Aviation – Page 17 – John Vincent

Brexit & Aviation 24

Like it or not, the holiday season will end. Facts are incontrovertible. The UK and EU have just a few months to finish a Withdrawal Agreement. This is to allow for scrutiny and ratification in both the UK and the EU’s 27 Member States. A Withdrawal Agreement must be signed in October and that’s just days away.

Let’s look at one more civil aviation issue. The continuing airworthiness of a civil aircraft is dependent on the exchange of information between authorities and organisations across the globe. This is flow of information is practically improved if working arrangements or bilateral agreements exist between Countries. These are built on mutual interest, trust and a long-established familiarity with each other’s regulatory systems.

Yes, the duties of Countries under their obligations as signatories of the Convention on International Civil Aviation, dated 7th December 1944 (known as the “Chicago Convention”) exist but these are the basics and even then, those basics are often given scant regard.

In the 1970s, some European civil aviation authorities started to co-operate to produce common “Joint Airworthiness Requirements.” Even before the 1990 Cyprus arrangement[1] in Europe, both the US and European authorities had been working to harmonise rules and reduce duplication of regulatory activities.

Today, a mature EU-US bilateral is in place. So, if a British manufacture wishes to export an aviation product to the US it can do so with relative ease. As per Subpart G 21.A.163 of Commission Regulation 748/2012, the holder of a production organisation approval may issue authorised release certificates (EASA Form 1) without further showing. That EASA Form 1 is then recognised in the US.

The Treaty’s Article 50 clock stops at the end of March 2019. It’s reasonable to ask the question; what Authorised Release Certificate will be used in the UK after that date and will it be recognised?

Anyone know?

All the loud yah-boo politics, so loved of Westminster, doesn’t offer an answer.

NOTE 1: The EASA Authorised Release Certificate is known as the EASA Form 1.

NOTE 2: The FAA Authorised Release Certificate is known as the FAA Form 8130 -3, Airworthiness Approval Tag^[2]^.

[1] ARRANGEMENTS CONCERNING THE DEVELOPMENT, THE ACCEPTANCE AND THE IMPLEMENTATION OF JOINT AVIATION REQUIREMENTS

[2] Reference: FAA Order 8130.21H—Published August 1, 2013, Effective February 1, 2014.

Brexit & Aviation 23

Hearing hard core Brexiters herald statements from IAG S.A.[1] about working though Brexit is strange to say the least. By the way, if you’ve never heard of them the International Airlines Group was created in 2011, is one of the world’s largest airline groups and includes British Airways. It’s a Spanish registered company with shares traded on the London and Spanish Stock Exchanges. IAG operational headquarters is in London.

At the point of the 2016 UK referendum IAG shares took a hit. Ever since then there has been a consistent recovery in their position. Brexit, or no Brexit they are well placed on both sides of the fence. Today, their airlines have Air Operator Certificates (AOCs)[2] in the EU. After the end of March next year its likely those AOCs will remain unchanged. The basis for their UK operators validity will shift from European Regulation to National Legislation.

Despite the high level of integration of the European aviation market place there is no single European registry of aircraft. Each ICAO Contracting State has its own aircraft registry.

However, to fly into the EU all non-EU aeroplane operators must have a Third Country Operators (TCO) authorisation[3]. This is a way of ensuring that non-EU aeroplane operators are compliant with all applicable technical standards of the Annexes to the Chicago Convention.

In the EU the authorities undertake ramp inspections of aeroplanes in operation.

Naturally, after the end of March next year aeroplane operators who transition from being EU operators to non-EU aeroplane operators will need a TCO authorisation. In theory, this should be an administrative matter since the transitioning operators already meet the applicable standards.

The TCO authorisation process can require that an audit be performed at the operational premises of the aeroplane operator. This is one of the tasks undertaken by the European Agency EASA.

It’s worth noting that the TCO only considers the safety-related part of foreign operator assessment, whereas operating permits (commercial traffic rights) are issued by individual EU Member States. In many Brexit articles these often a confusion between safety related rules and commercial related rules. It’s generally the case that operating permits are not granted unless the TCO is in place first.

So, far from the Brexiters cries of: “take back control” the result of all this is that our interdependence across Europe changes but remains. And for very good reasons too.

[1] https://www.londonstockexchange.com/exchange/prices-and-markets/stocks/summary/company-summary/ES0177542018GBGBXSET1.html

[2] https://www.skybrary.aero/index.php/Air_Operator_Certificate_(AOC)

[3] Commission Regulation (EU) No 452/2014 (the ‘TCO Regulation’)

Brexit & Aviation 22

The politics of the day would seem to be “divide and rule”. Not an entirely unknown approach and, when conducted in the open, can make you look silly if it doesn’t work.

There are three parts to the European Union that need to be convinced that the Withdrawal Agreement they see on 18 October is one they wish to accept. The three are: the European Commission, the Council and the Parliament. The most powerful is clearly the Member States as they sit in the Council of the European Union[1]. This week the UK is attempting to influence the Council through influencing Member States that it thinks could be persuaded to be sympathetic to the UK Government’s White Paper proposals.

The presidency of the Council rotates among the EU Member States every 6 months. The Austrian presidency of the Council runs from 1 July to 31 December 2018[2]. That explains why Mrs May has been in Austria. Tonight’s news would suggest that trip isn’t going all that well. Austrian chancellor Sebastian Kurz has told Mrs May it’s “important to avoid a hard Brexit”.

Romania has the Council presidency from January to June next year. They are the ones who may have to wave the UK goodbye or not as the case maybe.

If there is “no deal” between the EU and the UK there is no automatic fall-back position for the aviation sector. It will be a unique situation where the EU Member States continue to apply all the existing rules and regulations and a “new” neighbouring State becomes unpredictable. The Brexiteer lobby entirely misleads the public when saying: “it will all be alright on the night.”

As the UK leaves the EU and becomes a “third country” it will cease to be part of the fully-liberalised EU aviation market. The UK can’t fall back on old bilateral agreements it had with the US and other EU countries since these were superseded and are obsolete. Their restoration is extremely unlikely.

As a contingency, a number UK operators and businesses are expanding or setting-up new bases within the EU. This could work for them, but they’ll have to show that a majority of the ownership of their shares is in the EU.

Naturally, simple goodwill could sort much of this out at the last minute. However, goodwill will be in short supply if there is no successful conclusion of the Withdrawal Agreement. Even with this essential transition agreement the outcome is a standstill until the end of 2020.

The story the Brexiteers are telling in public is crazy. They say: If there is “no deal”, there will be no catastrophe. It’s all this so called: “project fear”. But if there is a catastrophe it’s not our fault, it’s everyone else’s fault. They are already allocating blame for an event that is avoidable.

[1] https://europa.eu/european-union/about-eu/institutions-bodies/council-eu_en

[2] https://www.eu2018.at/

Brexit & Aviation 21

Maybe the next one of these articles I write should be split into two parts; one for the political and one for the technical. There does seem to be continuing divergence between the two. The political environment is as volatile as ever with growing uncertainty surrounding the possibility of a “no deal” situation. Stories of contingency planning have delighted the media as we are told food and pharmaceuticals are being stockpiled. At the same time the Government assures us that we are making good progress in the UK-EU negotiation. Parliament returns on Tuesday, 4 September, so I guess the next month may be quieter. Perhaps the sharks off the Cornish coast will get all the headlines during the summer.

Technical developments are following that well-loved tee shirt slogan: “keep clam and carry on”. This week another key document has been published, namely: Legislating for the Withdrawal Agreement between the United Kingdom and the European Union[1].

We are told that the UK and the EU have agreed that the UK’s exit will be followed by a time-limited implementation period that will last from the moment of exit until 31 December 2020.

It’s good to see in the document mentioned above there is a section on participation in EU institutions, agencies and bodies. It says that; guidance is being worked up on the consistent interpretation and application of the criteria for UK participation in EU bodies during the implementation period. So, basically there may be some stability until 31 December 2020 but after that no one knows.

I’m taking it as read that this includes the UK membership of EASA. The paper goes on to say that these arrangements are unlikely to require any provision in the Bill. That is the UK Bill introducing the legislation for the final Withdrawal Agreement. That does strike me as strange given that the UK will go from being a Member State to a “third country” in respect of EU legislation.

The paper recognises that the UK participates in several international agreements because of being a Member State. That includes the aviation bilateral agreements. At the European Council meeting in March, there was agreement that the UK is to be treated as a Member State for the purposes of international agreements during the implementation period. Parties to the aviation agreements will be notified of this approach by the EU. This is important. Let’s hope the parties concerned agree too.

The last line of the 38-page document says that once the Withdrawal Agreement has been ratified by the UK and concluded by the EU it will enter into force at 11pm on 29 March 2019. The clock is ticking, as they say.

[1] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/728757/6.4737_Cm9674_Legislating_for_the_withdrawl_agreement_FINAL_230718_v3a_WEB_PM.pdf

Brexit & Aviation 19

It’s that week. Every two-years the world of aviation flocks to a small-town West of London. Matched only by Dubai and Paris is an air show where visitors from all over the world congregate to talk about every aspect of civil and military flying. Visions of the future and the latest products from the major manufacturers all fight for the attention at Farnborough.

This year is different. In 2020, the Farnborough Air Show maybe taking place in a non-EU State. The last time that happened was in Farnborough in September 1972 [1]. Then, knowing the UK was going to enter the EEC the show was opened to European companies.

I was 12-years old at the time. It’s fascinating to see the Rolls-Royce powered Lockheed Tri-Star as a “new” aircraft. My introduction to aviation took place further West. I distinctly remember being taken to the annual Royal Naval Air Station Yeovilton Air Day around that age.

So, what of aerospace in a post-Brexit Britain? One thing is for certain; the Air Show organisers will not be closing the show to foreign aircraft or only others who use British parts. Very few other things are certain.

At the same time, as the Air Show next week the negotiations between the UK and EU will resume in Brussels. This time with a new British Brexit Minister and with a live UK White Paper on the table. This is positive news. However, to make the progress that the travelling public and aviation industry need the negotiators are going to have to move at supersonic speed.

It’s notable from the newsreel video of 1972 the high level of aircraft noise and emissions. That’s an issue that has changed considerably over more than 40 years. What was then the; “white heat of technology[2]” is, now totally unacceptable to the public.

That subject should be an area of focus for the negotiators. The European environment is a common area of interest. In civil aviation, for example, there’s no point in the UK and EU having different rules and regulations for aircraft noise and emissions. Agreement on this subject should be sewn-up quickly and simply.

Addressing the global environment will be more than a few exhibits at the Farnborough Air Show. The “electrification” of aviation is moving at great pace and represents a future market-place worth billion. To get from A to B, well-funded research projects and flying prototypes are going to be essential. This is another area of focus for the negotiators. Continued European cooperation on civil aviation research funding will be the way to guarantee a place in the future.

[1] http://www.aparchive.com/metadata/youtube/bed15cead7354e0097b5001925cc0d65

[2] https://www.theguardian.com/science/political-science/2013/sep/19/harold-wilson-white-heat-technology-speech

Brexit & Aviation 18

More than 2-years on the clock but here it is in print. The long-awaited UK Government White Paper[1] has been released. The UK Government’s regulatory vision includes: “participation by the UK in those EU agencies that provide authorisations for goods in highly regulated sectors – namely the European Chemicals Agency, the European Aviation Safety Agency, and the European Medicines Agency – accepting the rules of these agencies and contributing to their costs, under new arrangements that recognise the UK will not be a Member State”.

Later, there’s more detail where the document says; The UK would seek: “a. for EASA, becoming a third country member via the established route under Article 66 of the EASA basic regulation, as Switzerland has.”

Under the exiting Article 66, EASA is open to the participation of European third countries. This provision becomes Article 129 in the new Basic Regulation[2]. Therefore, EASA can establish working arrangements with the competent authority (UK CAA) of a European third country (UK).

In addition, the new Article 129 refers to the new Article 90 paragraph 2 which says: Those working arrangements shall not create legal obligations incumbent on the Union and its Member States. That might be problematic considering the proposed mechanisms for resolving disputes further on in the White Paper.

The wish to be a part of EASA is repeated further on, as “the UK will seek participation in EASA. In addition to ensuring that manufacturers should only need to undergo one series of tests in either market, this would also support collective work on aviation safety, reducing regulatory barriers for businesses and ensuring continued high standards for safety across Europe.”

Then there’s a part about the ways and means: “through a Governing Body at leader and ministerial level; through a Joint Committee, including sub-committees where relevant, at a technical level; through formal consultation between experts on regulatory issues and legislative changes; and through exchanges between the UK Parliament and the European Parliament.”

Finally: “The nature and structure of the UK’s participation will vary depending on the EU body or agency in question. In some cases, there may be an appropriate precedent for third country involvement, as in the case of Switzerland’s participation in the European Aviation Safety Agency (EASA)”.

Twice the relationship Switzerland has with the EU is referred to as a preferred model. This does have a logic to it given that both Switzerland and UK have aeronautical manufacturing industry. It is my understanding that the Swiss have more than a simple working arrangement.

A new “Joint Committee” is the proposed mechanisms for resolving disputes. Again, it has a logic to it in that there will need to be an EU-UK forum for discussions that do not concern other Member States. That said, it would seem to be a means to avoid the direct applicability of any ECJ rulings.

That might be problematic considering the binding nature they would have on one side of the table but not on the other. There’s a challenge for enforcement where the two sides disagree.

The UK Government White Paper does not propose a system of mutual recognition for aviation safety regulation. It continues with common European rules in the field of civil aviation. This capitalises on the significant investment the UK made in helping to build the European system, but it does come with issues yet to be addressed.

[1] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/724982/The_future_relationship_between_the_United_Kingdom_and_the_European_Union_WEB_VERSION.pdf

[2] http://data.consilium.europa.eu/doc/document/PE-2-2018-INIT/en/pdf

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 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