Category: Post Art 50

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

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

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