Aviation, Brexit and COVID19 (ABC) 5

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At the start of this pandemic, prominent UK Brexiters were saying: no need to panic.  Let people continue to mingle.  Let the virus become widespread so lots of people build-up an immunity[1].  As is so typically with Brexiters, they could not have given worse advice at a worse time.  What’s sad is that, at the beginning of the year the UK Government was going down this uncaring road.

In the UK, we have broken the ominous threshold of 10,000 deaths put down to Coronavirus.  It’s tragic that the UK Government didn’t take the warnings signs coming from China sufficiently serious.  Now, the horse has bolted, and everyone is desperately playing catch-up.  The UK’s chief scientific advisor has admitted that coronavirus testing in the UK should have been ramped up faster[2].

Even the hardest of hard-core Brexit supporters are saying, responding to COVID-19 is more important than pushing on with negotiations between UK and EU.  Let’s hope that common sense prevails. The two parties have until the 1 July 2020 to decide whether to extend the existing transition period, and on what detailed terms.  There’s even strange talk in the media that the UK wants pay-as-you-go Brexit.  It’s simply not sane to expect Governments to secure a new free trade deals while dealing with a deadly situation.

It hardly seems right to be writing about Aviation at this moment.  At the beginning of this year the biggest crisis the industry faced was that concerning the Boeing 737 MAX.  It’s been a year since Ethiopian Airlines Flight 302 crashed, taking 157 lives[3].  Naturally, that remains an important safety concern, only that it’s overshadowed by the coverage of the impact of lockdowns over the globe.

France has just extended its lockdown till 11 May 2020. It will be surprising if the UK doesn’t mirror what other European States are doing.  Each should be learning from the other in this respect.

We ought to be thankful that there’s so many transport workers, air traffic controllers, pilots, engineers and professionals who maintain aviation. Cargo and essential medical supplies are continuing to be moved safely by air.  Aviation safety must remain the top priority whatever the commercial or mission pressures.

[1] https://www.conservativehome.com/thecolumnists/2020/02/daniel-hannan-alarmism-doom-mongering-panic-and-the-coronavirus-we-are-nowhere-near-a-1919-style-catastrophe.html

[2] https://www.itv.com/news/2020-04-13/coronavirus-testing-in-uk-not-ramped-up-as-quickly-as-it-should-have-been-government-s-chief-scientific-advisor-admits/

[3] https://twitter.com/nytimes/status/1237423006869225475?s=20

Brexit, Aviation and the Withdrawal 13

WP_20170826_008For decades we (UK) have been interwoven with the EU in an intricate pattern that is complicated and often not well understood even by those who are supposed know.  The twists and turns of the last 4-years have brought about a situation where those who say: absolute independence outweighs the risk of being “shackled” to the EU, now govern the UK.  The idea of common interests and common solutions to common problems has gone out of the window.

Aircraft are built by experts, tested by experts and flown by qualified experts with exceptional skill and with multiple safety backups.  Brexit has been driven by opportunist politicians who persistently distort evidence to support their beliefs with scant regard of the costs or harm done.  Thus, the next steps in the Brexit EU-UK negotiations will be as difficult, as difficult as can be imagined.  That’s what has indeed happened if reports of this week’s discussions are surveyed.

The UK will withdraw from the European Union Aviation Safety Agency (EASA) after 31st December[1]. The divorce is a hard one.  I can think of a lot of Brits who dedicated enormous amount of effort to European harmonisation who will be turning in their graves.

Yes, it’s true that the road that led to the EASA had its roots in the UK.  When I started work at the UK CAA, the offices of the Joint Aviation Authorities (JAA) were based at Aviation House, London Gatwick.  The benefit to aviation of having a common code was recognised in the 1980s.  Signing of the “Arrangements concerning the Development, the Acceptance and the Implementation of Joint Aviation Requirements” (the “Cyprus Arrangements”) by 24 European States, took place in 1990.

In time, the weakness of the JAA system became apparent in that the common application and interpretation of aviation codes was not so common.  The framework of European law was necessary to ensure that there was indeed a level playing field and a high level of aviation safety.  In European law, a division of tasks between the EASA and the national aviation authorities was determined.  EASA was given the power to carry out legally binding certification tasks, thus overcoming the limitations of the JAA system.  The creation of EASA, led to the harmonisation of more existing rules and regulations and greater cooperation in the formation of new rules.

Reversing out of 30 years of progress is a challenging task.  Yes, it can be coloured as a bold new era in flourishing rhetorical terms but practically it looks like a knee-jerk reaction.  Not only that but the timing is awful.  Market turbulence due to the contagious virus is severely impacting aviation.  Not only that but the whole process of certificates issued by one authority being automatically accepted by another authority is being questioned because of the Boeing 737 MAX case.

Playing to the crowd with symbols of post-Brexit independence isn’t a wise move.  It’s kamikaze.

[1] https://aviationweek.com/air-transport/safety-ops-regulation/uk-will-leave-easa-says-british-transportation-secretary

Brexit, Aviation and the Withdrawal 12

IMG_1306It 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[1] 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.

[1] https://www.adsgroup.org.uk/news/newsroom/ads-statement-on-uk-approach-to-future-economic-relationship/

 

Brexit, Aviation and the Withdrawal 11

IMG_0696Spring 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.

Aviation & Brexit 92

The clock is ticking.

Having studied fatal accidents in aviation, and other industries there’s often several factors that come together to create a catastrophic event.  One of them played a part in the loss of two of NASA’s Space Shuttles.

Everyday complex activities are part of the way we live and work.  Operating aircraft or running a Government requires people to work together in dependable ways often following tried and tested processes and procedures.  Nothing new in that, you might say.  However, it’s an arguable point to say that the level of complexity we face is constantly increasing.

I make no argument for always sticking to the same ways of doing business but only that before changes are introduced it’s wise to do some analysis of the risks involved.  Brexit is no exception.  Some of the risk assessments associated with Brexit don’t make happy reading.  A Whitehall paper outlining the reality of a No Deal Brexit was recently in the news.

One of the most astonishing aspects, at least to me, of the approach of the Johnson Government is the normalisation of the risks associated with a No Deal Brexit.  Risks that in earlier times would have been avoided at all costs are now welcomed.

I believe that this has crept up upon us because it became politically expedient for Conservatives to deviate from what’s normal.  And I mean deviate a long way from what’s normal.  This is incredibly dangerous.  It’s dangerous because initially nothing untoward happens.  Afterall we are talking about a future event, namely 31 October.

This “normalisation of deviance” is what NASA suffered[1].  One day it became expedient to deviate from certain processes and then this became normal.  People became accustomed to the deviation, so they don’t consider it to be deviant anymore.  Then disaster struck.  After the disaster it was difficult to understand why action was not taken to stop and think again.

Our British political or social normalisation of deviance is a pathway to self-harm.  It’s proving hard to get people to stop and think again.  But we must continue to try.

[1] https://sma.nasa.gov/docs/default-source/safety-messages/safetymessage-normalizationofdeviance-2014-11-03b.pdf?sfvrsn=c5421ef8_4

 

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/