I am in two minds. When I see the words: “in so far as practicable” I can think; great, a degree of flexibility. On another occasions when I see the self-same words I think; that’s too vague and indistinct. It can easily circumvent more strict language.
Practicable is a perfectly useful word. The idea that it’s practical to do something and likely to succeed can be a matter of reasoned judgement. However, there lies the crux of the problem. It’s the subjective of that judgement, as to what’s practical and will it succeed, that becomes the possible difficulty.
If there’s a clause in a group’s constitution or working arrangements that says: “in so far as practicable” then it can become open season for someone to avoid a commitment or go their own way. That can be to shoot a big hole in a set of agreed expectations.
A lot depends on where the burden of proof sits. In other words, I may assert that something is not practicable but is it then for someone else to prove me wrong? Or do I have to provide the necessary proof?
There are elements of degree here too. If the assumption is that a judgement can be a snap judgement that’s one thing. However, there may be an assumption that a judgment is based on a rigorous level of analysis and reasoning.
The term “in so far as practicable” is most useful when applied thoughtfully and with honest intent. That the person applying this caveat would work hard to undertake whatever obligation was written and only as a fall back, having been unable to meet an obligation, revert to the use of these words.
Context and circumstances weigh heavily on what is practicable. An easy task on a sunny day can be a nightmare in a thunderstorm. Some legal clauses go as far as “insofar as is reasonably practicable in the circumstances”.
I guess I’m coming around to the wish that the “ALARP” concept (short for “as low as reasonably practicable”) would be sparingly used. ALARP weighs risk mitigation, elimination or reduction against time, trouble, and money. That’s a balancing act where there’s no perfect answer.
ALARP is a basic concept in health and safety law, but it hasn’t caught on in aviation or at least safety of flight. It’s not that aviation is blind to the fact that flight safety can be a priority, but it will never receive infinite time, trouble, and money.
It’s more that with flight there’s always a choice. It’s a “go – no go” choice. If adequate risk mitigation, elimination or reduction is not available the reasonable choice is to stay on the ground.
Jacob Rees-Mogg resigned on St Crispin’s Day. Shakespeare’s imagination of glory and immortality in Henry V no doubt on his strange mind. Well, let’s say we are not outnumbered by the French. We are outnumbered by the ideology of persistent right-wing Parliamentarians.
The bill in Mogg’s name got a reading in the UK Parliament last night. The so called Orwellian “Brexit Freedoms Bill” would make any authoritarian Government in the world simile.
This is a dreadful bill. To imagine British legislators are so superior that they can replace, fairly, effectively and honestly, so much complex law in so short a time is a simple con. Much of the legislative texts facing replacement took decades of research, investigation and proving to take shape. A great many of these laws of EU origin were driven by the UK.
Ministers attempting to claim to the UK Parliament that the EU retained law bill will allow ambitious standards to be maintained sounds like the worst sales pitch of a second-hand car salesman. Consumer, employment, and environmental regulation is not a burden. It’s an asset. Widespread outcry is justified. #AttackOnNature
Duplications is a serious concern too. For organisations trading with the EU and beyond, having to met two sets of different laws will add considerable additional costs.
This bill would tie-up civil servants for a long-time and oversight of what happens wouldn’t be of the quality needed.
The former Business Secretaries were driven by Brexit dogma. The new Business Secretary needs to stop and think again. There’s no profit in trashing what works.
A serious debate about individual laws is the job of Parliament. Sweeping away swaths of good law because it’s a prejudice of the secretive European Research Group (ERG) is sheer madness. Parliamentarians should work for the people, not against their interests.
POST 1: Financial Times: UK’s Rishi Sunak eases off on taking Brexit axe to EU laws. Plan for ‘delivery unit’ shelved in wake of warning EU legislation review would tie up hundreds of officials.
POST 2: Mogg continues to promote his “bonfire” of EU law retained after Brexit in The Express newspaper.
It’s unusual to see such unity amongst aviation organisations across different sectors of the industry. That unity is about the European Union Aviation Safety Agency (EASA). Established in 2002, the EASA has more than 800 aviation experts and administrators from its Member States. A while back a UK Parliament Select Committee report found: “There is widespread agreement that continued membership of EASA would benefit the UK and the EU.” Aerospace businesses, unions and academia are unanimous in support of remaining in EASA.
The BALPA (The British Airline Pilots Association) said: “we need to maintain current EU and UK access to our aviation markets and to maintain EASA safety regulation”.
UK aviation industry body, ADS’s Chief Executive said: “We have been clear that continued participation in EASA is the best option..”.
Even on Saturday, the UK CAA’s own website continued to say: “The CAA has been clear since the EU referendum that we consider the most positive outcome for UK consumers and the aviation industry would be one where the UK has continued participation in the EASA system with existing systems of mutual recognition between the UK and EASA Member States remaining in place.”
So, there’s one area where people and organisations are overwhelmingly unified – we need to maintain current EU and UK access to our aviation markets and to maintain EASA safety regulations.
It was always on the cards that the new UK Conservative Government would revisits this subject. This was even though the firm planning assumption that everyone had made for the last 4-years was based on the UK’s continued membership of EASA.
Now, the UK Transport Minister with such responsibilities says that the UK will withdraw from the EASA. Implementing that policy change the UK Department for Transport has said: “Being a member of the European Aviation Safety Agency is not compatible with the UK having genuine economic and political independence.” This does not preclude the UK continuing to work with the EU to establish a new regulatory relationship, but it’s a tall order with only 10-months remaining on the clock.
I think this a bad decision. Not sound or rational or in the interests of the UK. Here, I’ll look at the apparent justifications.
Compatibility with genuine economic and political independence
This suggests that membership of the EASA would impede the UK from taking any action it wishes. There are 4 non-EU members of EASA. One of them is our near neighbour Norway. CAA Norway has the responsibility to oversee and regulate all aspects of civil aviation in Norway. That applies to the Norwegian flights that are based out of London Gatwick. In matters of aviation regulation, whether it’s at ICAO, EASA, EUROCONTROL or ECAC Norway speaks with economic and political independence. It applies Norwegian law. It does not seem to be impeded in advancing its aviation interests.
Being a member of EASA is not possible outside Single Market
This has been well debunked. The manner with which non-EU States participate in the EASA is not the Single Market provisions. There is a “Basic Regulation” that establishes EASA. The Article 129 of the Basic Regulation addresses participation of European third countries. Yes, it does say that such non-EU States need to adopt and apply Union law in the fields covered by the Basic Regulation. However, this text does say how this is to be done. In fact, the UK has done this, at least until the 31st December 2020. All that is needed can be done in UK law. If EASA rules or standards are considered to be too low, there’s no impediment to enhancing them as required.
We’ll be wanting to develop our own aircraft certifications
The implication is that the UK will want to do something radically different from the international community. That maybe the case for research into new air vehicles but if the UK wishes to sell such products in the international marketplace it will need to met international rules and standards. A domestic industry providing Urban Air Mobility (UAM) vehicles will need to compete across the globe. EASA is preparing itself to better support innovation from industry (e.g. Artificial Intelligence, block chain technologies, extensive automation and eVTOL aircraft). Lack of harmonisation, duplication and fragmentation in this field serves no good purpose.
4. UK expertise can be used as leverage in negotiations
Across the globe, the aviation industry and most States say that aviation safety is not a matter of competition. There’s a great reliance on cooperation and sharing information to ensure that no State is left behind. A just safety culture is one where working togther is normal. It’s difficult to improve safety when people imply blame and echo a negative attitudes. To imagine this subject to be a matter for open commercial competition is flying against all international best practices.
5. A wish to not be subject to the rules made by others
No man is an island If this reasoning is applied literally then it’s impossible to participate in any international organisation. In most cases it’s preferable to participate and have a significant influence on any rules. The Convention on International Civil Aviation (known as Chicago Convention), came to be in 1944. Since we (UK) do not control ICAO, should we now withdraw? Clearly that would be a nonsense. In our own region of the world, namely Europe, it would be wise to act skilfully to maximise the influence that is available not to walk away.
I join other aviation professionals in thinking it’s extraordinary how little the UK Government is prepared to consult with industry, consider cost and benefits and explain any new arrangements that will need to be put in place in a short time. At one time there was a stubborn insistence that major changes should not be introduced without a detailed impact assessment. Now, anything goes if the Minister likes it.
It can take a long sentence to say something simple. On second reading, that simple sentence can mean a lot more than is first understood. Take this text for example:
In the case of conflicting interpretations of the laws, regulations or requirements pertaining to certification or approvals under this Agreement, the interpretation of the competent aeronautical authorities of the Contracting State whose laws, regulations or requirements is being interpreted shall prevail.
So, said an exchange of notes between the UK and US dated 28 December 1972. For reference, the UK joined the European Communities on 1 January 1973. The aim of the note was the reciprocal acceptance of airworthiness certificates. This sort of agreement is vital given that civil aeronautical products get shipped for use all over the globe.
Thus, the UK accepted that if there was a disagreement about a US rule then US law prevailed. Because this is about reciprocity, so the US accepted that if there was a disagreement about a UK rule then UK law prevailed.
Here we are in 2020 with talk of creating a suite of new Bilateral Aviation Safety Agreements (BASAs) as a result of the UK’s withdrawal from the EU. Wouldn’t it be quick and pragmatic to use similar words to the 1972 ones again?
Here lies a big problem or at least that’s how one red line makes life difficult. If the UK’s current statements about being an independent self-governing nation totally excludes any role for the applicability of European law how can a reciprocal agreement be written?
Also, there’s the historic inconsistency, as before the UK joined the EU it accepted by the note mentioned that interpretations set against another State’s law would be accepted. There’s a peculiar element to this too, given that at the point of withdrawal from the EU, UK law and EU law are harmonised on the matters of certification and approvals.
Compromise requires a rejection of a narrow doctrine. If both the UK and the EU are satisfied that they both have competent aeronautical authorities, then the reciprocal acceptance of certifications should be possible. That’s if there’s the political will to make it happen.
The industry group ADS said: “We are disappointed that both the UK Government and the EU are not seeking a more ambitious approach to aviation safety.” It’s easy to see why they are disappointed. That said, negotiations are just starting, and practical opportunities exist.
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. 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.
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. 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.
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. 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.
The more I write these short Blogs, the more I talk about the subject, the more I’m no longer surprised that the complexity of the changes that are underway are not in the public mind. Issues that I consider to be of great magnitude and changes of real concern are more for the specialist. The detail of how the aviation system works is indeed specialist knowledge.
As an airline passenger, getting on a flight, we all take for granted a huge number of complicated interacting systems that we expect to work without us needing to understand how they work. Just like when I pick-up my iPhone. Even as a professional engineer, I only have a superficially knowledge of how my iPhone does what it does, but I do expect it to work every time.
So, how do we have any kind of discussion about good, bad or indifferent impacts of Brexit when we skit over the detail? The answer is that we need to trust someone. Trust a person to tell the truth, as best they know, about the potential impacts of Brexit. Now if you have a list of different types of people and you ask: “tell me if you generally trust them to tell the truth, or not?” the results do stand up well for the specialist. Being and Engineer, I’m heartened to see that “Engineers” are right up in the rankings. Government Ministers and politicians are right at the bottom of the rankings.
So, why do so many people appear to believe politicians when they dismiss professional views on the impact of Brexit? So called “Project Fear” is often quoted. This seems counter to the evidence. Or is it that what we may think is happening isn’t happening at all. Maybe Government Ministers and politicians are not believed at all when dismissing professional views. In fact, a big delusion exists.
Let’s put that to one side and look at where we are. Now just into the new month we are days away from the European Union (EU) summit planned for 17 – 18 October. UK law requires the UK Government to ask for a further extension to the existing deadline of 31 October. The “Benn” law does not stop the extension request being submitted before the summit, but the expectation is that a request will be made after the summit. Much depends on the results of the EU summit (European Council meeting).
Before the above the UK Government will hold a Queen’s Speech on Monday, 14 October. This Queen’s Speech may be important in the sense that it could set out the next steps. It’s strange in many ways given that the Government has no working majority. The Queen’s Speech debate in Parliament on 15-17 and 21-22 October will be a sham.
Meanwhile, the UK Parliament’s Brexit Select Committee hasn’t met since before Prime Minister Johnson prorogued the UK Parliament in September. So, is anyone looking at the detailed lawmaking that’s going on at the moment?
Let me be rash and speculate. Looking 9 months ahead. I think the European Council will make progress, but it will not resolve Brexit and UK will ask for an extension and it will be granted. To apply leverage the UK Government will threaten to be uncooperative or at least an unhelpful Member State during the new extension period. Politically, blame will be flying all over the place, but it will be so scattered that much of it will not stick in one place for long.
The new deadline will be the 4th anniversary of the 2016 referendum and will fall in June 2020. Thus, there’s a high probability of a May 2020 UK General Election. In many places, coincident with the UK local elections. That’s where the new deal, of whatever shape and form it takes, will be out there in front of the British electorate. By then the 27 EU Member States would have already agreed to it in principle.
This week there’s been a strong message in the news. It’s been about the lessons of history, the value of cooperation and the vital role played by international institutions in keeping the peace that we enjoy. That’s no less true in civil aviation as it is in many other walks of life.
Until the 1940s aircraft operation, design and manufacturing activities were mostly conducted at a national level. With the advances in technology brought about in World War II and anticipating a post-war growth in civil aviation far sighted Governments set-up what is the now the International Civil Aviation Organisation (ICAO). This organisation formulates basic standards and practices that can applied by its Member States across the globe.
Back in my Blog; Brexit 67, I mentioned that this year is an important year for ICAO. It’s an Assembly year. Every 3-years an Assembly comprised of the Member States of ICAO meet at its HQ in Montreal, Canada. During the first 75 years of its existence, ICAO has made an indisputable contribution to the development of worldwide civil aviation. This is quite an achievement given the need to get agreement with its 193 Member States and many international organisations.
During the ICAO Assembly sessions, a work programme in the technical, economic, legal and technical cooperation fields is reviewed in detail. Within ICAO, the European Union (EU) its agency, the European Aviation Safety Agency (EASA) are major contributors to its work. The role and recognition of regional organisations is growing. Its accepted that solutions need to be tailored to fit the local circumstances in global regions.
In respect of Brexit, whatever happens to the UK, as an ICAO Member State it will need to continue to apply international Standards and Recommended Practices (SARPs). Today, civil aviation is regulated at European level. To make that work the aviation safety regulations agreed at European level comply with the ICAO SARPs. However, it’s an hierarchical construction so much of the detail needed is in what is often called “soft law” and can be changed independently of the ICAO SARPs.
Even in this Brexit extension period uncertainty remains as to what you may need to do to continue working and operating in the aviation industry if, or after the UK leaves the EU on 31 October 2019. The UK’s lack of clarity and direction are not helpful for anyone in who wishes to plan. It will be interesting to see if the UK makes a meaningful contribution to the ICAO Assembly this year, as it has done in the past.
 EASA is responsible for the issuance of type certificates and organisation approvals in the EU. After its withdrawal, the UK will resume these tasks under its obligations as ‘State of Design’ under the Chicago Convention on International Civil Aviation.
So, what happened on Sunday when the #EUelections2019 result became public? Professor Sir John Curtice sums it up for me: “Far from providing a clear verdict, the result simply underlined how difficult it is likely to be to find any outcome to the Brexit process that satisfies a clear majority of voters.” Yes, last week most British voters backed political parties that support staying in the European Union (EU) but that’s not enough to bring the whole process to a conclusion. Now, as Brexit, and the disruption of Brexit get caught in an infinite loop, we must remember that the rest of the world continues to advance with every other matter of interest. For example, the competitiveness of the aviation industry depends upon having common agreed rules. Developing and implementing those rules is the way we build the future.
Big on my aviation news last week was the adoption of legislation on Drones in Europe. One of outputs in the European Commission’s Aviation Strategy for Europe is the technical requirements for Drones. These new rules apply to both professionals and those flying Drones for leisure in the EU Member States. By 2020, Drone operators will need to be registered with national authorities. That will be simple for mass-produced Drones and proportionally more detailed for larger Drones.
Currently, the UK Civil Aviation Authority (CAA) is running a consultation on a proposed charge for a new drone registration scheme that it is intended will become UK law at the end of November 2019. The EU rules will replace existing national rules in EU Member States, but in a “No-Deal” post-Brexit UK the national rules will continue to be applicable. I expect these rules to, for the most part, remain similar in their aims and objectives but there’s no doubt they are set in a different context and use different legal language. Next, the European Commission and the European Aviation Safety Agency (EASA) will publish further guidelines. It will be thought-provoking if those operating guidelines are not adopted by the UK.
In fact, the UK will be under pressure to adopt the rules on Drones. Mainly because any Drone operators that has their principal place of business, are established, or reside in a Third Country, will need to apply the EU Regulations if they wish to operate within the Single European Sky airspace.
The US FAA is serious about the business of Drones. A major conference is coming up and the aganda includes EASA. This is a postive message for US- EU cooperation. The successful certification and implementation of what’s being called “urban air mobility” is going to need a great deal of international working.
Key to operating safely and making a commercial success of a business using Drones will be having products and processes that can operate in a wide spectrum of environments and interoperate with others. Innovators across Europe will be looking use Drones for more and more applications as the technology develops. In time complex drone operations with a high degree of automation may become as day-to-day as mobile phones are to our lives. Now, the EU has achieved this initial aviation milestone where we go next is up to the imagination.
 European Commission adopted EU rules (Implementing Act Drones & Annex to Implementing Act Drones) to ensure increasing Drone traffic across Europe is safe and secure for people on the ground and in the air.
It’s a good question to ask. Will cooperation, coordination and convergence end with Brexit?
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. 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.
 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.