Considered in Grand Committee
My Lords, these draft regulations will be made under the powers conferred by the European Union (Withdrawal) Act 2018 and the European Communities Act 1972. Unlike our two previous SIs, some provisions in this instrument will be needed if we leave without a deal, but specific provisions relating to an enforcement power are needed regardless of the outcome of EU exit negotiations.
The regulations amend EU Regulations 437/2003 and 1358/2003 and seek to maintain the status quo with regard to the provision of data by operators of airports served by commercial flights. This is achieved by making technical changes to ensure that retained legislation continues to function, including amending redundant references to the UK being a member state. A further part of this instrument, made under the European Communities Act 1972, also creates a mechanism to enforce the obligation on airports to provide data, because there is currently no penalty if an airport does not comply.
This SI was proposed as a negative instrument, but we have accepted the Secondary Legislation Scrutiny Committee’s recommendations to re-lay it using the affirmative procedure, acknowledging its concerns around the potential impact of these changes on commercial airport operators. I thank that committee for its consideration of this SI.
This draft instrument amends two pieces of EU legislation. The first of those is EU Regulation 437/2003, referred to as the statistical returns regulation, which requires operators of airports served by commercial flights to provide their member state with specified statistical data. In its existing form, the regulation specifies information that must be compiled by the member state—a function completed by the Civil Aviation Authority. It also requires that the same information must be provided to the European Commission’s statistical office, Eurostat. It further sets in place standards that must be met during the compilation and submission process. Secondly, it amends EU Regulation 1358/2003, referred to as the implementing regulation, which requires that the process set out in the statistical returns regulation is applied to a set list of airports and updates the list of statistical information that said airports must supply. The list of airports is effectively comprised of all airports that see commercial air traffic. This list included 46 airports across the UK at the point of its last update by the EU.
The withdrawal Act will retain both these regulations in their entirety. The draft instrument we are considering makes the changes necessary so that they continue to function correctly. That is essential to ensure that the regulatory regime in place continues to allow statistics on the total volumes of passengers and freight using UK airports to be compiled. The gathering of such data and the publication of derived figures are activities that are important for the Government, the public and the sector itself to be able to monitor performance.
This draft instrument amends the statistical returns regulation to remove the duty on the UK to continue to transmit this data to Eurostat. The power to collect statistical data and the obligation on respondents to provide that data are to be retained, with responsibilities for these functions given to the CAA.
This instrument amends the implementing regulation to remove the specific list of airports covered. This list is in fact superfluous, as the existing implementing regulation also contains a mechanism that sets the burden of data collection at different levels dependent on the volume of traffic seen by an individual airport. The mechanism will remain in the retained EU regulations, so that what is expected of airports will stay the same as it is now. The data collection power provided is an important tool for accessing data due to the competitive and commercially sensitive nature of the sector. As such, it is important that this legislation continues to operate after the UK has left the EU.
During the preparation of this instrument, a review of the statistical returns regulation highlighted the requirement for an enforcement mechanism in this instrument to meet the UK’s responsibility as a member state. This is why the SLSC recommended this instrument be upgraded. This instrument therefore provides a mechanism whereby the CAA can enforce the obligation on airports to provide the data specified. In determining the penalty, enforcement mechanisms in similar pieces of legislation were considered so as to not go beyond prior precedent. Consequently, the department decided to match the enforcement powers that exist within the Airport Charges Regulations 2011, with a civil penalty of up to £5,000. This part of these regulations is required regardless of final decisions on the UK’s future relationship with the EU. As I say, it is there to meet our responsibility as a member state.
The best outcome for the UK is to leave the EU with a negotiated agreement, but this instrument ensures that, in the event of a no-deal exit from the EU, statistics on the total volumes of passengers and freight using UK airports can continue to be compiled and published. I beg to move.
My Lords, I shall be quick. I note that in paragraph 7.2 of the Explanatory Memorandum, the Government think that,
“The gathering of such data … of derived figures are activities that are crucial for Government, the public and the sector itself to be able to monitor performance”.
However, paragraph 7.7 suggests it is no longer appropriate for any of these statistics to be given—they can be given to the Secretary of State, if he so directs—to anybody else in Europe. Why is that? Would we not want data from there? Would it not be helpful for our ongoing air services between the whole of the European Union and the UK if we exchanged this statistical data? Or will we put a ring around ourselves and pretend that Europe does not exist? Surely it would be useful—and the Government say it is useful. Why is no mention made of the CAA being able to share this information with the relevant European body?
My Lords, airport operators currently provide their statistics to the CAA, which passes them on to Eurostat. This is to be replaced, according to this SI, with a system whereby airport operators give the information to the CAA, which then provides that data to the Secretary of State if directed—not by legal obligation but if directed.
There are four problems with the SI. First, statistics collected on a national basis are much less useful and meaningful than international statistics. As the noble Lord said, there is no guarantee that this information will be shared internationally.
Secondly, there is no obligation on the Secretary of State to even want to see the statistics. What will he do with them? There is no obligation on the Secretary of State to publish them. Therefore, one has obvious concerns about transparency. Statistics should be important for the Government; they are certainly important for the public and the industry itself to monitor performance. The CAA already collects this data, but it will be of much less use for comparative purposes as matters stand in the SI.
The third problem is the impact of changing rules on exactly how the data is expressed and collected. This is the kind of internal thing that happens in any organisation. If you change the order of the questions or one or two words in the questions, you impact the results. It does not matter that much if you are looking across the piece and everyone is obeying the same rules, but we will be collecting our data on a different basis. I more or less guarantee that, within a year or two, we will be told that our data is no longer comparable because of differences in collection procedure.
Finally, there is the new power of the CAA referred to in the SI to impose a £5,000 fine if an airport does not provide data. I am not entirely clear about this, and I would be grateful if the Minister could clarify. I believe that this is a new power; I am not sure that the CAA has it at the moment. If it does, what is the fine, because £5,000 seems derisory as a fine on a large organisation for failing to provide data? It would cost Heathrow Airport or Gatwick Airport a great deal more than £5,000 to collect the data, so there would be an incentive not to bother. Where does £5,000 come from? Has it been thought through as a penalty that should be paid by a large commercial organisation? It does not seem worth it.
My Lords, the points made by my noble friend Lord Berkeley and the noble Baroness, Lady Randerson, are exactly right. I look to the Minister to answer them. I can see why we would want to avoid an obligation, but I cannot for the life of me see why we would not want voluntarily to co-operate with Eurostat. This obviously is a wider question for government as a whole, but in an open society we have to believe that sharing information is a good thing, not a bad thing.
I formally object to the £5,000. It clearly is not within the spirit of the withdrawal Act and therefore the Minister has not prayed that Act in aid but has prayed in aid the draconian European Communities Act 1972. I was not here in 1972 and I have not recently brushed up on the detail, but that Act was created to implement European law. This is not creating European law; it is smuggling in a little correction. I am not going to cause a constitutional crisis by objecting to it, but the Government should not have done it.
I thank noble Lords for their consideration of these draft regulations.
On the gathering of statistics, Eurostat oversees the European statistical system, which is comprised of EU member states and selected other countries which are not member states. Work is ongoing to determine our future relationship with the European statistical system; that is being led by the UK Statistics Authority and is subject to ongoing negotiations. Of course, sharing information brings many benefits. We will continue to participate in other statistical work in aviation through ICAO and, specifically, its aviation data programme. Although Eurostat publishes statistics based on the aviation data currently collected, this was always in duplication of the figures published by the CAA. We will continue to publish the statistics arising from the data collected and they will continue to be in the public domain. We expect to have a future relationship with Europe on data collection.
Air transport data collection is only one part of the transport data currently compiled. As I said, the Office for National Statistics has been carrying out a cross-government review on all of this. While other statistical collections were assessed as being able to continue on an existing basis, in the event of no deal we needed to bring forward the SI on this matter.
I understand the noble Baroness’s point about changing the categories and the way we collect this data. Of course, in order to make it as useful as possible, having as much consistency as possible with Europe and countries across the world is important. We do not plan to change any of the categories. We are carrying over into law what is there at the moment. Should things change in the future, whether at an international or a European level, it would of course make sense to ensure that we have continuity.
On the enforcement mechanism, the noble Lord, Lord Tunnicliffe, was not here in 1972—and I was not born in 1972—but the European Communities Act 1972 gives us the power to implement EU obligations. This is the kind of thing that the ECA provision is intended for. It is a civil penalty rather than a fine, and the Airport Charges Regulations 2011, on which the enforcement scheme and the £5,000 amount were based, are made under Section 2 of the ECA to implement a directive. It was an oversight that we did not already have a mechanism to ensure that airports reported this data; other member states do. It is an obligation on us under these regulations and there are precedents around it. There is a penalty of up to £5,000 for airport users who do not notify airport operators of their forecasts in a timely manner, for example.
I take the noble Baroness’s point that this is not an excessive amount for airports. Historically, airports have provided this data in a timely manner. It is in their own interests as well as everybody else’s. There has never been a serious case of non-response, and we do not expect there to be if we leave the European Union without a deal. It is an important tool for accessing data from across airports, so we are confident that airports will continue to comply. However, we now have the enforcement mechanism that we need on the obligations from EU law. That is why, in the event of an agreed deal, this part of the regulation will remain. Following the UK’s departure from the EU, we will need to maintain that enforcement mechanism.
In the event of no deal, this SI will also ensure that the UK’s legal framework for the collection of statistical data will continue to be fully functional and enforceable. The regulations ensure that the collection of this important data has a sound legal basis to continue, while removing the requirement on the UK to provide this data to the European Union, as we will no longer be a member state. However, as I said, we fully expect to work very closely with our European partners in the future, regardless of the outcome of the negotiations. I beg to move.