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House of Lords Hansard
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Aviation Security (Amendment etc.) (EU Exit) Regulations 2019
25 February 2019
Volume 796

Motion to Approve

Moved by

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That the draft Regulations laid before the House on 31 January be approved.

Relevant document: 16th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee A)

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My Lords, the draft regulations will be made under the powers contained in the European Union (Withdrawal) Act 2018 and will be needed if the UK leaves the European Union without a deal. The instrument amends EU Regulation 300/2008 and its subsidiary legislation, which sets out the EU rules on aviation security standards that apply to airports, air carriers and entities with access to secure areas at airports. It governs matters such as the screening of passengers and cargo, access control and the vetting of staff.

The draft instrument corrects seven EU instruments which provide the framework for the security of passengers and cargo travelling by air. It also makes some minor changes to the Aviation Security Act 1982. Regulation 300/2008 establishes the framework for the aviation security framework regime in the European Union and sets out the common basic standards. It covers everything from passenger and cargo screening to staff recruitment and training and technical equipment specifications.

The draft instrument makes changes to the scope of the retained regulation to reflect that the UK will no longer be part of the EU after exit day. The retained regulation will apply to all flights departing from an airport in the UK. It will also retain provisions regarding inbound cargo, which I will come to later. The amendments limit its scope to the United Kingdom and remove provisions that will no longer apply to the United Kingdom. The amendments also replace legislative powers exercisable by the Commission or member states with regulation-making powers exercisable by the Secretary of State. In essence, the security screening requirements for all direct passenger flights to and from the UK will remain as they are today.

Regulation 272/2009 supplements the common basic standards by including additional provisions on aspects such as the methods of passenger and baggage screening permitted. It also sets the criteria for recognising the equivalence of security standards of third, non-EU countries when considering exemptions from these screening procedures for passengers transferring at EU airports. The supplementary requirements relating to aspects such as the types of permissible screening method remain unchanged. References to Commission legislative procedures are replaced by reference to domestic legislative procedures, at the same time maintaining equivalent levels of scrutiny.

The provisions relating to the criteria for EU recognition of the equivalence of third-country security measures with EU aviation security standards are deleted. This is because the concept of “equivalence” with the baseline standards in the retained EU regulations does not make sense in a UK-only context where we apply additional measures over and above that baseline. In the future, the UK will retain the ability to make determinations in relation to One Stop Security through Secretary of State direction-making powers under the Aviation Security Act. This power would be exercised on the basis of an assessment of equivalence with the totality of UK aviation security standards.

The third EU regulation covered by this instrument is Regulation 1254/2009, which sets out the conditions under which alternative security standards to the common basic standards may be applied. It covers, for example, non-commercial flights, where the full passenger screening requirements may not be necessary. It allows that for such flights, the common basic standards contained in the main framework regulation may not be appropriate and alternative security measures may be more appropriate. Specifically, such flights might involve light aircraft with a maximum take-off weight of less than 15,000 kilograms; law enforcement flights; flights for medical services, emergency or rescue services; or certain private or business aircraft flights. The draft instrument makes no changes to these criteria.

Regulation 2015/1998 implements the common basic standards by prescribing more detailed requirements. This covers matters such as airport security and planning, aircraft search, passenger and baggage screening, cargo and mail security, training and recruitment, security of supplies available in airport shops and on board aircraft, and technical equipment standards. It makes detailed provision for the practical implementation of the measures contained in Regulation 300/2008. All of these aspects are essential to aviation security and this instrument retains the provisions, subject to the necessary amendments to remove specific EU references.

One key area of Regulation 2015/1998 is the EU inbound cargo regime. The EU operates a regime known as ACC3, which stands for “Air Cargo or Mail Carrier operating into the Union from a Third Country Airport”. In essence, this is a requirement for air carriers carrying cargo into the EU from a non-EU country to hold security designations. These designations confirm that they are screening cargo to the required standards and that a secure supply chain exists from the origin of the cargo to its point of entry into the EU. Responsibility for administering this system and granting designations is currently shared between member states. If the UK leaves the EU without a deal, it will no longer be part of this system, but it is of course critical that we maintain our inbound cargo security protections. The effect of this draft instrument is to retain the requirement that carriers must hold a security designation in order to fly cargo into the UK from third countries, and to apply this in a UK-only context. The new system of UK-ACC3 designations will be managed by the Civil Aviation Authority and the Department for Transport. In order to ensure a seamless transition on exit day, new UK designations will be issued to all carriers flying into the UK who currently hold EU designations. On expiry, carriers and screening entities will need to apply directly to the UK for new designations in the event of no deal. New designations will be granted using largely the same criteria as the existing system to minimise any additional burden on industry.

Regulation 2019/103 amends Regulation 2015/1998. The amendments that come into force before exit day have already been incorporated into Regulation 2015/1998 and will be retained and amended accordingly. The amendments that come into force after exit day do not form part of retained EU law. The only provision in Regulation 2019/103 that becomes part of retained EU law on exit day deals with the coming into force date of those later amendments. As the provision does not therefore serve any purpose, it is revoked by this draft instrument.

Regulation 72/2010 covers the requirements for Commission inspections of EU airports and national authorities, which will no longer be applicable, so the draft instrument revokes this regulation. The draft instrument also amends the Aviation Security Act 1982 to remove references related to Commission inspections and inspectors.

Finally in this instrument, Decision C (2015) 8005 contains detailed provision relevant to and in parallel to the detailed provision in Regulation 2015/1998. This Commission decision is a restricted confidential instrument which contains sensitive information necessary to require airports to carry out effective security procedures. Because of the security-sensitive nature of the provision it makes, for example, the types and quantities of material used for equipment testing, the decision is circulated only on a “need to know” basis and is not published.

Under the withdrawal Act, EU instruments not published before exit day are not required to be published on exit day and therefore cannot be meaningfully amended by this draft instrument. In order to retain the important aviation security rules contained in the decision, the requirements previously contained in it will instead be imposed by a direction. The direction will be given by the Secretary of State under powers contained in the Aviation Security Act 1982. The direction will form part of the single consolidated direction which sets out our domestic aviation security requirements that apply on top of EU legislation. The direction is regularly updated and a new version, incorporating the content of the decision, will be issued prior to EU exit. The content of the new direction will be disseminated to the same UK entities as those which currently see the EU decision.

The best outcome is for the UK to leave the EU with a deal, and delivering a deal negotiated with the EU remains the Government’s top priority. However, as a responsible Government, we must make all reasonable plans to prepare for a no-deal scenario. This draft instrument ensures that in the event of a no-deal exit from the EU, the legislative framework for aviation security will give the aviation industry clarity about the regulatory framework in which it would operate in a no-deal scenario. It will ensure that we can continue to keep passengers and our aviation infrastructure safe and secure. I beg to move.

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My Lords, this SI deals with the legislative framework for aviation security in the UK covering everything from screening passengers to the rules governing access to airports. This is a hugely important field and one where the UK has an extremely good reputation based on rigorous efficiency and the fact that we were one of the first countries to take up the option to introduce more stringent measures on security. Safety at our airports is of course based on the pooling and swapping of key information—a process that has been built into the EU system which this SI dismantles—so I have some questions for the Minister.

On paragraph 6.4, the reassurance here on the use of the affirmative procedure is so gloriously vague that, to be honest, it is meaningless. We might have some affirmative SIs as a result of this, but on the other hand we might have some negative ones. We are given no proper measure of how that decision will be made. I would be grateful if the Minister could give us some information on how that judgment will be made. This is a fundamental area for our country.

Paragraph 6.6 of the Explanatory Memorandum refers to the revoking of Commission decision C(2015) 8005 and then states that the decision is so sensitive that we cannot be allowed to know what is in it. I have to say that this is a first for me. In my experience, I have never known the Government to revoke a secret power. Can the Minister give us some information as to what this might be about, even if she cannot give us the details? Certainly, can she explain why it is impossible to give us that information?

The question of airport inspections is important because we rely on the inspection of airports in other countries in order to ensure that UK flights and UK citizens are safe. We use the information from those inspections to give warnings to UK citizens that they should not fly to certain airports and to discourage airlines from doing so. This system relies on a free flow of information of a very sensitive nature. In future, we will inspect our own airports. That produces two questions in my mind. First of all, how will we make sure we keep in step with the rest of the world on those inspections and the terms on which they take place? Secondly, how will we continue to share information with the remaining 27 EU countries? The sharing of the information is the absolutely crucial thing here.

I move now to the granting of operating licences, which is dealt with in paragraph 7.3(h) of the Explanatory Memorandum. What will be the impact of removing the provision for mutual recognition between member states in the case of the granting of operating licences?

Finally, the EU has a system of mutual recognition of approved air cargo carriers, whereby approval is given following inspection. Once we leave the EU, we will no longer benefit from this system and will have to set up our own system of inspection and designation. To start with, it is explained here, we will recognise all those carriers we currently recognise, but, obviously, things will move on pretty fast. New companies will enter the field, new information might come to light about existing carriers, and so on. We will have to erect a new system that will be expensive to the taxpayer, but also—this is an important point—to the companies seeking approval, because they will have to do it twice over. They will have to seek approval in the EU and in the UK. Once again, I am really concerned that we are isolating ourselves on a security issue. We are voluntarily forfeiting access to information via EU systems. Obviously, on the balance of probabilities, we will be less secure as a result.

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My Lords, this is a very interesting SI, in particular the issue of confidentiality. This has come up again and again in not just the secondary but also the primary legislation. I know for a fact that people in the industries that I am in touch with say, “We have signed non-disclosure agreements, so we can’t tell you anything”, which is fine because it means they have to do what the Government say; they have no other information and no means of questioning it. More importantly, I need to ask the Minister how long these NDAs are going to go on for. As the noble Baroness said, once you have “security” in there and everything is confidential, getting that removed is almost impossible because there will always be 25 reasons for not doing it. That applies to NDAs and, even more important, to this legislation. We might just as well sit back and say, “Well, you didn’t tell us about it. Of course we trust you; you’re the best security in the world until something goes wrong”. Whether we believe that is a different matter, but there is nothing we can do about it.

My second point concerns Regulation 16, which the noble Baroness mentioned, about removing the power of the Civil Aviation Authority to grant operating licences to UK-registered air carriers. Why can the CAA not continue to do this? After all, it is a UK government body with the expertise—probably unlike the Secretary of State and his Ministers. I would go one step further and say we can still leave the EU and not have any input into the decision-making processes that go on—if that is what is going to happen—but is there any reason why we should not have the back-to-back arrangements with member states on operating licences with the CAA on mutual recognition? What is wrong with that, apart from the fact that Ministers do not want to do it? The Minister shakes her head, but technically it would make life a great deal easier. It seems to me that it should be looked at. I do not think any noble Lords will oppose this SI tonight—it is a bit late now—but this is something we ought to be thinking about and challenging. On many of these SIs coming up, including railway ones next week, the decision has been made but actually has nothing to do with the basic principle of leaving the EU. It is somebody’s interpretation of it to suit their own political ends or whatever. It is worth reflecting on that. In the meantime, I look forward to hearing the Minister’s response

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First of all, I thank the Minister for her explanation of this SI. I struggled to understand it, and I suppose it must be of some comfort to know that at least one Member of your Lordships’ House—namely, the Minister—does understand it. Basically, as the Explanatory Memorandum says, EU law,

“sets out the baseline aviation security standards”,

applicable in the UK. As I understand it, the purpose of the SI in front of us is to ensure that,

“the legal framework has the same practical effect”,

after we have left the European Union. It says:

“Regulation 300/2008 and a number of the related EU instruments are being retained in United Kingdom law by virtue of the Withdrawal Act”.

Consequently, the instrument,

“keeps the effect of the regulatory framework the same in practice”.

I too have a number of questions, and I have to say they are suspiciously similar to those that the noble Baroness, Lady Randerson, has already asked. I too refer to paragraph 6.4 and raise the same point that the noble Baroness, Lady Randerson, raised. It says:

“In doing so, this instrument makes provision in relation to powers in Regulation 300/2008 (e.g. to amend detailed aviation security requirements) so as to confer these powers on the Secretary of State. In certain cases, the exercise of these powers is subject to the affirmative resolution procedure where it is considered that greater Parliamentary scrutiny is appropriate”.

So we are talking about something of some significance: detailed aviation security requirements. Like the noble Baroness, Lady Randerson, I would like to know how the decision will be made as to whether it should be the affirmative resolution procedure or the negative procedure. Perhaps the Minister could give some examples of amendments to detailed aviation security requirements that might be made under the terms of Regulation 300/2008 and that would go through the process and the procedure mentioned in paragraph 6.4, so that we can get some feel for the kinds of matters that we as Parliament might be being asked to agree to or accept.

I too refer to paragraph 6.6, which contains this reference to “Commission Decision C(2015) 8005”. I think we get some assistance earlier on in the document in finding out the purpose of this decision. It says in paragraph 2.4 that the contents,

“are not published, by virtue of provision in Article 18 of Regulation 300/2008”.

It then states:

“The Decision prescribes detailed requirements which correspond to the detailed requirements set out in Regulation 2015/1998 but which, if published, would compromise the efficacy of the security measures applied at airports (e.g. the detailed specification of screening equipment or the minimum percentage of passengers required to undergo a particular form of screening)”.

As has already been said, we are told that the decision will therefore not be published on exit day in accordance with paragraph 1 of Schedule 5 to the withdrawal Act, and for this reason cannot be the subject of provision made under Section 8 of that Act.

I was going to ask what would happen then, as Section 8 removes deficiencies in retained EU law and so ensures that legislation is operable in the UK. However, as I understand what the Minister has said, changes—presumably we are talking about amendments to these security arrangements—will be imposed by direction from the Secretary of State. It would be helpful if the Minister could confirm what I think she has already said: that those directions will not be published. The traveling public will not know what they are and, as I think she said, it will be done on what is euphemistically known as a need-to-know basis. If that is the case, how will we know—and how can the Secretary of State be held to account—that appropriate amendments to airport security arrangements have been made? How will we know if he has covered the right issues? How will we know if the changes he has put forward are appropriate? On the face of it, it seems that there is no way in which the Secretary of State can be accountable for what he or she is doing. Perhaps the Minister could comment on whether that is the effect of the arrangements as set out in this SI.

Paragraph 7.2 goes on to talk about the Aviation Security Act and the provision that relates to Commission inspections. It says:

“Normally, two United Kingdom airports a year are subject to such inspections, and the United Kingdom ‘Appropriate Authority’ (the Secretary of State, assisted by the Civil Aviation Authority) is inspected once every three years. These inspections will not take place after exit day, since the United Kingdom will no longer be part of the EU”.

If at the current time the Secretary of State, assisted by the Civil Aviation Authority, is inspected once every three years, who will inspect the Secretary of State and the Civil Aviation Authority in future? As far as I can make out, this document seems remarkably silent on that question. I invite the Minister to fill in what appears to be a gap, or, if it is not a gap, to point out to me where it sets out what the future arrangements will be for inspecting the Secretary of State and the CAA.

Moving on, paragraph 7.3(b) says:

“Regulation 8 amends Article 4 so as to replace legislative powers exercisable by the Commission with regulation making powers exercisable by the Secretary of State in respect of the basic standards of aviation security and to set criteria to permit derogation from these standards and adopt alternative measures”.

Am I right in thinking that this is a new power for the Secretary of State to permit derogation from the standards? Do we have any derogations at present? Have we been trying to get any derogations to date but have failed to do so, which presumably we might be able to achieve once the Secretary of State is making the decisions on derogations?

Paragraph 7.3(c) says:

“Regulation 9 amends Article 5 so as to transfer powers to the Secretary of State to determine the responsibility for covering the costs of aviation security functions”.

I appreciate that I ought to know the answer to this, but will the Minister explain where these powers are being transferred from—the Commission or somewhere else? What is this power and who has responsibility at present for covering the cost of aviation security functions in the UK, bearing in mind that the Secretary of State will determine that responsibility in future?

I will not repeat the question asked about paragraph 7.3(h), which relates to operating licences. However, I too am extremely interested to know what the answer is.

Paragraph 7.3(i) comments that:

“Regulation 18 amends Article 15 so as to transfer responsibility for airport inspections to the Secretary of State”.

I take it this means transferring it from the Commission. Has the Commission ever found fault during any airport inspections so far, or do we have a 100% record in that regard?

Moving on, paragraph 7.8(f), at the bottom of page 7, says:

“Chapter 6 (see regulations 59 to 120)”—

which is an awful lot to have to wade through—

“is amended to introduce the concept of UK-ACC3 to replace the existing EU wide ACC3 scheme”.

As I understand it, ACC3 stands for an air cargo carrier from a third country. Over the page, it goes on to say:

“To minimise any disruption or additional burden on industry, on the first day after the United Kingdom leaves the EU UK-ACC3, RA3, or KC3 designations will be issued to all carriers who currently hold an EU ACC3 designation and fly cargo into the United Kingdom, and their supply chains”.

Can I take it from that, and if I have understood correctly what this is trying to say, that exactly the same standards will be applied under UK ACC3 as apply at present under EU ACC3?

Paragraph 7.8(i) says that in chapter 11,

“the provision for the mutual recognition”—

an issue we discussed earlier for operation licences—

“between Member States of training competences is omitted”.

What is the impact of this and what replaces it? From reading it, I have not been able to make up my own mind as to what exactly the impact will be and whether anything is there to replace it when reference is made to the omission of training competences.

Finally, the Minister will not be in the slightest bit surprised that I am asking this. On the consultation outcome, a number of bodies are referred to. Are the trade unions represented on any of the bodies that were consulted? If not, were the trade unions in the industry consulted at all in the consultation that took place in respect of this SI?

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I thank noble Lords for their consideration of these draft regulations. I agree that this is an important SI, dealing with vital security at our airports and in our skies.

The noble Baroness, Lady Randerson, and the noble Lord, Lord Rosser, asked about future regulation-making powers, and I apologise that these were not specified in the EM. Currently, three legal processes are used for agreeing amendments to EU aviation security, and that depends on the level of the regulation. Essentially, we are following what has been done under the previous regulation.

In order to maintain equivalence between existing EU procedure and the proposed UK procedure for making future amendments, the statutory instrument provides the Secretary of State with powers to make amending regulations by affirmative resolution for amendments to provisions currently covered by Regulation 300/2008 and the overarching Regulations 272/2009 and 1254/2009, and by negative resolution for amendments to provisions currently covered by Regulation 2015/1998 and the amendments to that.

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Does that mean that the Secretary State intends, through the amendments the noble Baroness has mentioned, that the regulations will stay in line with the European ones as they develop?

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I am not able to give the noble Lord that reassurance as we are not sure how EU regulations will develop. However, we are of course committed to maintaining our high security record. As has been mentioned, we already have more stringent measures and that will continue.

On the more stringent measures and the Commission decision, the Aviation Security Act gives the Secretary of State powers to give directions to or serve notices on specified parties—for example, directly to air carriers or airports—for the purpose of discharging his aviation security responsibilities. The single consolidated direction is a compilation of the various directions and, after the UK exits from the EU, the single consolidated direction will continue to refer to the retained EU legislation, supplemented already, as I have said, by the more stringent measures. This is essential to maintaining our existing aviation standards, which will be continually assessed and modified, where necessary, to reflect the current threat picture.

The single consolidated direction will also be used to set out the content of the Commission decision, and the content decision will continue not to be published. The information was not published before and will not be published in the future. I understand the noble Lord’s concerns about that but, obviously, if more details were out there on the specifics of what was needed for aviation security that would put us at risk—for example, the specifications of screening equipment, the volume of detection, the criteria for the random testing of airport supplies, details of the exact screening requirements such as what percentage of passengers are checked, and the green list for aviation security. There is no change in this.

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I appreciate that there are security issues involved—I do not pretend otherwise and the Minister may think this unnecessary—but is it still not possible for the Secretary of the State to publish something at least saying what general areas the regulations or amendments he has made cover without being specific about what they said?

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That would be a new development. As I say, the SI ensures that we continue what we have done previously. However, I will take back the noble Lord’s suggestion to consider whether in the future we could do that.

The noble Lord, Lord Rosser, also asked who will be inspecting the CAA, the Secretary of State and airports after exit day. We will continue to maintain our high standards. We will be part of the ICAO and may have EU inspections for one-stop security purposes. This country has an excellent record of aviation security and will continue to have it after we leave the European Union.

The noble Lord, Lord Rosser, asked about derogation from standards. Some small airports and demarcated areas within airports already have some derogation. That is what we are carrying over. There are no plans to ask for additional derogations.

On civil aviation security equipment manufacturers, the noble Baroness, Lady Randerson, asked about standards. I point to the European Civil Aviation Conference which, despite its name, is a branch of the International Civil Aviation Organisation and is made up of 44 member states. We will continue to play an active role in ECAC after Brexit and that will include contributing to the development of improved standards on security equipment. ECAC also undertakes testing of aviation security equipment to certify that it meets the required standards. We will maintain that relationship. Any international manufacturer producing such equipment can submit it to ECAC for testing and certification and that is the standard we will continue to use. There should not therefore be any other barriers to UK manufacturers supplying EU airports post EU exit.

On ACC3—this is an important part of the SI—I say to the noble Lord, Lord Berkeley, it is not our choice that we will no longer be part of this scheme. It is an impact of leaving the European Union without a deal. The scheme is open only to member states and. if we leave without a deal, we will no longer be a member state. This is not a policy choice that we are taking; it is an effect of us leaving if we leave without a deal. That is why we have had to bring in a new system.

We want to minimise disruption and additional burdens on industry while maintaining our standards. That is why we have the new UK ACC3 designation and that will be issued to all carriers and the supply chains which currently hold the EU designation. We have consulted carefully on this and, prior to leaving, the CAA will formally confirm the new UK ACC3 designations for carriers and that will be reflected in the UK ACC3 database. However, as the noble Baroness pointed out, this is a moving feast. There will be new cargo flights for existing designations and, when they are due for renewal, carriers in that instance will have to apply directly to the UK for the new ACC3 designation. In order to manage the new regime we will need to maintain a record of all granted designations. In a no deal scenario, we will lose access to the EU database that forms the backbone of the EU ACC3, comprising the approved carriers, the entities and the validators. We will need a new system and that is what we have set up. However, we will ensure that that continues to maintain our high security standards and minimises disruption.

In the current system, to which the noble Lord referred, the UK has a responsibility for designating certain destinations to form part of the EU system. That will also be removed and the EU will take on that role.

On compliance and inspection of airports, as I mentioned earlier, the EU has said that it will recognise one-stop security and we expect some EU inspections in the future. However, domestic aviation security compliance is already managed by the CAA and will continue to be so after exit day.

The noble Baroness, Lady Randerson, raised the important issue of costs. As the basic aviation security requirements will not change, any costs to the industry will be minimal. There will be modest administrative costs to air carriers on expiry of their existing designations because of the change in the ACC3 system. We have aimed to minimise additional costs. The evidence required for both systems will remain the same, so carriers should be able to pay for a single independent validation report and submit it to both the UK and EU authorities. There is no direct charge to carriers applying for an EU ACC3 designation and the CAA will not impose a direct charge on that either. I agree with the noble Lord that it would be easier to stay with the same system but, as I say, it is a consequence of leaving with no deal.

On the question of the noble Lord, Lord Rosser, about how the current system on costs works, the current regulations allow member states to decide how to allocate the costs of aviation security, subject to the relevant rules of Community law. That means that member states do it differently. There are some that use central funding for it. In the UK currently we have the user-pays principle: the costs are borne by the airline and the airports and ultimately passed on to the consumer. Industry meets those costs by virtue of the charging system under Section 11 of the Civil Aviation Act 1982, and that arrangement is expected to continue after we leave.

On the cost to government, another point raised by the noble Baroness, Lady Randerson, the CAA already has the expertise to assess applications for cargo security designations under what it does in the EU system and it is making appropriate contingency preparations to deliver continuity under that scheme. It has incurred a one-off cost in developing the new database to assist in administration. That cost is around £150,000 and will be funded out of the CAA EU exit programme contingency fund provided by the Department for Transport. There may also be a modest increase in CAA resources required to administer the system in the future. We expect that to be around two full-time posts a year.

I hope that I have answered the majority of the questions. If I have missed any I will follow up in writing. As I have said, delivering a negotiated deal remains our top priority. This SI makes it clear what the benefits of delivering a deal will be and what the implementation period will be. However, in the event of no deal, it is essential to ensure that a crucial part of the regulatory framework for civil aviation continues to work effectively after exit day and that passengers continue to benefit from the level of security we see today.

Motion agreed.