Aviation – Page 35 – John Vincent

Brexit & Aviation 17

A while back, I wrote about a Statutory Instrument (SI), a form of secondary legislation in the UK. For aviation we have primary legislation namely; the Civil Aviation Act 1982 which amongst other things constitutes a corporate body called the Civil Aviation Authority (CAA).

The CAA is given functions by or under the Air Navigation Order (ANO). That’s the SI. In the ANO are the functions that include the registration of aircraft, the safety of air navigation and aircraft (including airworthiness), the control of air traffic, the certification of operators of aircraft and the licensing of air crews and aerodromes.

At the time when the European Union (Withdrawal) Act[1] was being worked-up, the Government estimated that “the necessary corrections to the law will require between 800 and 1,000 statutory instruments”. The Withdrawal Act has a means for the incorporation of EU legislation into UK law. That includes the EU aviation law, like the Basic Regulation[2] that establishes the European Aviation Safety Agency (EASA). Reading and trying to understand the Withdrawal Act is not easy. My interpretation is that some draft SIs can be changed by a Minister and others need to be laid before, and approved by a resolution of, each House of Parliament. I see this is referred to as the affirmative procedure.

What will happen to process changes to the Air Navigation Order (ANO)? Not only that question but where will the great number of elements of “soft law” in the European system sit in the new UK system? Let’s take Certification Specifications (CS) for example, will they be referenced and tagged to a Schedule somewhere in a revised ANO?

Because this is complex but needs to be done speedily a Parliamentary research paper has just been published[3]. What becomes immediately evident is there’s a vast amount of work to be done and there may not be enough time to do it with the care it deserves. Even to securitise one subject, like aviation demands a great deal of dedicated effort. This leads me to think that there will be little or no detailed scrutiny and thus everything that is in place will get thrown into the pot and become law after exit day on 29 March 2019. There will be little or no opportunity for public comment.

I understand that the Withdrawal Act 2018 will allow for changes to be made after exit day. But how many are likely to be made? There are a lot of questions that need resolution to avoid legal uncertainty after Brexit. There will be need for a lot of public information to let everyone in aviation know the who, what, where, when, why and how of the new British rule book. There will be legal departments up and down the Country frantically amending contracts, processes, proceedures and manuals.

[1] http://www.legislation.gov.uk/ukpga/2018/16/contents/enacted

[2] Referred to as non-domestic EU law.

[3] http://researchbriefings.files.parliament.uk/documents/CBP-8329/CBP-8329.pdf

Aviation & Brexit 16

It’s large, it’s blue and it’s made of steel. It has a Bureau Veritas logo just above a plate declaring its characteristics. Yes, I am the proud owner of a 20ft shipping container. Useful storage. Writing these words, it reminds me of two vital aspects of international trade which must not be ignored in the Brexit talks. One is the importance of Standards and the other is the essential role Certification plays in the smooth operation of a large-scale system.

Aviation is no different. Aircraft move passengers and cargo around the globe with incredible efficiency and safety, that is continuously improving. Decades of experience are embedded in the Standards and the processes of Certification that make this achievement possible.

If you are a supporter of Brexit, you might well say; so what? All that will carry on regardless of the UK’s status, in or out of a European regional block. You might look to international bodies and their role in preserving the free flow of air traffic around the world. Well, naturally that’s not entirely wrong but neither is it entirely right. To intentional only tell half a story is to deceive.

The International Civil Aviation Organization (ICAO) does a grand job wrestling with the complexities of trying to get nearly 200 States to agree. It works hard to try to keep its Standards up-to-date but is generally a step behind the aviation industry. It publishes material that helps States establish their regulatory systems, but it does not do Certification.

In aviation, day-to-day the Standards applied and the Certification work that is conducted is done at a National and Regional level. If you are a supporter of Brexit, you might well say; so what? Everything can be done at a National level. Let me ask; did you ever do combinations and permutations as part of your mathematics schooling? Imagine 200 States and then imagine how many bilateral agreements could be possible between those States. Without need to do the sums – it’s a big number.

To take just one aspect of aviation, in the real world only a selection of the world’s States design, manufacture, maintain, repair or overhaul aircraft. Even so, the number of potential working arrangements or agreements on Standards and Certification is big. Each one requires years of work to mature and operate well.

Today, a great benefit of the European Union (EU) is that it brings together 28 Member States all applying the same Standards and Certification. In fact, its more than that as others join in too. Believe me that’s worth a lot not just to the aviation industry, but passengers benefit hugely too.

Stepping away from these benefits is not a wise move. Such a move has the potential to degrade efficiency and impact safety. It’s certainly a setback to continuous improvement. Those making the Brexit choices need to take heed of the whole story and not just the part that suites their beliefs.

A short flight

This week my travels took me on a low-cost Ryanair flight from Stansted to Cologne on the banks of the Rhine. Back in the 1990s, I was involved in the European validation of the generation of the Boeing 737s that the Irish airline uses. So, it’s interesting for me to fly on, what is now the most popular civil aeroplane in passenger service. Overall, when comparing the passenger experience on what was an internal European flight with my experience of an internal US flight last week, I’d give Ryanair points of praise. That’s despite the delayed return flight that was put down to air traffic control and the aircraft carrier like landings.

Viewed from mainland Europe the notion that Britain should flirt with a “no deal” Brexit isn’t credible. To risk a whole Country’s wellbeing seeking highly speculative benefits and potentially big costs is beyond what sober, sensible and democratic Governments do. So, many people I have spoken too remain mystified by the state of play of the Brexit negotiations. Why go for a lose-lose situation when a win-win is the best outcome?

Whatever the outcome of the negotiations, it’s clear that the lives of UK nationals residing in, and travelling to and from, and inside the European Union (EU) are going to be complex.

To get over this, there’s been an increase in the number of people acquiring the citizenship of other EU Countries. One of the most popular nationalities is German. I know of Brits who are going through the process, language training and all, and mean to see it through.

Life becomes complex. There’s a bit of that when it comes to the immigration ques at airport passport control. Will UK nationals follow the signs with the EU flag and Swiss flag anymore?

Also, I was reminded on the difficulties Americans have using their US driving licences in Germany. Will Brits undergo the need to take a German driving test if they stay for a while?

Currently, we await the Government’s Brexit White Paper. One can only hope that the coming days will provide a degree of clarity and unity. Whitehall will do what it can with an almost impossible task. So, the words on the page might be “imaginative” to say the least.

However, we have seen meltdowns of UK Governments before and so that maybe on the cards too. It was Thatcher’s Poll Tax that threw a huge spanner in the works the last time we saw a complete reversal policy. The late 80s and early 90s were good times for me but the British political landscape was shifting, and the old guard was being replaced. It’s likely we in a similar period.

Aviation & Brexit 15

So, what have I learnt over the last week? It’s a mixture of facts and feelings.

It’s a significant week in that it’s now two-years since the UK referendum vote that resulted in a move to leave the European Union (EU). Let’s recall that the decision to leave was based on a marginal win by those campaigning to leave and the result was unexpected.

I’m sure it’s true for numerous industrial and transport sectors, including aviation that we can say the progress made by the UK Government to secure a good exit deal is appalling. It’s much the fashion to talk about performance-based rules in the aviation regulatory world. If we were to measure the performance of the UK Government against even the lowest levels, they would come out with a great big fail.

With less than a year to go to the scheduled leave date in 2019, its clear that organisations are getting more nervous and extremely concerned that uncertainty continues. At a time when implementation plans should be tabled its seems the UK Government hasn’t even worked out its immediate policies and strategy for aviation.

Having been in a hot and steamy Washington D.C. this week I’m reminded of the huge benefits of international cooperation[1]. On trade, it’s right that global competition works to deliver the best aviation services at the lowest prices. The exception to that sentence is: safety. Only an absolute fool would compete on safety. To their great credit the major manufacturers and the major authorities all agree not to compete on safety.

In practical terms, that means through formal agreements there’s a growing trend to share safety information, increase transparency and to respect one another’s aviation regulatory systems. Gradually as confidence and trust are built so these agreements have been expanded. In fact, that’s what happened last week[2]. Advancing agreement are Europe, US, Canada and Brazil as they all have significant aircraft manufacturing activities.

Where a UK separated from Europe will sit in this mix is unclear. There’s undoubtedly a strong wish that there will be continuity and the great contribution the UK has made in aviation is not lost. However, industry and the regulatory authorities are subject to political risks as much as any other risk. Risk is often looked upon as a combination of the likelihood of something happening combined with the severity of its impact. Since the likelihood of a the most severe Brexit is increasing it doesn’t take a genius to see why people are getting more nervous and extremely concerned.

[1] 2018 FAA-EASA International Aviation Safety Conference “Achieving Safety Success in a Connected World”.

[2] https://twitter.com/FAANews/status/1009121455903297537

Aviation & Brexit 14

Putting aside the strange peculiarities of what has been happening in the UK Parliament this week the subject of “cherry-picking” has arisen again. The unprecedent situation of a major Country leaving the European Union inevitably leads to an unpicking of arrangements that have stood the test of time. The consequence of this unpicking was not understood by most people two-years ago. Now, to use a well-used metaphor; the chickens have come home to roost.

Taking a position of high-principle the idea of “cherry-picking” is strongly resisted by the EU and European Governments. Crudely, this is the case where the leaving Country rejects the parts of European cooperation they don’t like but hangs on to the ones they do like.

There’s nothing wrong with a Country’s expression of self-interest and, in the end, one would hope that a degree of pragmatism will prevail on all sides. So, how does anyone come to a win-win outcome when high-principle and pragmatism are peppered with destructive rhetoric from the political classes?

An example is the “outrage” of politicians and media over the possibility that the UK maybe “excluded” from Galileo space project. Now, if the UK wants to opt-in to such important European projects, it will have to sign-up to a “third country” agreement and make a financial contribution. Asking its former partners – to wait while – isn’t a reasonable option given the slowness with which the UK is forging its new policy positions.

Similar dilemmas face the decisions related to the UK’s continued membership of several European agencies. Whilst the UK ponders, major changes continue to take place within the European Union. Some say, UK Ministers will have to accept that their vision of Brexit, as articulated in the Prime Minister’s Mansion House speech, will not be ready for December 2020[1].

An example of need for a choice to be made is the great work that has been put into updating the European Regulation that determines the roles and responsibilities of the European Aviation Safety Agency (EASA). In December 2015, the European Commission proposed to update aviation safety rules[2]. At the time the UK was supportive of this activity. Now, an updated European Regulation has been voted through the European Parliament and will become law.

I’m pleased this has been adopted because the above includes work I started a decade ago. It’s great to see that a “European Plan for Aviation Safety” will become part of the framework.

Will the UK opt-in to this or not?

[1] https://www.instituteforgovernment.org.uk/sites/default/files/publications/IFGJ6279-Preparing-Brexit-Whitehall-Report-180607-FINAL-3b-WEB.pdf

[2] http://www.europarl.europa.eu/RegData/etudes/BRIE/2018/620199/EPRS_BRI(2018)620199_EN.pdf

Aviation & Brexit 13

This week continues the uncertainty that surrounds Brexit. I was pleased to have the opportunity to attend a meeting called “Beer and Brexit” with Philip Rycroft the Permanent Secretary of the Department for Exiting the European Union. The meeting was organised by “The UK in a Changing Europe” at King’s College at Bush House in London.

Rycroft is undoubtably an interesting character. He seems accustomed to overwhelming jobs, as he handled Scottish devolution and the Deputy PM’s office during the coalition. Throughout the conversation, led by Professor Anand Menon, Professor of European Politics and Foreign Affairs, he was as guarded as anyone would expect from a senior civil servant.

Nevertheless, I did draw one or two conclusions from the answers he gave. One is that the UK civil services is out to hire lots more smart people, particularly in policy development. Another is that his department might continue long after Brexit day or at least its teams may continue. Now, I imagine that includes Transport and Aviation as much as it does any other major subject.

Appearing unflappable Rycroft was asked about what annoyed him the most. The question was asked; was it former colleagues making criticisms in the national press?

My view of his answer was that he didn’t mind provided they stood by their comments and it was anonymous briefings that were the problem. This was said just after references in the conversation to the Armageddon news stories around preparedness for a no deal situation.

He confirmed there will be a Government White Paper on Brexit but wouldn’t be drawn on when it would be published. With today’s news we now know from the Prime Minister that this White Paper will only be available after the up and coming European Union summit. Mrs May is reported to have said: “I’ll be bringing my ministers together for an away day at Chequers to finalise the White Paper we’re going to be publishing”.

All in all, it seems the “can” continues to get kicked down the road by the Government.

There are some hints as to what is to come as published this week was a presentation to explain the UK Government’s vision for a future UK-EU partnership and the framework for transport[1]. This is a 19-page presentation which is board and general but positive and upbeat.

Another separate but equally interesting item that I would like to comment on here is a well thought out paper called: “Brexit and EU Agencies: What the agencies’ existing third country relations can teach us about the future EU-UK relationship”[2]. This paper does highlight the numerous possibilities that could be applied in the field of aviation regulation.

If you like, compare and contrast the detail in the UK Government presentation and the paper of the Forschungsgruppe EU/Europa, Stiftung Wissenschaft und Politik (@SWPBerlin) – Research Division EU/Europe, German Institute for International & Security Affairs. Now I can see why the civil service needs to hire some more smart people to get through Brexit.

[1] https://www.gov.uk/government/publications/framework-for-the-uk-eu-partnership-transport

[2] https://www.swp-berlin.org/fileadmin/contents/products/arbeitspapiere/Brexit_and_EU_agencies.pdf

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