Aviation – Page 26 – John Vincent

Aviation & Brexit 12

Having just read Michel Barnier’s recent speech to the 28th Congress of the International Federation for European Law (FIDE)[1] it suggests why Sunday’s news stories are centred around the doomsday scenario. There’s distinct possibility of a “no deal” scenario between UK and EU. A line in the speech stood out to me: “We do not want, and cannot, move from a community of law based on the supervision of the Court of Justice to a simple political dialogue”.

The “no deal” scenario would be to set aside the current legal framework for negotiations. It would be to turn future discussion between UK and EU into a volatile political tussle between a Country and its neighbouring trading block. It’s would be the diplomatic equivalent to arm wrestling or survival of the fittest. Such an outcome would assure many years of continuing uncertainty even if there wasn’t a collapse in several industries and a whole lot of pain for citizens.

As the departure date gets closer, the Hard Brexiters are incentivised to sabotage the negotiations to get what they want, namely UK crashes out, without a deal. At the same time as the above is in prospect, Ministers continue to emphases that Britain is open for business. Government continues to stress that they want and expects an exit deal with the EU.

In aviation, commentators can only speculate given the paucity of information in the public domain.

It’s interesting to read Professor Keith Hayward’s[2] look at the legal, safety and regulatory “unknown, unknowns” on the countdown to the Brexit day. A former UK CAA colleague of mine has written a useful piece on the subject too[3].

What is clear is that beyond these shores more aviation people are getting more concerned. It’s not an act of ill-will to be prepared. In fact, the international obligations in place require preparedness.

For example, the Federal Aviation Administration (FAA) is preparing to take on the surveillance of the large number of approved repair stations in the UK[4]. Today, this work is addressed in the bilateral aviation agreement between US and EU. An international agreement that may not be valid in the UK on 1 April 2019.

There’s a real need for the UK Government to be more explicit about how the UK aviation industry will be regulated post-Brexit. Legal uncertainty is bad for business and for anyone who wants to fly.

At least over the next 4-days EU-UK negotiations are continuing (Tuesday, 5 June 2018 to Friday, 8 June 2018). The remaining issues with the Withdrawal Agreement are to be chewed over in Brussels. That includes; Northern Ireland/Ireland and the future EU-UK relationship. This is timely given the vote in the UK Parliament next week. That’s when the House of Commons will be compelled to consider all the House of Lords amendments to the draft EU Bill in just one sitting, with virtually no time for debate. All of which is not a recipe for success.

[1] http://europa.eu/rapid/press-release_SPEECH-18-3962_en.htm

[2] https://www.aerosociety.com/news/brexit-airlines-count-down-to-march-2019/

[3] https://www.linkedin.com/pulse/brexit-uk-aviation-cliff-whittaker/

[4] http://www.mro-network.com/maintenance-repair-overhaul/faa-prepared-oversee-its-uk-mros-post-brexit-if-needed

Aviation & Brexit 11

The clock is ticking on negotiations. It was on 29 March 2017 that the UK notified to the European Council its intention to leave the European Union (EU). For quite a while the reassurance that has been going around the aviation industry is that: “no deal” Brexit is “not the likely outcome”.

Now preparations for the next meeting of the European Council (Article 50) are well underway as the next meeting takes place this month. Some are saying that; unless real and substantial progress is made by the European Council meeting, the Brexit deal could fall through. So, the unlikely may become a bit more likely. What would that mean?

Let’s spend a minute or two considering the “no deal” outcome. Basically, as the name suggests, we arrive in March 2019 and nothing is formally agreed between UK and EU. This would be an unprecedented situation. In aviation we are accustomed to having abnormal and emergency procedures to address failures but, as far as we know, no such procedures exit for a Members State to crash out of the EU. It might be obvious to say but I sincerely hope that someone is considering the shape and form of such procedures, even if it’s possible they will never be used.

Back to the “crash out” scenario. The UK’s long and successful membership of the EU has meant that most aviation agreements struck before entry[1] are null and void or have been superseded. There’s little documentation to resurrect that would make sense in the current environment so defining relationships would have to fall back to the most basic international provisions.

From the EU perspective, the default would seem to be that the UK becomes one “third country” in a long list. That’s a “third country” without aviation agreements like for example; Turkey or Ukraine.

Just considering air operations. Europe has a centralised system to authorise “third-country” operators undertaking commercial air transport operations into the EU. So, all UK aircraft operators that wished to fly into Europe would first need to apply for TCO[2] approval.

On the positive side, TCO is about establishing that an air operator is compliant with the applicable standards of the ICAO Annexes to the Chicago Convention. In the case of the UK, initially this should be administrative given that UK air operators’ aircraft are currently in the European system.

In the longer term this can mean more audits and inspections dependent upon the performance of air operator in question. In this event it’s interesting to speculate if the UK would extend its own assessment of foreign operations. Clearly, the paperwork piles up and however focused and well managed this administrative and technical work maybe, it’s the sort of duplication everyone has been trying to eliminate for the last 40 years. Turning the clock back.

[1] 1 January 1973

[2] https://www.easa.europa.eu/easa-and-you/air-operations/tco-third-country-operators

Aviation & Brexit 10

I’ve heard some discussion about resurrecting British Civil Airworthiness Requirements (BCARs). Somewhere in a box, I still have my blue covered copy of Section A. Back in the early 1990s, this was the airworthiness requirement that we applied to all aircraft for which the UK Civil Aviation Authority (CAA) had primary responsibility. The document was first published back in July 1989 and has been updated many times. Embodied in its text are words that once empowered UK airworthiness surveyors of which I was one. Yes, given the judgements expected of technical staff we were called “surveyors” rather than inspectors or administrators.

Now, BCAR Section A[1] is still applied but only to aircraft that are not part of the European system. Generally, these are the so called “Annex II” aircraft. BCAR Section A does not apply to those aircraft that have been the responsibility of the European Aviation Safety Authority (EASA) since 28 September 2003. Although for a long-time prior to EASA’s formation procedures developed for widespread European cooperation. It’s worth noting that the structure and form of these national airworthiness procedures is quite different from the current European regulations. They have a uniquely British heritage as they expanded on the Air Navigation Order (ANO) and its regulations.

So, with Brexit, if the Withdrawal Agreement that is on the table, is accepted, a transitional period will run to the end of 2020. During this period, it’s assumed that the present rules and procedures will continue to apply as now. Although there remains the risk that the UK could “fall off the cliff edge,” it isn’t likely that BCARs will be called back into use as they were in the 1990s.

There would be some major difficulties applying the historic procedures to the latest generation of aircraft and keeping agreements with other Counties going at the same time. That said, it’s possible BCARs could be resurrected but in a new way. One approach to providing national airworthiness procedures in 2021, would be to cut-and-paste the EASA Implementing Rule Part 21.

There isn’t much to be gained by reproducing all the requirement texts because it would be just as easy to have a one-line legislative statement to adopt the output of the European system. If new BCARs are created they must be maintained and that task is always bigger than anyone estimates.

Unfortunately, the pervasive impact of popular politicisation may take a hand. That could result in a complex hybrid of procedures developing where some parts are common and other parts diverge. If it happens, our post-Brexit era could create the need for a great deal of airworthiness administrative management which naturally has to be paid for by someone. However, this happens the UK must have a sound, stable and reliable system to deal with the responsibility for Type Approval of aircraft and all that implies.

[1] https://publicapps.caa.co.uk/modalapplication.aspx?appid=11&mode=detail&id=220

Aviation & Brexit 9

So what next? Amongst the topics to be discussed by the UK and EU will be Transport and building our future relationship after we leave the EU[1]. This does seem broad and general and late when considering the timescales involved. This comes after UK Government Ministers meet with aviation industry representatives to talk about Brexit[2]. So, at least a view of national aviation interests has been heard by Ministers and officials.

It remains the case that a great number of people are in the dark over Brexit preparations. The “wait and see” approach is meaning that investments are being held off. It’s likely, a transition will come in time but its impossible to know its magnitude either for March 2019 or January 2021. So, for the moment, the general attitude seems to be: everyone for themselves. Make whatever contingency measure you like as it will not be the Brexit negotiators who will take responsibility for the outcome.

To follow-on with a calm note, I’ll put the question; who remembers 28 September 2003? It’s the date of an abrupt transition in the world of airworthiness. It was the time at which the EU Regulation (EC) No 1592/2002 on common rules in the field of civil aviation and establishing a European Aviation Safety Agency (EASA) came into force.

To quote: “The Agency shall undertake the certification tasks incumbent upon it pursuant to Article 15 as from 28 September 2003.” In one day responsibility transitioned from a national authority to a European Agency. EASA had to carry out on behalf of Member States the functions and tasks of the State of Design, Manufacture or Registry when related to design approval.

Yes, I remember many dissenting voices clambering to say how that day would bring about chaos and disaster for civil aviation. Also, I must remark that a considerable number of them were politicians in the UK. Now, it was a bumpy ride but because of good will on the part of most authorities and organisations the transition worked.

So, what are a few of the differences between now and then?

One: It took at least 20 years of planning and the whole Joint Aviation Authorities (JAA) experience so that this first Basic Regulation could enter into force;
Two: Happy or unhappy, everyone who needed was pointing in roughly the same direction 15 years ago;
Three: International partners were well informed as to what was happening;
Four: A sound legal framework defined roles and responsibilities and
Five: Dispute resolution mechanisms were clear.

From all this, it can be concluded that it’s more than concerning that we (UK) are where we are, with less than a year to go to leaving the EU. The lack of clarity in direction and different Government departments with different agendas does not bode well for the next couple of years.

[1] https://www.gov.uk/government/news/topics-for-discussions-on-the-future-framework-at-forthcoming-meetings

[2] https://www.gov.uk/government/news/aviation-industry-welcomes-brexit-roundtable

Avition & Brexit 8

Now we have seen the consequences of a UK Government Minister misleading Parliament it’s time to take a Minister’s words seriously. Chris Grayling the Secretary of State for Transport recently answered an MP’s written question with these words:

“During the time-limited implementation period, the UK will no longer be an EU Member State. However, as set out in the terms of the agreement, common rules will remain in place. The EASA basic regulation will therefore continue to apply, so all UK-issued certificates, approvals and licences will be automatically recognised as valid in the EASA system (and vice versa). As the Prime Minister made clear in her speech last month, beyond the implementation period we will want to explore with the EU the terms on which we could remain part of the relevant agencies, such as EASA. This will form part of the negotiations with the EU and Member States on how best to continue cooperation in the field of aviation safety and standards post-exit.[1]”

The concussion I draw from this is that there’s no need to cancel next year’s foreign holiday because it looks like business as usual, even if we (UK) have left the European Union.

To verify this conclusion, I had a look at the: “Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community” published a month ago. It’s not much help as there’s no specific mention of aviation or the EASA Basic Regulation (EC) No 216/2008. However, agreed, and thus coloured in green, is the statement in Article 122 that: “Union law shall be applicable to and in the United Kingdom during the transition period.”

So, until 31 December 2020, it’s like we (UK) have many of the obligations of a Member State but no so many rights. The UK will not participate in a European Parliament election in 2019.

What is unclear is the plan for the first day of 2021 and beyond. Yes, there’s an aspiration to continue to play a part in the European Aviation Safety Agency’s (EASA) but nothing much else. The need for common and proportionate safety standards will not go away. The European Union has brought benefits for both UK consumers and the aviation industry. Better to stay than go.

[1] https://www.theyworkforyou.com/wrans/?id=2018-04-17.136090.h

Aviation & Brexit 7

Generalities are all well and good. In so far as they are constructive and positive they set a direction of travel. This is pertinent to the words of the UK Government in respect of the future of aviation safety regulation. If assurances are correct and negotiations are successful, then UK organisations should experience a gradual transition and not a sudden disruption after March 2019.

Unfortunately, there are some square pegs being presented to round holes. Most of these are associated with the “red lines” that we are told are the policy for the UK Government. Three are: regulatory autonomy, an end of European Court of Justice (ECJ) jurisdiction and an end to the free of movement of people.

Currently, there seems to be conflicting indications as to any flexibility on these positions. If they are hard and fixed, then this means an end of participation in European Aviation Safety Agency (EASA). However, that contradicts the statements from Transport Ministers that the UK wishes to remain an EASA Member State. So, for civil aviation, will there be a rounding of the square peg?

My focus tends to be on the part of the aviation industry that does; development, design, manufacture, maintenance, repair, and overhaul. In fact, airworthiness was the original remit for EASA back in 2003. Since then, that remit has been progressively extended in a way that involves both EASA and the National Aviation Authorities (NAAs).

Today, EASA works on just about all aspects of aviation safety regulation, including; aircraft operations, the licencing of pilots, engineers and air traffic controllers, airports and even environmental noise and emissions.

A full hard Brexit would mean the all internationally required regulatory work would return to the UK. To meet this the levels of activity, capabilities and resources of the UK CAA would need grow substantially. This would be true even if the whole exercise was just to rubber stamp foreign certificates and host their auditors.

You might say what a waste of taxpayers’ money. Maybe not so. Both EASA and UK CAA work on a cost recovery basis for a large part of their annual funding. Now, that’s the real rub. To fund the newly acquired workload UK industry fees and charges would likely increase. Because industry would continue to be active across Europe then it would then end up paying twice. Not what the Brexit advocates promised; duplication of activities and costs but with no tangible benefits.

Given this scenario and considering corporate due diligence, international organisations will be looking at the costs, benefits, and risks. So, what kind of contingencies are being considered? For some organisations it will be to move their Principal Place of Business and approvals to an EASA Member State. Defining the term: “Principal place of Business[1]” was one of the tasks taken up in the early days of EASA. This is to ensure the correct Authority is identified before an application for organisational approval can be accepted and a valid approval issued.

Let’s hope that a firm agreement on continuity will mean this contingency is not needed.

[1] http://publicapps.caa.co.uk/modalapplication.aspx?appid=11&catid=1&id=7872&mode=detail&pagetype=65

Aviation & Brexit 6

Where are we now with Brexit? This month, a couple of statements have been put in the public domain. One of them is the European Commission’s publication: “Withdrawal of the United Kingdom and EU aviation safety rules” from 13 April 2018. This European Union (EU) paper describes the situation with respect to the UK as a non-EU country without a new agreement in place. However, it’s clear that public statements from industry, the Government and the UK Civil Aviation Authority (UK CAA) all indicate a desire of the UK to remain as a member of the European Aviation Safety Agency (EASA). That wish will need to be implemented in some manner or form.

In the longer term, there’s some expectation that a Bilateral Aviation Safety Agreement (BASA) could be signed between the EU and the UK as a non-EU country. This would be used to detail the cooperation between the EU and UK, including any mutual acceptance of certificates.

In the shorter term, it’s possible to imagine a Working Arrangement (WA) between EASA and the UK CAA that would address continuing technical matters.

Either way any new agreement is a matter for the EU and the UK Government. It may or may not be in place during the much talked of implementation period after March 2019.

The UK is unlike other Countries in that it has been a founding member of both the Joint Aviation Authorities (JAA) and EASA but will be the first to plan to leave the EU. Nevertheless, in the European aviation field the UK remains a member of intergovernmental bodies like; ECAC[1] and EUROCONTROL.

It is worth noting that the JAA Cyprus Arrangements ceased in 30 June 2009. Other non-EU States that were part of the JAA had to find new working arrangements with EASA after that date.

Today, four non-EU European States are EASA Member States and have a seat on the EASA Management Board. The Management Board is responsible for the definition of the Agency’s priorities, the establishment of the budget and for monitoring the Agency’s operation.

It is possible to imagine the UK becoming the fifth.

If this is not achieved, and no unique or emergency measure are in place then significant difficulties will arise. On its website, the UK CAA[2] has made it clear that even for such an unlikely situation contingency plans are being made.

[1] https://www.ecac-ceac.org/

[2] https://www.caa.co.uk/Our-work/Newsroom/Hot-topics/

Aviation & Brexit 5

You might ask what’s a “Statutory Instrument”? Well, in the United Kingdom they are a key form of delegated or secondary legislation. That’s distinct from Primary legislation, which in the case of civil aviation is the Civil Aviation Act 1982[1]. Part III of the Civil Aviation Act 1982 calls for an Air Navigation Order (ANO).

The latest UK Air Navigation Order (ANO) 2016[2] is a Statutory Instrument. The UK ANO forms the legal basis for many areas of civil aviation that are regulated at a national level. In effect, it gives the UK Civil Aviation Authority (CAA) is powers and its responsibilities.

The UK ANO is amended from time to time to provide the links between European legislation and national legislation. This Statutory Instrument needs to reflect the general details of the civil aviation regulatory framework that’s expected to work.

It’s well worth remembering that, unlike the USA, the European civil aviation system is not a federal system. To work effectively, it needs the common European part and the national part to work together harmoniously. That has been achieved with remarkable results. It has been an achievement that has enabled great efficiency, a fertile environment for international commercial success and safety improvement.

Taking one example in the filed of aircraft airworthiness. Today, “certification” is defined as meaning: any form of recognition that a product, part or appliance, organisation or person complies with the applicable requirements including the provisions of this Order (ANO) or the Basic EASA Regulation and its implementing rules, as well as the issue of any certificate attesting to such compliance.

If Brexit happens many choices are open to the legislator. That’s the Government and Parliament in the UK. One would be to maintain links to the Basic EASA Regulation. Another would be to delete all references to the Basic EASA Regulation and reference an alternative new text. Naturally, there are numerous combinations and permutations that can be imagined. Whatever happens the resulting new Statutory Instrument(s) will need to comply with existing international obligation namely; the Chicago Convention.

Here I’ve described a great deal of detailed work and no doubt its sitting on someone’s desk. Above I referred to “certification” but that’s just one aspect of a much wider range of aviation activities. Clearly, its one where errors and omissions are likely to be costly to industry and ultimately the traveling public. Normally, consultation and deliberations on significant legislative changes take place over many years. Thus, it’s reasonable to be concerned about what might happen over the coming year. Simple this is not.

[1] https://www.legislation.gov.uk/ukpga/1982/16/contents

[2] http://www.legislation.gov.uk/uksi/2016/765/contents/made

Aviation & Brexit 4

I must say, I feel more positive about the prospects for the UK’s continuing participation in the workings of the European Aviation Safety Agency (EASA). Yes, we (UK) remain mired in uncertainty. Yes, it’s the non-transport politicians who are making the running and yes, nothing is agreed until everything is agreed. But at least a good deal of serious consideration is being given to possible scenarios for a post-Brexit world.

Top of everybody’s list in aviation is that the UK should continue its membership of EASA[1], at least for the much-discussed transition period or implemention period as it might better be called. Although this does mean losing voting rights and the opportunity for Directorships to be taken up by Brits, there’s enough advantages to keep the wings of aviation flying.

In the European aviation system, one of the key committees established by European law, often called the EASA “Basic Regulation” is the: EASA Committee. This is a high-level committee that handles: “common safety rules in the field of civil aviation”. Now, the Agency’s rulemaking procedure is such that it submits its formal technical opinions to the decision-making process of the European Commission, which is, in effect, the EASA Committee. So, to influence future European aviation rules it’s important to be present and able to speak at the meetings of this key committee.

The examples of Norway and Switzerland show that non-EU Countries can exercise a degree of technical influence at this level. In fact, this is not surprising since much of that which is taken forward requires a high degree of consensus to work in an integrated system. Also, both Norway and Switzerland are represented on the EASA Management Board[2]. Which is reasonable because they both make financial and staffing contributions to the Agency.

I think, Switzerland shows a way forward. Not for reasons that the Country is like the UK. After all, it’s smaller, it’s federal, speaks many languages and we don’t have the Alps. On the other hand, Switzerland, like the UK has a manufacture that depends on access to a global marketplace and is well connected to around the world. Also, in recent times, their federal aviation authority has been progressive in the field of aviation safety management.

There’s a chance of reaching Brexit day with no clear vision of the future but having a basic contingency is better than nothing. Naturally, I would rather see the UK play a full part in European aviation as it has with great success in past decades. Sitting in the second row at the table isn’t the best place for a Country with our incredible heritage. There’s no barrier to being European and being Global even if there’s a block in the minds of some Westminster politicians. As the joke about being lost and asking directions goes: “I wouldn’t start from here, Sir”.

[1] https://publications.parliament.uk/pa/cm201719/cmselect/cmeuleg/301-xiv/30117.htm

[2] https://www.easa.europa.eu/the-agency/management-board/members

Aviation & Brexit 2

On the road to the Brexit many questions remain unanswered. I’m writing this article responding to several assertions that I’ve seen made in the social media world. On aviation, here I’d like to add my perspective given that the subject is not straightforward or simple.

The European Aviation Safety Agency, EASA has a membership that extends beyond the EU Member States. International cooperation has been a key activity of the European Commission and EASA since its establishment. This is quite rational and reasonable given that civil aviation is one of the most international businesses in the world. One role EASA has is to promote European and worldwide standards. Its long been recognised that regulatory fragmentation has a detrimental impact on all aspect of civil aviation, including safety.

The EU has written agreements with many Countries[1]. There are working arrangement, bilateral agreements, memorandums of understanding and examples of technical cooperation. Four non-EU European States are EASA Member States. If a Country is not an EASA Member States it is called a “Third Country”. This term is significant because it’s used extensively in existing European aviation legislation.

In 2006, Switzerland become a member of the EASA. It was the fourth non-EU country to adopt EU aviation safety legislation after Norway, Iceland and Liechtenstein. These four non-EU countries are represented in the Agency’s Management Board and their nationals are eligible to work for the Agency in Cologne.

Reports suggest that the door to EASA membership is open to the UK. This proposal of Agency membership is greatly favoured by industry bodies and many of the UK’s international partners. The benefits are notable, and it does provide for a degree of continuity for an industry where long-term planning is essential. The traveling public would benefit from that continuity too.

An integrated aviation safety system in Europe isn’t just an abstract concept, it’s a reality. We learn from each other’s experiences and that learning is fed directly into day-to-day aircraft operations. Its not hyperbole to say that Europe is the most advanced aviation region in the world.

The UK’s history is one where we have made immensely significant contributions to the development of aviation safety regulation in Europe. In my view the benefits of continuing along this road outweigh, by a huge margin any speculative benefits of regulatory divergence.

Over the next year, negotiations will address the detailed agreement to describe the way forward for UK-EU civil aviation. Building on our positive achievements would seem to be the wisest and safest course of action.

[1] https://www.easa.europa.eu/easa-and-you/international-cooperation/easa-by-country/map