Law – Page 9 – John Vincent

No Treaty means no Treaty

This week the Bank of England’s interest-rate increase has become another bump on the road to Brexit. BoE Governor Mark Carney commented that the risk of the UK dropping out of the EU with “no deal” was “uncomfortably high.” Ripples of vitriolic Brexit Tweets and alike popped up to denounce this as, so called Project Fear Mark 2.

The cautious and conservative, with a small “c”, Carney dared to give an expert assessment of the current situation based on his reasoning and experience. Such is the tribalism in British politics that anything that gives the merest impression that Brexit might not be wonderful immediately sparks fanatical cries. Rational thinking in this battleground gets two fingers in the air.

Reading, listening and watching discussions about a “no deal” outcome, I’m struck that so many people talk about it but often they mean something completely different.

Let’s be clear. The so called “no deal” is in Article 50 paragraph 3[1]. It is that the Treaties we are currently signed up to will cease to apply from one day to the next. Without a withdrawal agreement in place or an extension to the two-year period we enter the unknown.

Brexiters might be happy with this outcome but that’s a foolish position to take. Treaties, by their nature, have benefits and obligations for both parties involved. Take away those in one day and put nothing in their place is most likely to cause mayhem.

Contacts may become void. Certificates that are mutually recognised are no longer recognised. Qualifications are questioned. Massive numbers of technical and administrative processes become uncertain. Brits working in the EU are put in limbo, as are EU citizens working in the UK.

No Treaty means no Treaty.

Its like pulling up a drawbridge or pulling down the shutters and saying the shop is closed to the 27 Member States of the EU while we refurbish the premises. Now, I agree such a situation would not last forever as people of goodwill will desperately struggled to find workarounds. People who don’t have goodwill will try to take advantage of the uncertainty. It’s likely that the larger organisations will have protective contingency measures in place. However, SMEs and individuals will be vulnerable and subject to unpredictable costs.

There needs to be a withdrawal agreement in place even if it’s just one page saying; carry on.

[1] 3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

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

Rules, Rules, Rules

Let’s unbox this rule-taker verses rule-maker dichotomy. For one it’s NOT a binary choice. In so far as international aviation safety rule making is concerned I have seen small, well informed organisations have a major impact of new rules and large powerful Countries asleep at the wheel.

It’s an illusion to assume that rulemaking process and procedures are static. However, this is where political machinations have a significant impact. It may or may not be the case that the parties to rulemaking fully understand the technical issues under consideration, but it’s nearly always the case that everyone has a view on the process and procedures.

I’ve sat in high-level meetings and listened to most ridiculous things being said about important technical issues and realised the room is divided between those who knew what’s going on and those who didn’t have a clue. So, its not surprising that the default is that people often focus on process and procedures rather than issues. Perhaps that’s where Brexit has gone off the rails.

Consensus based rulemaking moves slowly often to the frustration of all involved. I could say; if you are going to make a thick glue, that binds, it takes a lot of mixing. Outcomes generally succeed or fail not only subject to the good-will of the participants but based on the hard work and quality of both leadership and secretariat. Perhaps that’s where Brexit has gone off the rails.

In fact, a secretariat can have the greatest soft power regardless of the disposition of votes amongst the membership of a group. The great art and skill of finding a set of words that captures the essence of a proposal, standard or report is much underestimated.

Despite having written what I have above, it remains better to have a vote than not to have a vote. Even if the UK continues to be able in its exercise of soft power its difficult to be convinced that long-term best interests are served by becoming a rule-taker. International rules are made by Countries working together. The bigger the coalition you have on your side the better. Europe working together has much more weight than a fragmented approach from individual Countries. Considering Mr Trump’s “divide et impera[1]” world view it would be wise to have close working partners.

Today, Britain has set a course for a soft Brexit. In the short-term that can work. Over the horizon, its large regional trading blocks that will dominate. Please EU Member States, throw the UK Government a life-line. If instability continues, a real chance of another General Election or even a referendum on the deal exists. That may be needed but its sure going to be a rocky ride.

[1] Divide and rule (or divide and conquer)

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 12

Having just read Michel Barnier’s recent speech to the 28th Congress of the International Federation for European Law (FIDE)[1] it suggests why Sunday’s news stories are centred around the doomsday scenario. There’s distinct possibility of a “no deal” scenario between UK and EU. A line in the speech stood out to me: “We do not want, and cannot, move from a community of law based on the supervision of the Court of Justice to a simple political dialogue”.

The “no deal” scenario would be to set aside the current legal framework for negotiations. It would be to turn future discussion between UK and EU into a volatile political tussle between a Country and its neighbouring trading block. It’s would be the diplomatic equivalent to arm wrestling or survival of the fittest. Such an outcome would assure many years of continuing uncertainty even if there wasn’t a collapse in several industries and a whole lot of pain for citizens.

As the departure date gets closer, the Hard Brexiters are incentivised to sabotage the negotiations to get what they want, namely UK crashes out, without a deal. At the same time as the above is in prospect, Ministers continue to emphases that Britain is open for business. Government continues to stress that they want and expects an exit deal with the EU.

In aviation, commentators can only speculate given the paucity of information in the public domain.

It’s interesting to read Professor Keith Hayward’s[2] look at the legal, safety and regulatory “unknown, unknowns” on the countdown to the Brexit day. A former UK CAA colleague of mine has written a useful piece on the subject too[3].

What is clear is that beyond these shores more aviation people are getting more concerned. It’s not an act of ill-will to be prepared. In fact, the international obligations in place require preparedness.

For example, the Federal Aviation Administration (FAA) is preparing to take on the surveillance of the large number of approved repair stations in the UK[4]. Today, this work is addressed in the bilateral aviation agreement between US and EU. An international agreement that may not be valid in the UK on 1 April 2019.

There’s a real need for the UK Government to be more explicit about how the UK aviation industry will be regulated post-Brexit. Legal uncertainty is bad for business and for anyone who wants to fly.

At least over the next 4-days EU-UK negotiations are continuing (Tuesday, 5 June 2018 to Friday, 8 June 2018). The remaining issues with the Withdrawal Agreement are to be chewed over in Brussels. That includes; Northern Ireland/Ireland and the future EU-UK relationship. This is timely given the vote in the UK Parliament next week. That’s when the House of Commons will be compelled to consider all the House of Lords amendments to the draft EU Bill in just one sitting, with virtually no time for debate. All of which is not a recipe for success.

[1] http://europa.eu/rapid/press-release_SPEECH-18-3962_en.htm

[2] https://www.aerosociety.com/news/brexit-airlines-count-down-to-march-2019/

[3] https://www.linkedin.com/pulse/brexit-uk-aviation-cliff-whittaker/

[4] http://www.mro-network.com/maintenance-repair-overhaul/faa-prepared-oversee-its-uk-mros-post-brexit-if-needed

Wake up the sentinels

When I half remember good advice, it drives me to do a bit of research. This week, watching all the questions being asked of Facebook, I couldn’t help but recall something I’d read more than 30 years ago. Yes, going back that far does have relevance because fundamental questions are exactly that; fundamental.

It seems every time technology advances the law follows but several steps behind. That’s law makers and those who sit in judgement trying to interpret tomes of law need to speed up. It was starkly apparent to me that Facebook was getting an easy ride, as questioning politicians struggled to keep up. Few question hit the mark or even attempted to look ahead.

For me, as for many, even research can’t be conducted without a heavy reliance on technology. So, I searched with the fragments of what I’d remembered. Typing into Google’s almighty search engine the two words “sleeping sentinels” because that’s what I thought was the name of a book.

Initially, I didn’t find what I wanted but what I did find was intriguing. I wasn’t previously aware of the story of the “sleeping sentinel”. A Union Army soldier during the American Civil War. He fell asleep whilst on duty, was court-martialled and sentenced to be executed. Harsh treatment indeed. But after his death sentence was read, a pardon was read thus saving his life. Lincoln had interceded on Scott’s behalf.

In this tale there’s an indication of the awakening of the idea of a “just culture”. Today, people with safety related work are expected to report such a case as; falling asleep on the job due to fatigue. In a “just culture” they should not be punished if others can learn from their experience.

I digress, since my aim was to rediscover an almost forgotten book on law. Eventually, I came to a reference to a book called: “The Slumbering Sentinels: Law and Human Rights in the Wake of Technology”[1]. This was the paperback I remembered.

One of the tenants of the book is that the law is sleeping while technology is racing ahead. Clear insight from the 1970s and 80s trying to consider the implications of personal commuters and alike.

Equally important to the case of understanding Social Media is the changing landscape of political campaigning. Its only now that everyone is discovering the details of what happened in June 2016 in the UK.

Its Friday 13^th and the news media is full of conflict and tension, but I hope this material gets well discussed. It does amount to finding out, after the event, hugely significant facts about the referendum of 2016.

https://www.parliament.uk/business/committees/committees-a-z/commons-select/digital-culture-media-and-sport-committee/news/fake-news-matrix-evidence-17-19/

To quote: “192. If the Commission indeed refrains from even exercising a discretion as to whether to refer a matter to the police or prosecuting authorities until it is satisfied beyond reasonable doubt that an offence has been committed, this in our view would constitute an unlawful fetter on its regulatory discretion.”

What a dilemma. If the Electoral Commission, police or prosecuting authorities do not respond then they are indeed Slumbering Sentinels.

If they do respond, the case could be made for invalidating the 2016 referendum. To reassure them, as I have been saying in this article, they will not be the first to wake-up while technology is racing ahead. It’s difficult to foresee how technology will be misused in the future especially when money is no object. That said, we can’t ignore the facts.

[1] The Slumbering Sentinels: Law and Human Rights in the Wake of Technology (Pelican) Paperback – November 24, 1983 by C. G. Weeramantry