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House of Lords Hansard
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Aviation Noise (Amendment) (EU Exit) Regulations 2019
12 March 2019
Volume 796

Considered in Grand Committee

Moved by

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That the Grand Committee do consider the Aviation Noise (Amendment) (EU Exit) Regulations 2019.

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My Lords, the draft regulations will be made under the powers conferred by the European Union (Withdrawal) Act 2018 and will be needed if the UK leaves the European Union in March without a deal.

The regulations make amendments to domestic legislation and a directly applicable EU regulation that relate to aviation noise certification and the process for when operating restrictions are considered at airports. The first of those is the Aeroplane Noise Regulations 1999, which were made to implement in UK law EU obligations relating to noise certification requirements in relation to propeller-driven and civil subsonic jet aeroplanes. The noise regulations prohibit certain aircraft taking off or landing in the United Kingdom without an in-force noise certificate issued by the UK, or a competent authority of the state of registry recognised by the UK.

The Air Navigation (Environmental Standards for Non-EASA Aircraft) Order 2008, also known as the environmental standards order, would also be amended by this SI. It sets out the environmental standards relating to noise and emissions of specific UK-registered aircraft that are not subject to the basic EASA regulation—Regulation EU 2018/1139—and regulation by the European Aviation Safety Agency. These regulations apply largely to light and microlight aircraft.

Thirdly, the regulations would amend Regulation 598/2014, commonly known as Regulation 598, which establishes the rules and procedures with regard to the introduction of operating restrictions at certain airports based on a balanced approach to noise management—an agreed International Civil Aviation Organisation principle since 2001.

Finally, the regulations would also amend the Airports (Noise-related Operating Restrictions) (England and Wales) Regulations 2018, otherwise known as the operating restrictions regulations, which appointed competent authorities for England and Wales for the purposes of Regulation 598. The withdrawal Act will retain Regulation 598 in its entirety in the event of no deal.

The draft instrument also makes the necessary changes to the noise regulations, the environmental standards order and the operating restrictions regulations to ensure that the legislative framework continues to function correctly after exit day. The noise regulations are being amended so that in the UK, the same noise certification requirements apply to aeroplanes registered in an EEA state as apply to other foreign-registered aeroplanes. In effect, this will end the automatic recognition of noise certificates granted in the EU and the EEA, ensuring that the same rules apply in relation to the recognition of noise certificates for all aircraft registered outside the UK. The requirements relating to certification of UK-registered aeroplanes are also being amended so that they apply only to use in the UK rather than in the EU and the EEA. The regulations apply to propeller-driven and civil subsonic jet aeroplanes, including light aircraft and commercial passenger aircraft.

The changes to the environmental standards order amend the terminology in that order so that it is aligned with changes made to aviation safety legislation on EU exit. For example, the instrument removes references to EASA. The amendments to Regulation 598 provide for functions conferred on member states under the regulation to be conferred instead directly on the Secretary of State and, where appropriate, on the Northern Ireland Department for Infrastructure or Scottish Ministers. This includes an obligation on competent authorities to inform the Commission and other member states when operating restrictions are planned to be imposed, and instead provide for a UK-based “relevant authority” to be notified in place of the Commission. It also places an obligation on the relevant authority, instead of the member state, to ensure a right of appeal.

The Commission’s power to adopt delegated acts providing for technical updates to the regulations to take account of changes to international rules is conferred instead as a power for the Secretary of State to make regulations subject to the negative resolution procedure.

The amendments to the operating restrictions regulations reflect an amendment to the title to Regulation 598 made by this instrument.

The best outcome is for the UK to leave the EU with a deal, but this instrument ensures that, in the event of no deal, there will be continuity of aircraft noise standards and certification. It ensures that the regulatory regime in place after exit continues to regulate properly noise certification standards for aircraft and that the framework for consideration of operating restrictions at UK airports operates effectively. I beg to move.

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My Lords, I am grateful to the Minister for that introduction. I have two questions. The first relates to the noise regulations and the assessment of the aircraft. It is difficult to see how we can have two different bodies coming up with different solutions, so I suspect that it will not be easy to reach agreement on how much noise an aircraft makes in certain circumstances.

My biggest worry is over the appointment of what is called a “competent authority” in paragraph 7.6 of the Explanatory Memorandum. It seems to me that the word “independent” could be added to “competent”. If we look at issues on operating restrictions, in the debates over Heathrow Airport and its third or fourth runway—or whatever it is called today—for whatever reason the Government have come out very strongly in favour of it and there are now, I think, several judicial reviews to challenge them. I cannot see how the Government acting as a competent authority, however competent they might be, can be seen to be independent of their policy, particularly in relation to Heathrow, saying they want this and are going to bulldoze it through under whatever circumstances. There are serious issues here about independence. When it was the European authorities, there was clearly independence. Now there is not, and given the particular status of Heathrow—in my view, it should be changed, but that is a completely different issue—I cannot see how this can satisfy members of the public, especially those who live under the flight path, that the Government can set operating restrictions and at the same time demonstrate that they are completely independent of their views on developing an extended airport for London. I will be pleased to hear how the Minister thinks the Government can wriggle out of those two conflicting requirements.

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My Lords, this SI concerns one of the most controversial and divisive aspects of aviation. I assure noble Lords that I have not been copying the homework of the noble Lord, Lord Berkeley, but I shall make much the same point. Heathrow protestors will be looking at this SI very carefully and with great concern. It relates to the mutual recognition of noise certificates across the EU and the end of that system as it applies to the UK. From exit day, aviation safety legislation in the UK will be independent of EASA. EU Regulation 598 requires member states to appoint a “competent authority” to ensure rules are followed. That includes a balanced approach to noise management, and noise problems are supposedly to be addressed in a cost-effective way.

The balanced approach to noise management includes reduction of noise at source, the use of land use planning and management, noise abatement and operational procedures and operating restrictions. In future, who applies these rather vague and subjective principles, which are counterbalanced by cost effectiveness? It will be the Secretary of State. I had imagined the same scenario as the noble Lord. Promises have been made on noise abatement in relation to Heathrow that many experts believe will be very difficult—indeed, impossible—to achieve. The Secretary of State is the champion of the scheme and in any decision is bound to come under pressure to agree that the rules have been applied effectively, because it is a subjective judgment. There will be no back-up from international standards applied across the EU. There will be no international case law on an EU basis. There will be no EU comparisons to be made. I predict that the Secretary of State would be likely to buckle under pressure to agree the scheme for Heathrow no matter what the objections on noise grounds might be, but whatever happens it will be a highly controversial and highly political decision as opposed to one that would, under EU rules and processes, be taken slightly more objectively.

This SI once again preserves existing standards, but there are no guarantees in it that more stringent standards will be applied as aviation technology and quieter planes develop. I am very concerned that there are no guarantees that we will keep up with EU improvements, because this Government’s record on the environment is, quite frankly, abysmal. This SI opens the door for heavily political decision-making and for stalling environmental standards.

On consultation, we once again have the magic words that “specific meetings and workshops” have been held and that “long-established stakeholder forums” have been consulted. There has been no public consultation on this, so there has been no opportunity for the community groups established around most airports—most airports try to work with their local communities—to be aware that this SI was being put forward and to look at the its disadvantages. It is not just community groups; I wonder how many local authorities that have an aviation noise issue in their midst are aware that this SI is coming forward. I doubt that they are.

I very much hope we will have some agreement with the EU that makes it possible to have a more transparent and more far-sighted approach to aviation noise in future, but as it stands I find this a really retrograde step.

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My Lords, I will not repeat at length the points made by my noble friend Lord Berkeley and the noble Baroness, Lady Randerson. I broadly agree with them and will certainly be listening with care to the Minister’s response. I do, though, come back to the issue of the Secretary of State exercising his powers. We got a clear answer on the previous SI that, in exercising his powers under that statutory instrument, he would consult the CAA. We need something a good deal more complex for this issue because noise is quite different in character from safety. Realistically, a member of the public does not have a useful or valid opinion about airline safety issues, but on noise a member of the public is exactly who it is all about. The issue is about communities around airports.

There are two areas that I would like the Minister to expand on. First, from what parts of government will the Secretary of State receive advice in exercising his powers? Secondly, I would like an assurance on matter of consultation. As far as I can tell, the statutory instrument seeks as far as possible in this nightmare scenario to maintain the status quo, but any changes to these regulations that the Secretary of State makes—using, once again, the negative procedure—will affect the general public in all the communities around airports, and of course there are also the additional issues of practicality, cost and so on. This is a difficult and complex political subject, so we need assurances that at any time in the future when the Secretary of State uses his powers under this instrument, he will conduct a full consultation to get all proper inputs to the decision-making.

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I thank noble Lords for their consideration of this statutory instrument. The regulations do not set noise policy; noise standards for aircraft are set by ICAO and we will continue to follow them.

On the point about the competent authority, last year we laid regulations that appointed competent authorities in England and Wales. The implementation provides for the local planning authority to be the competent authority when an application for any change is brought under the Town and Country Planning Act, but it also allows the Secretary of State for English airports or Welsh Ministers for Welsh airports to be the competent authority for called-in applications. Therefore, that matter is slightly separate from this SI.

The noble Baroness mentioned the balanced approach. Regulation 598 requires the competent authorities to take account of the balanced approach, and that requirement is kept by this SI. It will ensure that the balanced approach consists of identifying noise problems at specific airports and giving consideration to various measures that might be available to reduce noise. That is being carried over in its entirety.

Expansion at Heathrow is conditional on a package of mitigations. The NPS makes clear that noise mitigation measures should be put in place to ensure that the impact is limited. Again, that is going through the planning process following the judicial review process. We of course recognise that aviation noise is a key concern for communities living near airports. I regularly meet community groups and MPs to discuss this. We have played a leading role at an international level in relation to noise standards, and we will continue to promote further improvements in this area.

This SI does not change noise policy; it is concerned only with corrections as a result of EU exit. It does not impose restrictions; it is just a framework. We are consulting more widely on our noise policy, which we set at a national level through the aviation Green Paper consultation which we published in December. In that, we set out a number of policies designed to reduce noise and its impact, and that is how we will set our noise policy in future.

On consultation, in 2017 we consulted on proposals for appointing competent authorities, and the Scottish Government conducted a consultation on their proposals earlier this year. However, we have not consulted communities on this. The changes in Regulation 598 will not have a direct impact on overflown communities. They will ensure that the correct procedure is followed when operating restrictions are considered or it is proposed that they be imposed, but they will not change things for communities per se. As I said, that is being dealt with through the aviation strategy consultation.

There is a delegated power which provides for the Secretary of State to make secondary legislation under the negative procedure. It is about providing technical updates to the regulations, but again that power is limited to such updates to the noise certification standards and methodology indicators relating to the assessment of noise impact at an airport. Again, those updates are limited within the regulations to account for changes to relevant international rules.

As with the previous SI that we discussed, we will continue to follow the international rules. We have been leading the way with our noise policy and are suggesting further measures to improve it through the consultation. We will publish our final aviation strategy later this year, which we hope will address the understandable concerns of communities around the airport. However, that noise policy is not directly relevant to the SI we are discussing, which simply ensures that in the event of a no-deal exit from the EU there will be continuity of aircraft noise standards and certification and of the process when operating restrictions are considered at airports.

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Perhaps I may press the Minister a little further on the competent authority. I think she said that the competent authority for Heathrow would be the Secretary of State, but I recall that over the past 30, 40 or 50 years, Ministers of different persuasions have had a major influence on what happens at Heathrow. It does not matter which party has been in power; a Minister either likes it or does not like it. There is a perception that these Ministers have encouraged studies, shall we say, or other independent work to support their particular opinion. I suppose that is part of the political process for Heathrow, but nobody will have any confidence if a Secretary of State is promoting very hard an expansion of Heathrow while being the competent authority in deciding whether the noise is too great or too little, or whatever. I appreciate that this SI—

Sitting suspended for a Division in the House.

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I was just concluding. I wanted to note that, as we all know, this SI will come into force only if there is a hard Brexit. However, it would be good to have the Minister’s assurance that, depending on the type of Brexit we have—if there is no Brexit, it will not matter, but it will matter if there is some type of Brexit—if and when she brings these regulations back again she will take into account the question raised by several noble Lords about the competent authority and independence when it comes to Heathrow and perhaps other airports as well.

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I understand the noble Lord’s point, but competent authorities will not be appointed by this SI. That was done last year following extensive consultation. As I said, that role was to follow the balanced approach of ICAO. Article 3 of Regulation 598/2014 requires competent authorities to be independent.

Of course, the Government and the Secretary of State are allowed a position on airport expansion. They are very clear on the benefits that expansion at Heathrow will bring. That will have an impact, which is why we set out lots of requirements in the national policy statement. The Secretary of State is not deciding on the planning process; that is being done through the independent planning process, as is right.

Under Regulation 598, the appeal route is broadly aligned with the planning process, so there may be scope to challenge any local planning authority’s decision related to operating restrictions. That is the appeal process under the Town and Country Planning Act 1990. For all other cases, including where the Secretary of State was the decision-maker, judicial review would be the appropriate route for challenging that decision. There is independence there on the granting of planning permission and the appeal route.

As I said, I very much understand the impact aviation noise can have on communities. As Aviation Minister, I am alive to it, which is why we suggested many new noise policies in our consultation on the aviation strategy. This SI is purely about the regulatory framework and will ensure the continuity of aircraft noise standards and certification and the process for considering operating restrictions at airports in the event of no deal. Noise policy is covered extensively elsewhere.

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Will the Minister address the issue of the nature of the consultation? Did any of the meetings, workshops and long-established stakeholder forums include local authority representatives or representatives of community groups established across the country by airports?

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For this SI, they did not because the communities are not going to be affected by it. We consulted when we were appointing competent authorities because that will affect them. That was properly consulted on in 2017 ahead of those regulations coming into force. We did not consult on this SI because we do not believe that it is going to affect communities. It is purely about transferring the regulatory framework and not about the noise or competent authority policies. We are having a full consultation now on our aviation strategy after setting out some policy positions. We will certainly meet community groups; we are meeting community groups and will continue to meet them as the consultation evolves and the strategy develops.

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My Lords, the Minister is right that there is no change in policy but, as I understand it, there is a change of the organisation or person who is the competent authority. It is now the Secretary of State and before it was somebody from one of the European organisations. There is a change and that introduces a conflict of interest.

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There is a change, but to the relevant authority not the competent authority. The competent authority is staying the same. Competent authorities were consulted on and set in the previous regulations. Under current EU law, they have an obligation to report operating restrictions to the Commission. Instead, under this SI they will have an obligation to report operating restrictions to the relevant authority. In some cases, that will be the Secretary of State, in others, it will be the Scottish Government. I do not believe there is a conflict of interests because the competent authority remains the same; it is purely who it reports to that will change. There are the same reporting obligations but just to a different person.

Motion agreed.