Regulation – Page 10 – John Vincent

Brexit & Aviation 118

For the British politician the 31^st January 2020 is a big event. For most people in employment, the Brexit confusion and uncertainty continues at least for another 11 months. Social Media is a good indication of the conversations people in aviation employment are having. One question raised yesterday has been raised many times: After Brexit will the EASA licences that were obtained in the UK still be valid?

Despite the name, these mandatory licences are not issued by EASA in Cologne but issued by European Union (EU) Member States applying European rules. National Aviation Authorities (NAAs) have this responsibility. The European system requires EASA and the NAAs to work together. In order to get an EASA Part-66 AML (Aircraft Maintenance License), an applicant needs to show a basic knowledge in relevant aviation subjects.

Having common rules throughout EASA Member States means that they accept an EASA licence that is granted by one of those States. In addition, States across the globe, who have a relationship with the EU can choose to accept an EASA licence. That’s what happens in the United Arab Emirates (UAE) where most of the world’s Airbus A380 aircraft are based, for example.

So, the EU and the UK are entering a transition period during which UK aviation will continue to participate in the EASA systems. That means compliance with EU regulations while the longer-term EU-UK aviation relationship is worked out. Currently the UK Civil Aviation Authority (CAA) website has a statement[1]:

Engineers transferring their Part-66 licence to other Member States: While the CAA will continue to accept and process Part 66 transfer applications under existing EASA transfer arrangements until the UK leaves the EU, the procedures adopted by the receiving NAA and recognised validity of the licence during the transfer process may vary amongst EU member states. Applicants who require continuity of validity throughout the transfer process are therefore advised to apply at least 3 months prior to Exit Day and should also consider engaging with their intended receiving NAA to identify any potential issues.

Clearly, there are numerous combinations and permutations of situations that can arise for engineers working on aircraft. Given the history of licencing it’s highly likely that an arrangement will be worked out for next year, 2021. For now, each individual aircraft engineer needs to check their situation dependent on where they are working and on what aircraft they are working on, at what time.

This will put extra stress on global regulatory oversight activities too.

[1] https://info.caa.co.uk/brexit/licensed-engineers/

Brexit & Aviation 117

2020 is the year of the Rat. The Chinese New Year in starts on Saturday, 25^th January. This is going to be a pivotal year for those born in 1960, like myself. I hope that all the Rats out there are going to be as ambitious, creative and intelligent as astrologically predicted. Certainly, that would help with Brexit just days away.

Brexit Day is Friday, 31^st January. It’s like passing through a one-way valve and not so much a bell ringers paradise. Or even a reason for fanfares. It’s the date of entry into force of the EU-UK Withdrawal Agreement (WA), or at least it should be. Thus, the UK will leave the EU in a fully legal way. Nevertheless, EU law will continue to apply in the UK for the period of the WA. That is, that the UK will remain bound by EU treaties. Also, the EU will ask its partners to treat the UK as if it were still a Member State for all those existing treaties[1].

The biggest impact of the end of the month is that there will no longer be the possibility of revoking the Article 50 TEU[2]. From then on, the way back for the UK to re-join the EU is provided for in Article 49 TEU. In that foreseeable but unlikely case the UK would be viewed as an applicant State.

In addition to the above, from the 31^st the UK loses its institutional representation in the EU. So, no more British members of the European Parliament, or European Commissioners or European Council members. Interestingly, at the time of the signing of the Lisbon Treaty the EU had 27 Member States and now it’s returning to that number.

Outside the EU, will the UK be better placed to tackle the major challenges that all States face, including globalisation, climate change, energy security, terrorism and organised crime[3]? That’s the big open question. The UK will leave the EU on 31^st, but there remains a lot of complex negotiations to come. This is the start of the UK’s future relationship with the EU.

So, is there general happiness and contentment? No. In fact, businesses continue to be cautious and concerned. In particular, the aerospace industry has been alarmed by talk of major regulatory upsets[4]. What will the institutional framework be for the future? How will it be staffed and funded? Businesses would like to know where the UK Government intends to go next[5]. It remains difficult to plan if there’s only a scant idea of the intended destination. That said, Brexit is not bad for everyone. Germany has seen an increase in interest from British businesses.

[1] https://www.instituteforgovernment.org.uk/explainers/brexit-transition-period

[2] https://www.europarl.europa.eu/RegData/etudes/BRIE/2016/577971/EPRS_BRI(2016)577971_EN.pdf

[3] https://twitter.com/wef/status/1218937427936583681?s=20

[4] https://www.ft.com/content/a89dfdea-3d07-11ea-a01a-bae547046735

[5] https://www.iod.com/news-campaigns/news/articles/IoD-calls-on-Government-to-publish-Brexit-negotiating-objectives

Brexit & Aviation 116

On your marks, get set and go. The starting pistol hasn’t been fired yet, but the players are on their marks. It’s a 100-meter sprint. Or should I say a 109.361-yard sprint to the end of the year.

The EU27 Member States are having their preparatory discussions on their future relationship with the UK[1]. At the same time statements are drifting out of British Minister’s offices containing rhetoric more suited to an election campaign.

Croatia’s presidency of the Council of the EU[2] is up and running until 30 June 2020 when Germany takes over. The EU’s “Internal EU27 Task Force for Relations with the United Kingdom” has published slides that illustrate the likely situation after the 31^st January. They recognise that transport, including aviation will be a fundamental component of the EU-UK relationship. It’s clear that UK aviation operators will no longer have the same access rights as EU Member State operators.

Now, according to The Financial Times the British Chancellor is saying[3]: “There will not be alignment, we will not be a rule taker, we will not be in the Single Market and we will not be in the Customs Union — and we will do this by the end of the year.”

These words maybe for public consumption because to an extent they speak the obvious. One exception is the notion that the UK will not be a “rule taker”. Naturally, this can be interpreted in many ways, even in this year, when the existing Withdrawal Agreement becomes law. Because that agreement has the affect of taking European rules and making them UK rules.

In trading with large markets, like the EU and US there’s going to be the obligation to meet their standards. It seems obvious to say but that means having rules that are either taken from those parties or that are acceptable to those parties. Call that what you like but it is taking rules. Never in the past did the UK Parliament approve every single new or modified rule that the was part of compliance with an international agreement and it’s likely that will continue.

EU aviation rules are designed to be compliant with international standards and recommended practices. There is scope for the UK to deviate from the existing arrangements. The question should be asked, as to; why and what are the benefits in doing so?

Meanwhile, as the scene is set for the next step in these vital international negotiations, the daily news in the UK is far more trivial; a £500,000 crowd funding exercise for some big bongs in London is filling the airwaves and newspapers.

[1] https://ec.europa.eu/commission/sites/beta-political/files/seminar-20200115-transport_en.pdf

[2] https://eu2020.hr/

[3] https://www.ft.com/content/18ddc610-3940-11ea-a6d3-9a26f8c3cba4

Brexit & Aviation 109

Preposterous isn’t a big enough word to sum up what’s going on in respect of the UK Government’s approach to the UK Parliament. Having entirely messed-up during the special session on Saturday last, the UK Prime Minister (PM) has tried to ask the same question again of the House of Commons (HoC) and been sent packing. Therefore, it stands that the HoC has not approved the Withdrawal Agreement (WA) and has called for the PM to secure an extension under Article 50(3) of the Treaty on European Union until at least 31 January 2020 for the purpose of holding an early General Election (GE) before the end of the extension period. Will this happen? We have yet to see.

In conversation, I find that even amongst those who avidly follow the progress of Brexit there’s an incorrect notion. It’s that the WA represents a deal between the EU and UK that defines their future relationship. That’s not so. The WA can be described as a divorce settlement and thus needs to be binding. That said, the accompanying document, titled Political Declaration (PD), setting out the framework for the future relationship between the EU and the UK is not binding. The PD is essentially a starting point for the next even more complex and difficult negotiation.

Rushing these historic and complex texts through the legislative process is causing concern. There has been more than 3-years of ups and downs and backwards and forwards, but the final legal text has only just been put in front of Members of Parliament. The European Union (Withdrawal Agreement) Bill is not an easy read.

Industry continues to highlight the importance of avoiding a No Deal Brexit, but there’s some relief that the text on regulatory cooperation on aviation safety is positive[1]. The text is vague about close cooperation between the EU’s EASA and the UK’s Civil Aviation Authority (CAA) but at least they are both explicitly mentioned.

Today, high standards of aviation safety are achieved by having common standards and sharing technical expertise and experience. As the two parties separate there’s a considerable need to keep a close eye on new arrangements and any tendency to diverge for political reasons and not technical ones. Cooperation doesn’t just happen ad-hoc. It requires a dedicated effort and active mechanisms to make it work. Confidence building initiatives take time when different means are used to get to the same outcome.

[1] https://ec.europa.eu/commission/publications/revised-political-declaration_en

Brexit & Aviation 108

After a day of drama, Britain awakes this Sunday with no clear view of what happens next. The clock keeps ticking and, if deadlines mean anything, then the next one is 11 days away.

It’s true that under no circumstances was disentangling the UK from a 40 years relationship with the European Union (EU) going to be easy. Are we heading towards a new postponement? It seems highly likely regardless of the UK Prime Minister’s (PM) latest letter[1]. It seems that PM Johnson is taking advice from P G Wodehouse: “It is a good rule in life never to apologise. The right sort of people do not want apologies, and the wrong sort take a mean advantage of them.” We could argue about who’s right and who’s wrong but let’s look at what’s on the table instead.

One of the biggest changes that is evident in the new Withdrawal Agreement (WA) concerns the “level playing field”. That is that the binding commitments for the UK to maintain minimum standards in the areas of social and environmental policy, tax, competition and State aid have been removed from the WA. The detailed discussion has been put off to the post-Brexit EU-UK negotiating phases. A closer future relationship means more obligations and a looser relationship means less and this will be linked to the level of market access. A framework for the future relationship is set out in a new Political Declaration[2].

Looking at the House of Common (HoC) business for Monday, 21 October 2019, several motions for approval of Statutory Instruments (SIs) are to be agreed. The reality for Brexit is that much existing European regulation is being incorporated in UK law[3]. Many of the proposed changes are to align the text with the appropriate UK institutions as opposed to the European ones.

Therefore, whatever future changes there may be to the “level playing field” and this applies to aviation as much as anything, at least initially both EU and UK will be pretty much aligned. The political direction post-Brexit will greatly depend on the outcome of a pending UK General Election (GE). That must come given that the UK Government trying to do all this has no majority in the UK Parliament and a record of loosing votes.

We are in a fast-moving and unpredictable environment. It’s a good idea not to make too many knee-jerk reactions or draw too many conclusions. PM Johnson has, in a half-hearted manner applied for an extension to the Thursday, 31 October 2019 end date. We will soon see if this is granted by all the parties involved. Ongoing political and economic uncertainty may yet signal the end of the Brexit project. The genuine technical reality of the benefits of working together for the common good in Europe remains.

[1]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/840660/PM_to_Donald_Tusk_19_October_2019.pdf

[2] Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom;

[3] https://publications.parliament.uk/pa/cm201920/cmagenda/ob191021.htm#_idTextAnchor005

Brexit & Aviation 105

The title of this Government’s Brexit proposals could be called: I’m Sorry I Haven’t A Clue. But that title has been taken by a long-running BBC Radio comedy series. And I do mean long-running. The last series was number 71. If you listen to this clip of “The Uxbridge Dictionary[1]” it might mask the Brexit murk for a minute or two. By the way, Uxbridge is the Parliamentary Constituency of the Prime Minister.

Here’s a point to clarify. I keep seeing references to the global aviation regulator ICAO.

Now, as I have mentioned before, ICAO is the International Civil Aviation Organisation. It’s the organisations 75^th birthday this year and that’s good reason to celebrate. It brings together 193 of the world’s States. However, ICAO is not a “regulator”. It does not issue approvals, licences or certificates. It does not have enforcement powers, like a CAA. I was going to say that it does not investigate aviation accidents but, I believe it has in one or two special cases.

A key technical role of ICAO is to set Standards and Recommended Practices. From that the States develop their own framework of legislation that empowers their organisations, sometimes called Agencies or Authorities or Administrations or Directorates to do the regulatory work.

It must be like this given that there’s a great range of different legal systems across the globe. In fact, those who created ICAO recognised this reality from day one and it’s enshrined in the Convention on International Civil Aviation, also known as the Chicago Convention[2]. The Convention is explicit about the complete and exclusive sovereignty of contracting States. Although as I learned last week there’s one or two exceptions to this exclusivity.

The European Union (EU) is recognised as a regional organisation at ICAO. Nevertheless, each European State has, or shares a delegation at ICAO’s HQ in Montreal. When it comes to making policy for international civil aviation the EU Member States work together. Coordination is vital to make an impact inside a multinational and multicultural organisation like ICAO.

Yet, its unclear how Brexit will change this arrangement, or if it will change at all. The opportunity to work together on common interests is always possible. On issues, like climate change it’s highly likely that Europe and the US will have more in common than say; China, India and Russia.

Where difficulties are more likely are when technical standards in Europe and the US differ. Then the possibility of competition to set international standards might present awkward choices.

[1] https://www.bbc.co.uk/sounds/play/p00vm9vk

[2] https://www.icao.int/publications/pages/doc7300.aspx

Brexit & Aviation 102

UK Prime Minister (PM) Johnson’s Brexit meeting with the European Union’s Juncker was said to be “constructive” and contact between the two sides will now be stepped up. I must wonder with amassment at this summary given that there are only 44 days left on the clock. Whatever has been said, there’s been no change over the few days on the likelihood of the UK leaving the EU with or without a deal on 31 October. In probability terms it looks highly likely.

Meanwhile the PM insists he did not mislead the Queen over suspending Parliament. As of today, that questionable matter is in front of the highest Court in the land.

We are facing a situation where all the existing Agreements and Regulations derived from EU Treaties will fall on 31 October. Yes, a new Regulation does address basic contingency measure that will be available for a short period[1] after Brexit day but then it’s the land of the completely unknown.

The implications of Brexit for Britain’s aerospace and aviation sector are looked at by the Royal Aeronautical Society and it doesn’t make for happy reading[2]. Yet, Brexit supporters will continue to talk loudly of scaremongering and so called “project fear”.

Let me not paint a picture that everything in the UK is chaos and everything in the EU is fine and dandy. The hard facts are that we all have the same problems to confront. A recent exchange between the European Parliament (EP) and the Executive Director of the European Aviation Safety Agency (EASA) on aviation safety showed serious challenges for us all[3]. At least in Brussels, MEPs get to ask questions on aviation safety. Currently, with a suspended UK Parliament that’s not possible for UK MPs in the UK.

On another subject, commercially Brexit is looking like a bad dream. Thomas Cook has blamed Brexit uncertainty and the weather for lower bookings and people are now on alert over the airlines possible collapse[4].

If you are a Licensed Engineer and have an EASA Part-66 Licence issued by the UK Civil Aviation Authority (CAA), be sure to check the guidance on whether you will be eligible to work on EU Member State registered aircraft in the event of a No Deal Brexit.

Wouldn’t it be nice to have some good aviation news for a change? With the Brexit clock ticking to the point of 40 days and 40 nights maybe a change of biblical proportions is coming[5].

[1] Commission considers that this Regulation does not prejudge the nature of the future relationship with the United Kingdom in the area of aviation and that the exercise of competence in the Regulation is temporary and strictly limited to its period of validity.

[2] https://www.aerosociety.com/news/at-brexits-cliff-edge/

[3] http://www.europarl.europa.eu/committees/en/tran/home.html

[4] https://www.thetimes.co.uk/article/42d537c0-d719-11e9-b098-ed106f659f8a

[5] Jesus fasted for 40 days and nights in the Judaean Desert. During this time, Satan came to him and tried to tempt him.

Aviation & Brexit 94

Preparations for the UK’s Brexit continue but these times cannot be “normal”. New Conservative UK Prime Minister Johnson insists that the UK will leave the EU on the 31 October 2019 “do or die”. Bellicose politicians can be inclined to use outspoken language but in this case it’s more than even the House of Commons is accustomed too.

A sharp divergence for all to see. There’s the pragmatic and rational approach where judicious arrangements are made around an overall deal between the UK and EU. This is not exactly a win-win but it’s to get as close to it as possible in the current climate. At the same time, there’s the reckless push to sever relationships with only the minimum of temporary provisions at the lowest possible default conditions. This really is the lose-lose for both UK and EU[1].

Sitting in the South East of England, as I do, I see there’s a myopic element to this foolish “do or die” attitude. It’s a political approach that’s taken to satisfy a domestic audience as if the rest of the world doesn’t exist. However, the rest of the world can see what is going on between UK and EU and most reports aren’t complementary.

The next European Council[2] summit is 14 days before the UK is due to leave the EU. The agenda for that meeting in Brussels has yet to be published but Brexit is surely going to be on the list. On 19 October there’s to be big protest march through the streets of London. Organised by the European Movement and the People’s Vote[3] campaign this is expected to be a major historic event. So, a full 3-years after the 2016 UK referendum the final half of 2019 is going to be a rough ride for all involved and beyond.

Aviation companies, licenced people and regulators have been preparing for Brexit from the moment the UK Prime Minister’s letter kicked-off the Article 50 process. The stated assumption was that a UK-EU deal would be struck, and a reasonable degree of continuity would be maintained. In an inconsistent fashion UK Prime Minister Johnson has recently said that the chances of a No Deal Brexit are a million to one. This doesn’t seem credible given that no negotiations are on-going.

What does anyone believe in such a strange situation? With days to go, I believe it’s wise to plan for the worst-case scenario, of a No Deal Brexit with animosity on both sides. Services will be vulnerable to interruption. Transactions will be more complex. The regulatory framework will be uncertain. It’s highly likely some civil aircraft will be grounded because they can’t get the right parts with the right paperwork at the right time.

Post Brexit the UK will be viewed as a “Third Country” in respect of European legislation. A huge amount of work will be needed to re-build relationships.

[1] https://adage.com/article/digitalnext/lose-lose-beats-win-win/310805

[2] https://www.consilium.europa.eu/en/meetings/european-council/2019/10/17-18/

[3] https://www.peoples-vote.uk/

Aviation & Brexit 88

Tuesday, 23 July draws closer and the naming of a new UK Conservative Party leader and subsequently a new UK Prime Minister (PM). It seems increasingly likely that the Conservative Party is going through the motions with only one outcome on the table: Mr Johnson gets selected and then pushes, in whatever ways possible, to get the UK to leave the European Union (EU) by Halloween this year. Little, if anything is new as repetitious and shallow arguments get thrown around like confetti for the bride of Frankenstein.

In the early months of this year there was a flurry of detailed articles written about how aviation would be affected if the UK left the EU with or without a deal. The common expectation was that the transition would start at the end of March. Since then a few have taken the time to update their positions but most of what was written remains motionlessness. Without a sense of political direction advancing policy positions is a precarious activity. However, a high-level desire to see liberal aviation market access arrangements continue does seem to exit within both UK and EU. To that extent, a No-Deal Brexit outcome represents a big step backwards for all Europeans.

Although it’s not relevant to international air travel, it’s notable that British media interviews continue to focus on The General Agreement on Tariffs and Trade (GATT). The GATT was the precursor to the World Trade Organisation (WTO). Article 24 is being cited as a universal solution to objections to a No-Deal Brexit. However, this proposition has been debunked multiple times and doesn’t stand scrutiny[1].

[1] https://fullfact.org/europe/gatt-nine-lives-article-24-again/

In recent weeks, talk of international companies planning relocate their operations to other parts of Europe[1] has not phased the populist proponents of Brexit. Thus, it’s vital for businesses to plan for a No-Deal Brexit where only temporary provisions will exist between the UK and EU. However, reports show that the UK is still not prepared for a No-Deal Brexit in October.

For aircraft design and maintenance and pilots and cabin crew, there may be no sustained mutual recognition between the EU and the UK for aviation licences, approvals and certificates. In addition, the UK will no longer benefit from EU Bilateral Aviation Safety Agreements (BASAs).

Mounting concerns are being voiced about the prospect of a No-Deal Brexit and the subsequent impact on aviation and the traveling public. To date, Conservative and Labour Party leaders would rather sweep such concerns under the carpet.

The online help from the UK Government, the European Commission (EC) and on the CAA and EASA Brexit microsites remain the best available information.

[1] https://www.chathamhouse.org/expert/comment/japanese-warning-over-fallout-hard-brexit-not-idle-threat

Aviation & Brexit 86

A new Conservative Party leader should be named on Tuesday, 23 July and then appointed UK Prime Minister (PM) one day later. That’s only if the Government’s majority in the UK Parliament hasn’t crumbled. Then the House of Commons (HoC) summer recess begins one day after[1]. The HoC returns on Tuesday, 3 September just before the political Party conference season gets started. So, the idea that there’s time to apply Article 50 and negotiate a new deal with the European Union (EU) before the 31 October exit day is pure fantasy. If there was unity, harmony and a convergence of positions then a small chance exists. None of those three words can reasonably be used to describe the situation.

A lot of political talk still centres around the World Trade Organisation (WTO) and peculiar notions that it might be easier to get a deal with over 160 Countries than it is to deal with 27 Countries. The WTO framework doesn’t cover key aspects of the UK economy, like: Aviation, Medicine, Export Licencing and Digital Data. Often expressed as a sign of more “Unicorns”, frustration continues to grow amongst those who have gained a smattering of knowledge after 3-years of this merry-go-around. As a result of all the nonsense spoken, there’s little doubt that Brexit is damaging the UK’s reputation as a good place to do business.

If Boris Johnson enters Number 10, Downing Street as PM then he could discard his firm promise to leave the EU, come what may on 31 October only then to see his Government fall. Thus, the strong likelihood of a “No Deal” outcome with no implementation/transition period is looming. Without a formal withdrawal agreement there’s only the temporary contingency measures that both the EU and UK[2] have published so far. I’ve written about this in my Blog 61, 71 and 74.

One area of significance is how this event will impact aerospace Design Organisations (DO) who are primarily based in the UK. Approvals issued by the European Aviation Safety Agency (EASA) to a UK DO, before the exit date will remain valid for 9 months from the day after the 31 October. To provide continuity, UK DO’s are being encouraged to apply to the UK Civil Aviation Authority (CAA)[3] for a national approval in advance of the exit day. One small silver lining is that the UK CAA will not charge an up-front fee for issuing these approvals, provided the scope is the same as the EASA approval and no technical investigation is required. After that a fee is changed for surveillance of the DO approval under a published scheme of charges.

This is one subject area amongst a large number, across many industries. Yes, Brexit is a magnificent way to create extra bureaucracy and we will all end up paying for it in the long run.

[1] https://www.parliament.uk/about/faqs/house-of-commons-faqs/business-faq-page/recess-dates/

[2] https://www.gov.uk/guidance/prepare-to-work-and-operate-in-the-european-aviation-sector-after-brexit

[3] https://info.caa.co.uk/eu-exit/aerospace-design-organisations/