Regulation – Page 21 – John Vincent

Flight, Risk & Reflections 4.

It’s under 100 days to go to the final, final, final Brexit exit. This Autumn flying faces the quadruple threats of rising Coronavirus numbers, diminishing Government support, implementation of erratic polices and the possibility of a disorderly end to the EU-UK Withdrawal Agreement transition period. The shining light is that everyone knew that this was coming, and adding up all the turmoil of the last 4-years it has at least given industry and institutions time to come to terms with the situation and prepare accordingly. Yes, there are a bucket load of unknowns.

On the plus side as soon as we get past 1 January 2021 there will be less constraints for either party. The European Union (EU) will be able to go ahead with actions once blocked by the UK. Vice-versa the UK will be able to develop its own unique set of policies, rules and regulations.

If both parties don’t lose their basic common sense there ought to be a good degree of continuing communication, collaboration and cooperation.

I agree with the AIRBUS CEO: “Aviation, an irreplaceable force for good in the world, is today at risk as borders remain closed and influential voices in Europe call for permanent curbs on flying.”

Recently the British Business General Aviation Association (BBGA) hosted a webinar [1]dedicated to all matters Brexit. Good of them to make it available on-line to non-members.

In addition, there’s a “Readiness for Brexit[2]” update from Tim Johnson, Strategy and Policy Director UK CAA now on-line. This is about the CAA’s readiness for what’s going to happen at the end of the transition period. There’s a promise of continuity, at least for a while[3].

It saddens me greatly that the UK will no longer be part of the EU Aviation Safety Agency (EASA) system but that’s now a matter of fact. Who knows what the future may bring? It’s perfectly possible that the UK will be back in the system in the next decade.

There’s a lot of reasons why it’s going to be difficult for the UK to act entirely alone. For efficient and sustainable air traffic management the European Single European Sky (SES) project will continue to advance. It would be better for all if the UK was part of that advancement.

We need to concentrate on dealing with the present situation and maximising positive working with Europe. There are many areas of common interest. We remain a great European Country.

[1] https://www.avm-mag.com/bbga-to-conduct-brexit-info-webinar/

[2] https://www.caa.co.uk/Blog-Posts/Readiness-for-Brexit/

[3] https://publicapps.caa.co.uk/docs/33/UK%20Safety%20Regulation%20outside%20EASA%20(CAP1911)%20SEP%202020.pdf

Brexit, Aviation and the Withdrawal 11

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

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

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

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

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

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

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

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

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

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

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

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

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

Brexit, Aviation and the Withdrawal 7

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

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

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

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

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

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

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

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

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

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

Brexit, Aviation and the Withdrawal 2

Watching UK Prime Minister Johnson’s speech[1], made in Old Royal Naval College at Greenwich yesterday, there’s no doubt the setting was impressive. The words were not so impressive. In fact, they were downright confusing. Phrases like: “Free trade is the only certain way of uniting people in the bonds of peace” are peculiar given that the UK has just left one of the world’s most successful projects for free trade and peace.

There were jaunty references to being like Canada, or Australia or something akin to these two Commonwealth States. The vision painted by Johnson had none of the precision or artistry of the walls in the recently restored Painted Hall[2]. Even so, there was an echoing theme that the UK wouldn’t follow any rules other than its own.

The reference to a country that’s bigger in physical size but smaller in population and that has a larger neighbour to the south, is interesting from an aviation perspective. It’s true that Canada has its own aviation regulatory structure. It hosts the international organisation that is responsible for aviation standards, namely ICAO. In addition, it has major aerospace design, manufacturing and maintenance companies as well as international operators.

However, Canada’s free trade agreement (CETA) with the European Union (EU) doesn’t eliminate all tariffs and quotas. Built over many years, for aviation there is a level of mutual recognition between Canada and the EU.

In 2011, an agreement on civil aviation safety between the EU and Canada entered into force[3]. Part of this agreement includes detailed working arrangements. This international cooperation was agreed when both sides demonstrated to the other that they had the regulatory competence and capacity to satisfy each other’s needs. The work is by no means finished.

So, yes perhaps it is the case that carbon copy rules, or complete harmonisation between parties is not the only route to mutual recognition. Usually, regulatory differences exist not because parties want them to exist for their own sake but that each party has a different set of experiences. In design certification, the reason for a great number of rules and standards can be traced back to accidents and incidents. Not everyone has had the same history or operates in the same environment (social, political, economic and so on). Regulatory maturity is only established over decades. Then regulators can assess each other’s systems and decide that arrangements, like accepting each other’s certificates can be done safely. What I’ve described doesn’t happen overnight. A conservative, with a small “c”, approach is taken to aviation safety because the consequences of getting it wrong can be tragic.

[1] https://twitter.com/10DowningStreet/status/1224435858985472000?s=20

[2] https://ornc.org/our-story/royal-hospital/painted-hall/

[3] https://www.easa.europa.eu/document-library/bilateral-agreements/eu-canada

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