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House of Lords Hansard
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Air Traffic Management (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 28 January be approved.

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My Lords, this draft instrument will be made using powers in the European Union (Withdrawal) Act 2018 and will be needed if the UK leaves the European Union in March without a deal. It amends single European sky legislation, the four basic regulations which provide the framework for EU air traffic management regulation, and the implementing regulations which set out the more detailed requirements.

The implementing regulations cover air traffic management interoperability: the manner in which the UK works with other states to deliver air navigation services; the organisation of airspace; the safety and oversight of air navigation services; new technology and how it is to be used; and a system of performance and economic regulation for air navigation services. The single European sky legislation supports the EU initiative to improve the efficiency of air navigation services while maintaining safety within the European air traffic management system. The delivery of air navigation services is vital to ensure that congested airspace can be used safely and efficiently. The services regulated by the single European sky legislation support air traffic growth by ensuring the safe separation of aircraft. If these services are not provided in an efficient way, it can cause considerable delays, with resultant costs and disruption to airlines and passengers.

This draft instrument will ensure that the effective regulation of air traffic management arrangements in the UK continues in the event of no deal. It addresses areas where retained EU law will no longer function effectively after leaving the EU. It does this by removing governance and oversight roles of EU bodies that cannot be performed by the UK after exit and assigning them instead to the Secretary of State or the Civil Aviation Authority, and by removing regulatory tools where there is already satisfactory UK legislation. Where possible, roles currently undertaken by the European Commission and EU bodies are being transferred to the Secretary of State or the Civil Aviation Authority, but where they relate to pan-European functions, including air navigation services delivered by more than one state, they are being removed.

The instrument includes arrangements to recognise EU-based certifications and authorisations existing immediately before exit day. For example, EU air navigation service providers operating in the UK that have certificates issued prior to exit day will continue to have their certificates recognised by the CAA, which will allow them to continue to provide services in some parts of UK airspace. These certifications and authorisations will be preserved for a maximum two-year period, subject to any earlier expiry or termination, which will provide continuity until another agreement is reached with the EU on these issues.

The single European sky legislation includes a regulatory framework for the development and deployment of new technology and ways of using it: the Single European Sky Air Traffic Management Research programme, or SESAR. In the event of no deal, the UK will not be able to participate in or legislate for SESAR governance arrangements. We are, however, retaining requirements for the deployment of new technology arising from SESAR for the UK’s air navigation service provider, NATS, and some UK airports, to ensure that UK arrangements are modernised in line with those of the EU and that interoperability is retained.

The instrument also ensures that the UK can continue to comply with its international obligations, such as those set out under the Chicago convention, which governs international civil aviation. This is done by retaining regulations that currently dictate how we comply with the standards and recommended practices—SARPs—adopted by the International Civil Aviation Organization under that convention.

Again, the best outcome is for the UK to leave with a negotiated deal, and delivering that deal remains the Government’s top priority but, as a responsible Government, we must make all reasonable plans to prepare for a no-deal scenario. The instrument maintains the existing regulatory framework and technical requirements for air traffic management to ensure the continued provision of efficient, safe air navigation services and the effective regulation of the UK air traffic management system, as well as to maintain interoperability between the UK and the EU after the UK exits the EU. This instrument also ensures that in the event of a no-deal exit from the EU, the UK has effective regulatory arrangements for the UK’s air traffic management system and that the aviation industry—in particular, the CAA and NATS—has clarity about the regulatory framework which would be in place in that scenario. I beg to move.

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My Lords, no SI better epitomises the efforts of the Government to force us into splendid isolation. Anyone who has studied history at any time will remember that 19th-century concept of British diplomacy—which got us precisely nowhere in the end.

Modern air traffic management is based on a complex network of international treaties, organisations, protocols and rules that has built up over many years in the interests of safety, efficiency and limiting the environmental impact of aviation. I welcome the fact that just for once, under the section in the Explanatory Memorandum on consultation, there is reference to a specific view of stakeholders. It might have been a limited consultation, but we have a report that they want continuity of the regulatory framework—well, of course. Despite this, this SI is full of efforts to shoehorn the necessary changes into the existing approach. However much there are attempts to continue as normal, there will be significant changes.

There are several issues I want to raise. First, paragraph 7.3 of the Explanatory Memorandum states that some powers now held by the EU will come to the Secretary of State and some to the CAA, but air navigation services delivered by more than one state are simply being removed by this SI. Surely this will lead to a dangerous lack of co-ordination. Will the Minister explain what will happen in that yawning gap once the EU powers are removed?

Paragraph 7.9 states:

“The UK will remain a contracting State of Eurocontrol”.

Eurocontrol is an intergovernmental organisation regulated by the EU. I realise that membership of this organisation is essential for the interoperability of air navigation systems, but I was quite surprised to see that we are going to remain a member, given that the EU has powers over it. Has the Minister explained this to her colleagues who are in favour of leaving the EU? The compromise appears to be that we will accept the rules of Eurocontrol, but will be unable to participate in its governance. That seems a pretty poor deal, but I appreciate that we have no choice but to remain a member.

I have a question on functional airspace blocks, or FABs. They do not follow state boundaries, and we share an FAB with Ireland. My recollection is that a large proportion of Atlantic air traffic passes through that FAB. After Brexit, we will have no legal basis to participate in the FAB and in future, any involvement —so the Explanatory Memorandum states—will be discretionary. However, there is no word in the EM about what the Government would like to do. Is it their intention to try to remain a member of the joint functional airspace block with Ireland, and will leaving it be something they do only unwillingly, if forced? There is nothing in the Explanatory Memorandum about Ireland if we cease to participate. We are looking here at the splintering of the co-ordination on airspace functioning, and I believe that it would have a very serious impact on Ireland if we ceased to participate.

I want to ask a question simply for information, on the sharing of civil and military airspace to increase efficiency. Can the Minister explain how it works at the moment? Is it done on an international or a purely national level? I realise that the plan is that in future, the CAA will co-ordinate it on a national level but I am interested in knowing how it operates at the moment.

I turn to the single European sky legislation. Paragraph 7.26 of the Explanatory Memorandum refers to EU funding to facilitate the delivery of certain common projects. Can the Minister explain more to us about the project that is under way at the moment? What is the value of the pilot common project that is referred to? It commenced five years ago and I am led to believe that it might be intended to go on until as late as 2024. Who is involved and what do the Government plan to do in future to advance interoperability? How much money are we talking about as our allocation for this project?

Finally, I emphasise that to my mind there are strong themes common to this and the previous SI. There is a crucial impact on safety. When we co-ordinate with others, we maximise safety. Anything that reduces that co-ordination also reduces our safety, and I regret that this SI has had to be brought today.

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Again, I thank the Minister for explaining the purpose of this SI. As before, some of the points that I wanted to raise were touched on by the noble Baroness, Lady Randerson.

The first relates to paragraph 7.3 of the Explanatory Memorandum, to which the noble Baroness referred—particularly the reference to,

“pan-European functions including ANS delivered by more than one State … being removed”.

I, too, would like to know the actual impact of that. Does it compromise safety in any way, and what does it mean in practical terms from our point of view as a nation?

Paragraph 7.9 refers to Eurocontrol, which it says is,

“an intergovernmental organisation that provides some ANS for its member States”.

It says:

“It is not an EU body but it has been designated as the”,

single European sky,

“Network Manager and is regulated by the EU where it provides services to EU Member States. The UK will remain a contracting State of Eurocontrol after it leaves the EU and will still be able to receive its services as a contracting party to the Eurocontrol Convention”.

Can the Minister explain the exact impact of that on us, bearing in mind that it is designated as the single European sky network manager and we will no longer be part of the EU? What does it mean for us as far as regulation is concerned? Presumably it does not leave everything exactly the same as it is now, but at the moment I am struggling to identify precisely what the change might be. Any assistance that the Minister can give on that will be appreciated.

Paragraph 7.12 talks about the network manager role. It says:

“These functions pre-date the EU exercising its competence for ANS and the UK would still be able to access Eurocontrol’s wider network management role as a contracting State of the Eurocontrol Convention”.

However, it then says:

“This instrument will amend the preserved SES Legislation relating to airspace in an operable form, but the UK will be unable to participate in EU governance arrangements of the SES Network Manager”.

What will our Government’s arrangements for the network manager be? If Eurocontrol is the SES network manager and that no longer applies to us, am I right in saying that we have to set up some sort of similar arrangement, or have I misunderstood exactly what this means and what its implications are?

As the noble Baroness, Lady Randerson, has already said, paragraph 7.13, which talks about functional airspace blocks, refers to the fact that the UK formed an FAB with the Republic of Ireland in 2009. Paragraph 7.14 then goes on to say:

“The legislation establishing FABs will not be retained in the SES EU Exit Regulations. As a non-Member State after exiting the EU, the UK will have no legal basis to participate in a FAB”.

My question is not dissimilar to that posed by the noble Baroness, Lady Randerson. I simply ask: if we are no longer able to participate in an FAB but have one with the Republic of Ireland, what will the impact of this be on 29 March under a no-deal Brexit? What exactly does it mean and what are its implications? Do we have an FAB only with the Republic of Ireland or do we have a number of others and, if so, what is the impact on, or implication for, those further FABs?

The document also refers in paragraph 7.16 to changes being made in the SI,

“so that the Member State functions in the regulation are retained and instead carried out by the CAA who will now oversee the implementation of the regulation”—

that is, these regulations. Bearing in mind that it specifically refers to a change being made in the SI, is this the only such change of significance in it or are there others that perhaps might not have been highlighted in the same way?

Paragraph 7.19, on the subject of ATM safety, refers to the fact that the,

“SES Legislation relating to safety forms our current mechanism … so that legislation will need to be preserved in UK law in an operable form to maintain continuity in safety. In doing this we are giving some oversight functions to the CAA which were previously for EASA”.

Am I right in saying that this means an additional interface on safety issues? If I am right, does the Minister agree that that is hardly a desirable development, since the more interfaces you have over safety, presumably potentially—I stress “potentially”—the more difficult safety issues can become? It would be helpful to have the Minister’s comments on that issue.

The Minister referred in her introduction to the SESAR programme, which is the single European sky air travel management research programme. Paragraph 7.25 of the Explanatory Memorandum says that,

“the SESAR Joint Undertaking (SJU) was set up under a Council Regulation to manage”,

the research and development programme. The paragraph goes on to say:

“As the UK will no longer be able to participate in the SJU after leaving the EU the Council Regulation setting up the SJU will be revoked”.

What exactly are the potential consequences of this as far as research and development are concerned? I believe the Minister said that we have played an active role within it. Will we inevitably be able to play only a less active role? From our point of view, is there likely to be less involvement in research and development programmes?

Perhaps the Minister can confirm—I am sure there will be no difficulty, since the Minister in the Commons has already said so—that on SESAR funding, if there is a no-deal exit the Government will underwrite what would have been paid to the UK under the current arrangements, to provide certainty and continuity for those involved. Paragraph 7.26 indicates that the pilot common project will continue, saying that there will be,

“legislation to require UK project participants who have been implementing it since 2014 to complete the delivery of projects which will maintain interoperability with the UK’s neighbouring States”.

Presumably, the fact that it refers to one project suggests that withdrawing in this way means that there will be other projects with which we will not continue, or will not get involved when they commence. Perhaps the Minister could confirm whether I am right; that hardly seems a desirable situation.

I turn to paragraph 10 on “Consultation outcome” and ask once again: were the trade unions involved in the consultation? References are made to various stakeholders. I do not know whether that includes the trade unions but, again, I would like to know the answer to that question. The noble Baroness, Lady Randerson, mentioned that the consultation paragraph refers to a view among stakeholders supporting,

“continuity in terms of the regulatory framework for ATM after the UK leaves”,

the European Union. The paragraph ends:

“The preparation of the instrument also takes account of representations from operational stakeholders on the impacts of the UK leaving the EU or ATM and ANS including from NATS, the UK’s en route air traffic services provider”.

Can the Minister tell us what those representations were? Were they simply representations in relation to continuity or were other matters taken into account in preparing this instrument? If so, in what way does the instrument reflect those further representations?

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I thank noble Lords for their consideration of these draft regulations and turn to some of the questions raised. On participation in the UK-Ireland functional airspace block—the FAB—it is currently the only FAB we are part of but, in the event of no deal, there would be no legal basis for the UK to continue to participate in it. Nor could we compel Ireland to be part of it, so we have not been able to retain this part of the single European sky legislation in the SI. There is a possibility that EU states could involve neighbouring third countries in their functional airspace blocks and future UK involvement as a third country would be discretionary.

Co-ordination and co-operation with Ireland will of course continue, as both states are members of the international inter-government organisation Eurocontrol and, indeed, ICAO; both the UK and Ireland are delegated by ICAO to provide air traffic services in parts of the north Atlantic. The noble Baroness is quite right to point out that 80% of traffic entering or leaving the EU from the north Atlantic flies through that airspace, so it is imperative that we work together on this.

We must make sure that our air traffic management continues to operate with that of the EU. We will keep the legislation under review on an ongoing basis; we do this already and will continue to do so after exit day. This will make sure that we meet our policy objectives, as well as our legal obligations, and that the airspace remains interoperable with our neighbours. The powers transferred could be used, for example, to comply with the international obligations set out by ICAO. ICAO rules govern the global air traffic management network; the noble Baroness, Lady Randerson, is quite right to point out its interconnectivity.

We need to make sure that our own air traffic management arrangements remain interoperable with the rest of Europe; that is why we will continue to align with ICAO’s standards and recommended practices and, potentially, some EU regulations. In many cases, it is likely that we will need to continue to follow these rules to ensure that UK airspace functions with that of our neighbours. But that will not necessarily always be the case. As ICAO updates its SARPs, the UK will need to update its own regulations. These will be subject to the UK air traffic management regulations, which are under the negative resolution procedure.

EU funding has been available and, indeed, granted to UK industry for the deployment of SESAR technologies. Those funding arrangements fall under other EU regulations for the single European sky and the UK will not be able to participate in them if we leave the EU without a deal. The funding was made available through the Connecting Europe Facility—CEF—to help industry deploy SESAR technologies. UK stakeholders received over €130 million in grants for work on air traffic management between 2015 and 2016. I am happy to take the opportunity provided by the noble Lord, Lord Rosser, to confirm that the Government have guaranteed to cover any loss of EU funding granted to the UK. That means that any funding that companies were due to receive will be paid to them through the Treasury.

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What is the figure likely to be that the Government will have to underwrite?

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I am afraid that I do not have a specific figure. Future funding is under consideration as part of our wider airspace modernisation project. That will be looked at through the CAA, which has a contingency fund for airspace modernisation costs, including the deployment of new technology.

It is important to reiterate that the safety of airspace will not be jeopardised after we leave the EU. This SI, along with the aviation safety SI which has been laid and will be debated in the coming weeks, will ensure that we have the same high safety standards. Air traffic controllers will continue to be licensed by the CAA and relevant EASA regulations will be saved in national law to ensure that those safety standards remain.

On the pilot common project, UK industry has been involved in the governance to shape the scale and costs of SESAR deployment projects. The future deployment of new technology would need UK legislation under the Civil Aviation Act 1982.

The noble Baroness, Lady Randerson, asked about military and commercial use. The military is excluded from the single European sky legislation. The flexible use of airspace is about using airspace reserved for the military when the military does not need to use it. It is not strictly about regulating the military, as such, but rules will be transferred into UK law through the statutory instrument which will continue to oversee them.

NATS is currently the UK’s en route air navigation services provider and will continue in that role; there will be no difference. On the question of what will replace the SESAR programme when the UK leaves the EU, the level of participation in SESAR remains a matter for negotiation. We firmly believe that it is in the best interests of the UK and indeed of the EU to maintain close co-operation, but it is likely that UK industry will no longer be able to receive EU funding for SESAR deployment. As I said, the Government have committed to cover the costs of that.

I hope that I have answered all the questions. If I have missed any, I will follow up in writing. This SI, and others to be debated in the coming weeks, are a key part of ensuring that we have a functioning statute book for aviation should we leave the European Union without a deal. It will make sure that, in the event of no deal, the UK has effective regulatory arrangements for our air traffic management system, and that the aviation industry, the CAA and NATS, have clarity about the regulatory framework.

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My Lords, I do not think that the Minister answered my noble friend Lord Rosser’s question on this instrument, or the previous one, about consultation with the trade unions. As she is aware, I am the vice-president of BALPA.

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My apologies for not answering that question. We meet BALPA regularly to discuss a variety of issues, including Brexit. I cannot recall discussing this specific SI with BALPA but it is incredibly important that, as we develop these SIs, we take into account industry’s needs, our regulators’ needs and of course trade union needs.

Motion agreed.