for the detailed negotiations to come is unclear? Even the roles of those doing the posturing may change as the UK’s Prime Minister (PM) will carry out what is expected to be a wide-ranging cabinet reshuffle.

Media talk of an “Australian Model” for post-Brexit arrangements is simply talk of a No Deal Brexit by another name. The language used is aimed at calming those who still shudder at the thought of walking away from the table. In fact, there are long-standing ties between the EU and Australia[2]. There’s a working arrangement between the respective aviation authorities, but it’s limited in scope[3]. In practice, in my experience there’s been good communication between the European Aviation Safety Agency (EASA) and the Civil Aviation Safety Authority of Australia (CASA)[4].

On a completely different subject, but one that impacts aviation and travel markedly, there’s the subject of time. The act of withdrawing from the EU means that the UK doesn’t have to follow its neighbours. In March, last year, the European Parliament voted to stop changing the clocks every year. EU Member States will need to choose to stick to what is now Winter Time or Summer Time.

On Sunday 31 March, I’ll be looking forward to putting my clock forward one hour. But what will we (UK) do in 2021? Will we continue with the same ritual every year or will we join our European colleagues and fix our time? There are industry concerns that variations in the time differences between the UK and EU Member States adds complexity for UK businesses large and small[5]. It certainly would make scheduling aircraft routes more challenging. Maybe this subject will be addressed in any new agreements on air connectivity or maybe not?

[1] https://www.gov.uk/government/news/government-confirms-plans-to-introduce-import-controls

[2] https://eeas.europa.eu/headquarters/headquarters-homepage/610/australia-and-eu_en

[3] https://www.easa.europa.eu/easa-and-you/international-cooperation/easa-by-country/countries/australia

[4] https://www.casa.gov.au/

[5] https://publications.parliament.uk/pa/ld5801/ldselect/ldeucom/15/1502.htm

Brexit, Aviation and the Withdrawal 4

The act of withdrawing from the European Union (EU) has been underway for a week. Already there’s considerable confusion over the UK’s longer-term relationship with European Member States. Differences of political opinion are evident over what’s to be discontinued and what not. Hopefully, the next steps are being guided by the Political Declaration (PD) agreed between the EU and the UK in October 2019.

It’s worth noting the reality of the current situation. The Withdrawal Agreement (WA)[1] is a Treaty[2] which governs the terms of the withdrawal of the UK. It will continue to apply, even if there’s a Brexit “crash out” at the end of the year.

Going forward in this period of transition isn’t necessarily reversing the past. That said, the past must be respected. But you might say: why? Let’s stride off into the sunny uplands with a blank sheet of paper in our hands. Unfortunately, that’s like walking into a snowstorm armed with only a tube of toothpaste. My metaphor is about changing aviation rules, regulations and standards.

One aspect of transport systems is their relative long lives. Given that investments in aviation are high, most products are designed and produced to be in service for more than a couple of decades.

Another aspect is the need for parts of the aviation system to interoperate safely with other parts. Landing an aeroplane in Manchester shouldn’t be radically different from landing one in Munich, or Manila for that matter. Fixing one is the same task in any of those cities.

What I’m saying is both European and British rules, regulations and standards must comply with their international counterparts. That doesn’t mean these no scope for differences, but it does put some constraints on what can be practically done, especially in a limited time.

The EU and the UK have set out their opening positions for their future relationship on aviation. For the above reasons and more, I have no doubt that there will be a degree of convergence over the next few months. The cancellation of laws applied during this period of withdrawal can only happen if something viable is put in their place.

Meanwhile aviation organisations are updating their Brexit public information[3]. That said, words like “termination” are avoided because no one knows what the situation will be in 2021.

[1] The Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community.

[2] A treaty is a formal written agreement entered into by actors in international law, namely sovereign states and international organizations.

[3] https://www.easa.europa.eu/brexit

Brexit, Aviation and the Withdrawal 3

“Time is an illusion. Lunchtime doubly so.[1]” It seems strange to me that the first and only time I have ever been in the London O2 arena was 20 years ago when it opened as the Millennium Dome. In that 20 years, I moved from aircraft certification to aviation safety and research to playing my part in setting up a new European Agency in Cologne. And then retiring back to the UK. The millennium events were full of ambition, imagination and hope. As we enter the 2^nd decade of the 2000s, the experience of Brexit makes no sense in that context.

This week, on behalf of the EU, the European Commission adopted a draft negotiating directive for a new partnership with the United Kingdom (UK)[2]. This material includes the following for Transport and Aviation:

b) Aviation safety
The envisaged partnership should facilitate trade and investment in aeronautical products, parts and appliances through cooperation in areas such as certification and monitoring, the production oversight and environmental approval and testing. Negotiations should be based on both Parties being satisfied with the other Party’s requirements, regulatory processes and capacity to implement them.
Nothing in the envisaged partnership should entail reciprocal acceptance of the standards and technical regulations of the Parties. Rather, it should limit duplication of assessments to significant regulatory differences and allow, to the extent possible, reliance on the certification system of the other Party. It may also specify modalities, based for example on the respective experience and knowledge of the other party, for the respective level of involvement of the authorities. To facilitate the achievement of the objective set out above, the envisaged partnership may also provide for regulatory co-operation.
The acceptance by one Party of findings or certificates of the other Party shall only take place when, and as long as, the first Party is able to establish and maintain confidence in the other Party’s ability to discharge its obligations in accordance with the envisaged partnership. The envisaged partnership should include appropriate cooperation mechanisms to verify on a reciprocal basis the continued fitness and ability of the regulatory bodies involved in its implementation.

However awkwardly written, none of this negotiating text should be a surprise. This is what the European Union (EU) might say to any 3^rd Country. Given that the starting position for the UK is alignment then aspects of the above should be achievable without great stress. However, there are subjects like; initial airworthiness (design certification) where the UK has not been fully competent since September 2003. A demonstration of ability, capacity, experience and knowledge on that subject will likely take more than 11 months. Much of that depends on the degree to which the slogan: “take back control” was intended.

No doubt the above negotiating text on aviation safety is well researched and reasoned and that the background thinking exists in internal documents within the EU. Since Brexit, British diplomats no longer have formal access to internal documents and information so there’s likely to be a lot more dinners and lunches in Brussels restaurants.

Yes, the UK has formally left the EU, but it hasn’t left numerous other European institutions. One of them is an intergovernmental organisation based in Paris called the European Civil Aviation Conference (ECAC)[3]. The predecessor to the European Union Safety Aviation Agency (EASA), the Joint Aviation Authorities (JAA) were established by ECAC in the 1990s. It will be interesting to see what role the UK will play in this ECAC in coming years. Will it be more vocal?

[1] Quote from: Douglas Adams, The Hitchhiker’s Guide to the Galaxy.

[2] https://ec.europa.eu/info/european-union-and-united-kingdom-forging-new-partnership/future-partnership/guide-negotiations_en

[3] https://www.ecac-ceac.org/about-ecac