Regulation – Page 23 – John Vincent

Brexit & Aviation 76

History gives us a context within which to set current events. Rooting through some boxes, I came across a copy a UK CAA Safety Regulation Group in-house publication called “Aviation Standard” dated March 1991. I kept it because it had a picture of me as a newly joined young airworthiness surveyor. At the time the aviation industry was suffering the effects of recession and the Gulf War. Pressure was on to keep fees and charges low but not to let up on essential safety activities.

What’s interesting is that 28 years ago the news was that the Joint Aviation Authorities (JAA) Headquarters was to move from London Gatwick to Hoofddorp, near Amsterdam Schiphol. The 18 JAA Countries had decided to move from sharing office space with the UK CAA at London Gatwick to a new building in the Netherlands.

The staff newspaper had a large page describing the work of the CAA’s Systems and Equipment Department. At that time, the department that I joined had 22 specialist design surveyors and supporting admin staff. There were 5 technical specialist sections, addressing hydromechanical, cabin safety and environmental systems, power plant installation and fuel systems, and electrical and avionics. This department covered all types of aircraft large and small, helicopters, airships and even hovercraft.

Contrary to the belief of some people, The UK has played a major part in shaping how aviation safety regulation developed in Europe. What we have is as the result of concerted efforts over more than a generation. It saddens me greatly to think that we are in the process of trying to dismantle that achievement. An achievement that is recognised worldwide.

Back to the current challenge of Brexit and how it’s being exacerbated by political indecision and pure folly. New Aviation Safety legislation has passed into European law ready to come into force if there’s a No-Deal Brexit. The effects of this law are to create a breathing space so that companies can re-establish the approvals they need to operate.

Also, a new UK Aviation Safety Statutory Instrument (SI) was passed by both the House of Commons and the House of Lords and published as UK law.

The UK industry group; ADS has published a useful summary that is available on their website[1]. No doubt this will be updated as we discover if the planned leaving date of either 12 April 2019 or 22 May 2019 is to happen, or Brexit gets cancelled or delayed again. Whatever UK Parliamentarian do it doesn’t seem the No-Deal Brexit outcome has yet been killed off for sure.

[1] https://www.adsgroup.org.uk/blog/no-deal-brexit-and-the-state-of-preparatory-aviation-safety-legislation/

Brexit & Aviation 74

It’s a good question to ask. Will cooperation, coordination and convergence end with Brexit?[1]

An instant answer might spring to mind dependent upon your position with respect to Brexit. Rather let’s look at the subject in more depth. In my experience aviation safety regulation operates on 3-levels. Each level is essential even though, from time to time, one may think itself superior to another. Between the 3-levels there are dependencies.

One is political. No surprise. Lawmakers are responsible for the high-level policy and the framework of law necessary to make regulation possible.
Another level is administrative. As is often said: the devil is in the detail. Well crafted laws need to be drafted by creative people who know enough about both legislative and technical matters.
Of my 3-levels, the last one I mention, but it could have been the first, is the technical Without technically competent expertise the whole enterprise can be built on sand.

So, when asking what could happen to cooperation, coordination and convergence, I must address all 3. There’s some freedom of movement but all the above need to comply with the standards set down internationally by ICAO.

In the event of a No Deal Brexit outcome the prospect of major disruption is real and should not be underestimated. To my 3-levels there will be a shock to the system. At the political level mutual trust will have to be re-established. At the administrative level new processes or procedures maybe put in place. At the technical level it’s less clear what new working arrangements may be needed.

Whatever happens with Brexit the laws of aerodynamics will not change. The factors that cause accidents will not change either. And airworthiness directives will continue to be issued.

Making a regulatory system work efficiently and effectively doesn’t happen overnight. Prolonged efforts must be applied and sustained. One or two big events can upset priorities very quickly.

Back to Brexit. Whatever those who sold the separation may have said, Brexit is sowing the seeds of disharmony. Once the decoupling of plans has started so the drivers for action change too.

No surprise but this is significant in respect of the UK. Historically, in the drafting of law and associated instruments (advice, guidance, notices and so on) there’s a tendency to reserve some arbitrary powers for those implementing the text[1]. EU law tends to be structured in a hierarchical manner with high-level objectives at the top and considerable detail at the lower levels.

In the last 25 years of European aviation regulatory harmonisation these two approaches have been blended. When it works, people get the best of both worlds. Unfortunately, Brexit is a divergence that has lack of certainly at its heart. Several free marketers see a more arbitrary approach as a way of getting around the public interest whenever it suits them to do so. Thus, cooperation, coordination and convergence between the EU and UK may not end with a big bang but a slow drift.

[1] In the early 90s, for applicants for approval, the need to “satisfy” a UK CAA Surveyor in the interpretation of notices and requirements was often wide ranging.

[1] https://www.mro-network.com/maintenance-repair-overhaul/

Licences

There is a buzz in the media about commercial pilots’ licences.

It’s almost as well to start with the question: why do pilots need a licence? The roots of pilot licencing go to the earliest days of flying. Quickly it was realised that specific attitudes, skills and knowledge were essential to be able to fly safely. To start with licences were not mandatory. That changed markedly when civil aviation became commercial. The need for mandatory licencing was well established in the 1940s when the International Civil Aviation Organisation (ICAO) came into being.

Today, Article 32 “Licenses of personnel” of the Chicago Convention is clear:

a) The pilot of every aircraft and the other members of the operating crew of every aircraft engaged in international navigation shall be provided with certificates of competency and licenses issued or rendered valid by the State in which the aircraft is registered.
b) Each contracting State reserves the right to refuse to recognize, for the purpose of flight above its own territory, certificates of competency and licenses granted to any of its nationals by another contracting State.

Today, the EU Basic Regulation and its implementing rules apply in the UK. Today, we have a harmonised system with mutual recognition in 32 European States[1]. We respect and recognise each other’s pilot licences.

Tomorrow, post March 31, 2019, the EU Basic Regulation will not apply in the UK[2]. Tomorrow, UK law may be a straightforward copy of the exiting EU law. At that time mutual recognition is not guaranteed unless an agreement is in place.

So, EU will need to decide – will it recognise a National licence from a “third country” that uses the “same” rules? Will any recognition be dependent upon rules continuing to be harmonised? What level of standardization auditing will maintain confidence that the system works?

I can’t answer these questions (yet).

POST: It’s 3-years on from this posting. A licencing imbalance has prevailed during that time. As of 1 January 2023, the UK will cease to recognise EASA-issued licences and certificates for the operation of UK (G-registered) aircraft. Whatever happened to hopes for mutual recognition? Pilot licensing | BALPA

[1] Licences issued by the National Aviation Authorities (NAAs) according to a set of common rules applied by the European Aviation Safety Agency, known as EASA – Flight Crew Licensing (EASA-FCL).

[2] https://ec.europa.eu/transport/sites/transport/files/legislation/brexit-notice-to-stakeholders-aviation-safety.pdf