1: Before Clause 1, insert the following new Clause—
The Secretary of State must exercise his or her functions under this Part in accordance with the general duty under section 1 of the Transport Act 2000.”Member’s explanatory statement
This amendment would require the Secretary of State to exercise functions in respect of airspace change proposals under this Bill in accordance with the Secretary of State’s general duty in respect of air traffic services provided for by the Transport Act 2000.
My Lords, in moving Amendment 1, I shall speak also to the other amendments in my name in this group. Amendment 1
“would require the Secretary of State to exercise functions in respect of airspace change proposals under this Bill in accordance with the Secretary of State’s general duty in respect of air traffic services provided for by the Transport Act 2000.”
Amendment 10 is complementary to this amendment.
Amendment 2 would ensure that
“the Secretary of State must, before making a direction requiring a person to progress an airspace change, consider representations from persons involved in airspace change and be satisfied that the direction is necessary to deliver the CAA’s airspace strategy and is reasonably practicable to comply with.”
Amendment 5 would ensure that, before making direction requiring a person to co-operate in an air- space change, the Secretary of State must consider representations from persons involved in airspace change and be satisfied that it is reasonably practical for the recipient of the direction to comply with it.
Amendment 8 would align the test for the variation of the direction with that applicable to making a direction. Amendment 9 would require the Secretary of State to publish reasons for any direction to progress or co-operate in an airspace change proposal or variations or revocations of such direction made under this part. Amendment 11 would make the Secretary of State responsible for the implementation of the CAA’s airspace strategy and related reports.
Amendment 13 concerns the report on general aviation. General aviation—this was the case in my day, which is now some decades ago, but I think it still persists—particularly light general aviation, is essentially where all our airline pilots are initially trained; that is how they come into the profession and so on. It is important that it is properly facilitated with respect to airspace changes and development. Fortunately, from conversations with the Minister, I believe that she shares that view, and I hope that, in her response, she will set out the Government’s support for general aviation and how its interests will be taken account of in the developing airspace debate. Hopefully, this will leave general aviation properly provided for and, almost as important, feeling that it has been properly consulted in the development.
In summary, this group of amendments seeks to clarify the role of the Secretary of State. The Secretary of State has a role that is related to the CAA in various processes. It is not entirely clear who is in charge. The Bill as written gives the Secretary of State and the CAA the powers to achieve airspace change, but it is not clear who is actually responsible for getting it done. I would like to hear from the Minister that it is clear that the achievement of improvements and a new airspace capability is down to the Secretary of State, answerable to Parliament, and that his relationship with the CAA may be a partnership but he is the person in the partnership who is held accountable for execution and success.
The rest of the amendments are about requiring appropriate relationships between the parties and the Secretary of State. I beg to move.
My Lords, I support the Bill, but I must use this opportunity to say that it is a bit of a mess. That is not surprising, because it has such a long history: the Bill itself is the result of attempts over several years to get legislation of this nature, and of course we had the Committee stage over a year ago.
Since then, there has been a dramatic reversal in the fortunes of the aviation industry—one that we would never have foreseen at the time when we spoke about this last. The impact of coronavirus has undermined all branches of aviation. In addition, of course, since we last spoke we have left the transition period following Brexit, but we are still at the point where we have to adhere to international norms and regulations.
We certainly support the amendments. They are designed to ensure that, when aviation modernisation takes place, the change comes in a realistic and careful manner, and that where the overall cost for an airport is concerned, it receives appropriate compensation if there is a detriment to it. The Airport Operators Association has suggested that the Government need to stimulate the modernisation process by funding the first stage of modernisation, and I would be interested in hearing what the Minister thinks of that proposal. The association also remains concerned about the breadth of the powers that this Bill would give the Government in order to release controlled airspace, to ensure that controlled airspace is released by airports.
There is a clear tension here between the needs of general aviation—I fully appreciate that general aviation itself is not a neat, simple category; there are many different strands to it—and commercial aviation, which is worth many billions of pounds to our economy. That is something that concerns airport operators; they are worried about the lack of limit to the Government’s powers. I shall be listening to the Minister’s response and hoping that she will reassure us about the manner in which the Government will use those powers.
My Lords, I am grateful to the noble Lord, Lord Tunnicliffe, for tabling these amendments. I hope to set out the Government’s rationale for why we believe they are not necessary. I do not expect to speak at length on all groups, but for this group specifically it is important to put on record some commitments that the Government are willing to make and the rationale for them. I will return to the financial concerns of airports, raised by the noble Baroness, Lady Randerson, in the next group.
Amendments 1 and 10 seek to require the Secretary of State and the Civil Aviation Authority to act in accordance with the general duty set out in Sections 1 and 2 of the Transport Act 2000 respectively. These duties apply only to the provision of air traffic services and set out various matters to be considered in the exercise of the relevant functions. This includes the words
“to secure that licence holders will not find it unduly difficult to finance activities authorised by their licences”,
which in effect refers solely to NATS (En Route) plc, or NERL, as the UK’s only licence holder. I understand that NERL would like to ensure that the specific duty on the Secretary of State and the CAA is considered when directing NERL with an airspace change proposal, or ACP. It is already a requirement for the Secretary of State and the CAA to consider any licence conditions relating to NERL’s role in airspace modernisation through the lens of its statutory duties under the Transport Act 2000. As with any proposed recipient of a direction, if the licence holder has financial concerns in progressing an ACP then we expect that the CAA’s oversight team will seek to assist in finding potential solutions, such as sharing costs or expertise with other airport operators or assisting the proposed recipient in applying for funding from other sources.
The noble Lord’s amendment would extend the duties of the CAA and the Secretary of State in the Transport Act 2000 to cover other sponsors of airspace change; for example, airports. Relevant duties already apply to air navigation functions which the Secretary of State directs the CAA to carry out. Section 66 of the Transport Act 2000 enables the Secretary of State to give directions to the CAA regarding air navigation, and Section 70 sets out the CAA’s general duty in relation to its air navigation functions.
The amendment would be likely to cause a legislative conflict because, when determining whether to make directions using the powers in the Bill, the Secretary of State will consider advice from the CAA. This advice will take into account how critical the airspace change in question is in contributing to overall airspace modernisation, and the ability of the proposed recipient to progress the change, including the proposed recipient’s financial and other resources.
I turn to Amendments 2, 5, 8 and 9. The purpose of Amendments 2 and 5 is to require the Secretary of State to have regard to representations made by any person involved in airspace change before issuing a direction in order to be satisfied that the direction is necessary to deliver the CAA airspace strategy and that it is reasonably practicable to comply with. Amendments 8 and 9 would require the Secretary of State to ensure that the same considerations applied if the Secretary of State varied a direction and that the reasons for the variation were published. I reassure noble Lords that appropriate conditions are already written into the Bill.
Clause 2(3) states that, before giving a direction, the Secretary of State must consult its proposed recipient. Clause 2(4) states that the Secretary of State may give a direction only if he or she is of the view that it
“will assist in the delivery of the CAA’s airspace strategy.”
Clause 3(2) states that the Secretary of State must consult both the proposed recipient of the direction and
“the person with whom co-operation would be directed.”
On Amendments 8 and 9, Clause 4 requires that directions, and any notice of variation or revocation, given by the Secretary of State under Clauses 2 and 3 are given in writing and are published. As with directions given under Clauses 2 or 3, any variation of a direction must assist in the delivery of the airspace strategy. We also expect the Secretary of State to consider how critical the ACP is and the ability of the sponsor to progress it. Before varying a direction, prior consultation with the relevant parties would be required. The same factors considered when giving a direction would be considered before varying or revoking a direction.
The requirement to consult before giving or varying a direction would inevitably require the Secretary of State to provide reasons for giving or varying a direction and to take advice from the CAA to ensure that the direction or its variation is required to assist in the delivery of the CAA’s strategy. We would expect the reasons for the direction, or variation or revocation, to be given and published alongside the direction or notice of variation or revocation, rather than in the direction or notice of variation itself, although the Bill is not prescriptive on that point.
In the unlikely event that a direction or variation were given where it was not reasonably practicable for the sponsor to carry it out, the sponsor would be able to use its right of appeal to the Competition Appeal Tribunal, under Schedule 1, if the decision was wrong on one or more of the following grounds; namely, if it was based on an error of fact or was wrong in law, or an error was made in the exercise of a discretion.
Amendment 11 would make the Secretary of State responsible for the implementation of the CAA’s airspace strategy. It would also require the Secretary of State to lay before Parliament a Statement setting out progress towards the implementation of the strategy within 12 months of the Bill being passed, and to lay further reports covering every subsequent 12-month period within six months of those periods ending.
The Civil Aviation Authority (Air Navigation) Directions 2017, issued to the CAA under Section 66(1) of the Transport Act 2000, directs the CAA to
“prepare and maintain a co-ordinated strategy and plan for the use of UK airspace for air navigation up to 2040, including for the modernisation of the use of such airspace.”
This places responsibility on the CAA for preparing the strategy, in consultation with the Secretary of State, and to report annually on the delivery of that strategy, which the CAA does through its airspace modernisation strategy—AMS. However, although the CAA and the DfT, as co-sponsors, are jointly responsible for the programme and for setting out the framework within which modernisation happens, airspace modernisation will ultimately be delivered by aviation stakeholders. Therefore, the legislation makes it clear that the CAA is required by the Secretary of State to prepare and maintain an airspace strategy and publish an annual report on it, and that the Secretary of State will hold the CAA accountable for this.
With regard to the requirement for the Secretary of State to lay before Parliament a Statement on the CAA’s progress against the strategy, as I mentioned previously, the CAA is already required to publish an annual report on progress against the AMS through the directions made by the Transport Secretary under the air navigation directions 2017. The latest report was published on 22 December 2020. It is worth noting that an amendment of this nature would widen the scope of the Bill, which provides the Secretary of State with specific powers with regard to airspace change proposals, not responsibility for the AMS as a whole, which is covered by Section 66 of the Transport Act 2000.
Finally, Amendment 13, also tabled by the noble Lord, Lord Tunnicliffe, would require the Secretary of State to report on the impact of Parts 1 and 2 on the general aviation—GA—sector. I thank the noble Lord, Lord Tunnicliffe, for his constructive engagement on this issue since Committee; his insight and experience have been most welcome.
GA is a key part of the aviation sector and is an important source of pilots, engineers and technicians, who, in turn, contribute to the success of commercial aviation, as noted by the noble Lord, Lord Tunnicliffe. The Government support GA, and we will continue to ensure that its needs are not overlooked at both local and national level when it comes to airspace modernisation.
However, I do not believe that it would benefit the AMS to place a reporting burden on the Secretary of State within 12 months of the Bill becoming an Act, for two reasons. First, Part 1 provides the Secretary of State with powers of direction relating to ACPs. Initially, we intend to use the powers in the Bill only on ACPs that are part of the master plan which is being developed by the Airspace Change Organising Group—ACOG—and formally accepted into the AMS. However, due to the impacts of Covid-19 on the modernisation programme —notably, the financial impacts on industry—the next iteration of the master plan will now not be delivered until later in 2021. That means it is very unlikely that within the 12-month period laid out in Amendment 13 a sponsor would have been directed to undertake an airspace change. If the powers in Part 1 are not used in this timeframe, there will be no impact on GA to be assessed and reported.
Secondly, Part 2 relates to NERL’s licence. NERL is responsible for upper airspace, where GA aircraft, other than business jets, do not routinely fly. An impact assessment, relating to Part 2, of the effects on GA would be very limited in content. The Secretary of State is aware that ACPs can have both positive and negative effects on stakeholders, including the GA community. If an individual ACP were directed, the impacts on GA would be set out in the CAP1616 process and GA bodies would be consulted if there were impacts.
I will revisit some of the things that the Government already do to ensure that the GA sector is fully represented at every level of the airspace modernisation governance structure. First, the Government are grateful to the All-Party Parliamentary Group on General Aviation for sharing the findings of the inquiry into UK lower airspace led by my noble friend Lord Kirkhope. The Government will continue to consider these recommendations during future updates to the AMS.
Secondly, CAP1711b, the governance annexe of the AMS, lists all the organisations that must be engaged in airspace modernisation. For example, ACOG is required to demonstrate how it has engaged with GA bodies such as the General and Business Aviation Strategic Forum in order for the master plan to be accepted by the CAA. To further strengthen ACOG, two GA representatives now sit on its steering committee.
Additionally, and following the Kirkhope inquiry, the Secretary of State has amended the air navigation directions to require the CAA to undertake a review, in consultation with airspace users, of airspace classification. The review will identify volumes of controlled airspace where the classification could be amended to better reflect the needs of all airspace users. The Secretary of State has also directed the CAA to prioritise ACPs from GA aerodromes relating to global navigation satellite systems—GNSS—approaches.
As demonstrated, we take the contribution of GA very seriously. As a sign of this, and after discussions with the Secretary of State, I can commit to the following further actions. First, we will require that ACOG includes a general assessment of the potential impact on the GA sector in all future iterations of the master plan. The CAA will enshrine this requirement in its guidance to ACOG on what the master plan must contain from a regulatory perspective. Secondly, we will ensure that future iterations of the master plan will be drawn to the attention of both Houses when they are published by placing a copy in the Libraries of both Houses. We will also direct the CAA to include a specific chapter on GA in its annual progress report on the AMS. This will be published, and a copy placed in the Libraries of both Houses accompanied by a Written Ministerial Statement. Additionally, we will require the CAA to provide a report on the impact of Part 1 of the Bill on GA, under Sections 16 and 17 of the Civil Aviation Act 1982.
These actions that I am committing to achieve the same objective as this amendment. I hope that, based on these reassurances and the commitments I have made, the noble Lord feels able to withdraw his amendment.
My Lords, I thank the Minister for her response. In light of the assurances she has given us, I am happy to withdraw Amendment 1 and send this Bill to the other end, where they will no doubt consider her response in great depth. I shall also not be moving the rest of the amendments in my name in this group.
Amendment 1 withdrawn.
Clause 2: Direction to progress airspace change proposal
Amendment 2 not moved.
We now come to the group beginning with Amendment 3. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
3: Clause 2, page 2, line 25, at end insert—
“( ) If a direction given to a person under subsection (1) is predominantly or wholly to enable the air change proposals of a third party to be completed as part of the masterplan for airspace modernisation and not an airspace change proposal of the person itself and would lead to adverse financial impacts for that person, the Secretary of State may compensate that person and may recover the cost of compensation wholly or in part from the third party.”Member’s explanatory statement
This amendment would allow compensation for adverse financial impacts.
I move Amendment 3 and I will speak briefly to the other amendments in this group. Amendment 3 would allow compensation for adverse financial impacts. Amendment 4 would empower the Secretary of State to provide that a person who is directed to progress an airspace change is fairly compensated for doing so, and that the compensation can be recovered from another person involved in airspace change where appropriate. Amendment 6 would empower the Secretary of State to require a person involved in airspace change to compensate another person who had been directed to progress an airspace change. Amendment 7 would allow compensation for adverse financial impacts.
One of the problems of getting organisations to co-operate is that some parties are unwilling to do so and they will use the financial impact on them as their excuse, particularly if one party is required to co-ordinate the activity and invest considerable work but is not likely to gain financially from the changes it is developing. Then it will be reluctant to move. Efforts to improve airflow planning over south-east England have been going on for at least a decade. It is important that, if it is a matter of financial limitations, the Bill allows appropriate mechanisms for money to flow between parties and perhaps from government.
This is important between big players, such as the airports and NATS. It is also important in the case of small airports or airfields on the periphery of the controlled airspace, where small changes may have significant adverse effects on them and they are not equipped—particularly financially—to mount a proper representation to have their voices heard without some recognition of the financial burden on them. Clearly, the movement of monies between the parties as allowed for in this group of amendments may not be necessary, but since we are creating a Bill to address all eventualities in the development of modern airspace it is important at this stage to make sure that there are facilities for money to move about and, in extremis, for government perhaps to finance parts of that development. I beg to move.
My Lords, our airspace modernisation is a complex but necessary process. It is necessary in the modern world because it enables environmental gains in an industry increasingly under fire for its emissions and where the technological solutions are much more long term than they are in the case of, for example, road vehicles. However, as the noble Lord, Lord Tunnicliffe, has just pointed out, one person’s gain is often another person’s loss. These are useful amendments because there is a real fear of a potential conflict between airports as the modernisation process goes forward.
In Committee, I mentioned that Stansted and Luton airports, for example, are very close geographically. It is not impossible to imagine that what would help Stansted might deprive Luton; for example, a potential airspace route that would cost it money in terms of potential for new services. Since the Committee stage, airports have found themselves in great financial difficulty because of travel restrictions. These amendments are therefore designed to ensure what I assume is an even-handed approach from the Secretary of State down through the CAA and the Airspace Change Organising Group.
The Airport Operators Association remains concerned about the funding of this issue—I raised that in the last group and was delighted to hear that the Minister has agreed to deal with it in her response here. When this matter was raised previously by the Airport Operators Association, the Aviation Minister suggested three sources of funding in a situation where one airport was going to win at the expense of another. The first suggestion was that alternative sponsors might pay. I would be grateful if the Minister would explain exactly what is intended with that proposal.
The second suggestion from the Aviation Minister was that funding might come from the £10-million airspace modernisation fund. That sounds fine but it is actually a relatively small sum so I would be grateful if the Minister could explain whether that is a fixed sum or extra funding would potentially be available.
Thirdly, there was a suggestion of government funding on a case-by-case basis. If the Government have any further thoughts on this, it would be really good to hear them at this stage. I hope that the Minister can put the Government’s intentions on record today to clarify these issues.
My Lords, the purpose of this group of amendments is to enable compensation for the recipient of a direction if the airspace change is predominantly or wholly for the benefit of a third party and if issuing a direction would lead to adverse financial impacts. Amendments 3 and 7 would also allow the Secretary of State to recover the cost of the compensation from the third party.
It is important for me to be clear up front that, while we recognise the severe impact that Covid-19 is having on the aviation sector, the “user pays” policy principle is an important one: those who stand to benefit from airspace change should pay for the costs of such a change. In the light of the pandemic and its effects on the aviation industry, most airports have paused their work on airspace change. However, airspace modernisation remains critical to deliver additional capacity and improve access to airspace for different users; it also brings environmental benefits by reducing emissions.
Therefore, the Government have asked the Airspace Change Organising Group—ACOG—to revisit the master plan for airspace change in this light to ensure that the benefits of the programme are realised and that the investment already made is not lost. In July last year, ACOG published a report on remobilising airspace change. It included 10 recommendations aiming to ensure that the programme advances, while recognising the financial pressures faced by airports and the industry.
The DfT and the CAA immediately accepted recommendations 1, 2 and 4. First, we will ask ACOG to establish clear protocols for the airports that are able to resume work on airspace change, how we engage with those where work has paused and the exit process for those that decide to opt out of the programme, subject to their criticality to the programme as a whole. Secondly, we will ask NERL and ACOG to work together to re-evaluate NERL’s 2018 feasibility report into airspace modernisation to identify the core set of airport-led airspace changes that will be required in the post-Covid world. Lastly, in the short term, the CAA will work with ACOG to ensure that work on airspace change that can still progress does not conflict with or constrain the broader programme.
Officials continue to work closely with the CAA to consider the remaining seven recommendations. One of these includes funding to tackle the short-term airspace change proposal—ACP—funding gaps potentially created by Covid-19. In the light of the pandemic, we recognise that the timescales in which airspace modernisation will take place will necessarily change. ACOG therefore plans to develop the future iteration of the airspace modernisation master plan in 2021.
The powers in the Bill are tied to the airspace modernisation strategy—the AMS—and the master plan. The Secretary of State could make a direction only to persons involved in airspace change based on this strategy. Therefore, it follows that there are no plans to use these powers in the near future while the industry recovers from the pandemic. As I have said, the need to modernise the UK’s airspace has not changed. We will need these powers in future once the master plan has been developed and the modernisation programme has been restarted to ensure that the strategy can be implemented in the years to come.
The Government recognise that there may be occasions when a small airport, or another person involved in airspace change, may require financial assistance to carry out some aspects of an ACP. We expect the CAA’s oversight team to work with the potential sponsor before recommending that the Secretary of State uses the powers to direct an ACP. At this early stage, if the potential sponsor expressed concerns that it did not have sufficient funding to proceed with a particular ACP, we would expect the oversight team to work with the potential sponsor to suggest alternative solutions.
I will set out again those solutions as they currently stand for the noble Baroness, Lady Randerson. As she noted, they could include an alternative sponsor paying for the changes. The CAA oversight team could help to identify and seek support from another ACP sponsor most likely to benefit or whose own ACP plans depend on the change in question. When it comes to airspace modernisation, where the airspace of two neighbouring airports overlaps, there will necessarily have to be collaboration. There cannot be one winner and one loser. The CAA will have a key role to play in that, not only in terms of seeking redress for putting the airspace programme in place but also in considering the fairness of the proposals between those two airports.
The second source of funding is the CAA’s airspace modernisation support fund. This fund is intended to support projects that are important to the success of the AMS where there are no other appropriate mechanisms for the recovery of the costs. It should support AMS deployment, including activity that is critical to the implementation of the airspace master plan that ACOG has been commissioned to deliver under the AMS. The noble Baroness mentioned a figure of £10 million and stated that she did not feel it was enough. At the moment, the Government are working on a one-year spending review, and further consideration of the nation’s finances and the availability of funding for this programme will be considered in future spending plans.
Finally, there is potential—it is a last resort—for government funding. The Government could consider, on a case-by-case basis only, whether grant funding under Section 34(1)(b) of the Civil Aviation Act could be provided to allow the airport director sufficient funds to bring forward an ACP. This funding would be subject to Treasury approval and would be provided only if absolutely necessary. Alternative funding mechanisms would be considered in the event that the sponsor is not an airport.
Due to these steps and the considerations of the industry as a result of the pandemic and further options that may be available to us, we do not expect a situation to arise where a potential sponsor would be put in financial difficulty by being directed to progress an ACP. I hope that, on the basis of my explanation, the noble Lord will feel able to withdraw his amendment.
My Lords, I thank the Minister for her explanation and for placing it on the record. I note that the Government are not entirely closed to the idea that financial considerations may be important, and that they may have to act to ease the burden on one party against another or make some arrangement, even if it is not a direction. I found the answers useful; unfortunately, I would have found an answer where she agreed with me entirely more useful. Nevertheless, I think that this has gone far enough for me to be happy to withdraw the amendment, and I give notice that I do not intend to move the other amendments in this group.
Amendment 3 withdrawn.
Amendment 4 not moved.
Clause 3: Direction to co-operate in airspace change proposal
Amendments 5 to 7 not moved.
Clause 4: Directions under sections 2 and 3: supplemental
Amendments 8 and 9 not moved.
Clause 5: Delegation of functions to CAA
Amendment 10 not moved.
Amendment 11 not moved.
We now come to the group beginning with Amendment 12. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Clause 10: Air traffic services licensed under Part 1 of the Transport Act 2020: enforcement
12: Clause 10, page 9, line 25, at end insert—
“(5A) In section 34 (investigations), for subsections (1) and (2) substitute—“(1) A person may make a representation to the CAA about an alleged or apprehended contravention of a section 8 duty or a licence condition.(2) Where a representation is made to the CAA, the CAA may— (a) consider the representation;(b) investigate the alleged or apprehended contravention.””Member’s explanatory statement
This amendment provides the Civil Aviation Authority with discretion over whether to investigate alleged or apprehended contraventions of section 8 duties or licence conditions by air traffic services licence holders. This discretionary power would replace the current requirement for the CAA to investigate alleged or apprehended contraventions in certain circumstances.
My Lords, I thank the noble Lord, Lord Tunnicliffe, NATS and the CAA for their very constructive engagement on this issue, which has resulted in these government amendments. In moving Amendment 12 I will speak also to Amendment 21.
Amendment 12 seeks to amend Section 34 of the Transport Act 2000 to give the CAA greater flexibility to consider representations about an alleged or apprehended contravention—or a complaint—and to ensure that resources are used effectively. Section 34 of the Transport Act 2000 currently places an obligation on the CAA to investigate a complaint if the representation is made by—or on behalf of—a person who appears to have an interest. While this obligation does not apply if the representation appears to the CAA to be frivolous or vexatious, in practice this section as currently worded gives the CAA little discretion not to commence formal investigations. As a result, the licence holder and CAA may be presented with a considerable burden when engaging with an investigation which could potentially have serious resource implications, even where the CAA then decides not to take further enforcement action.
Amendment 12 will provide clarity and flexibility for the CAA and stakeholders as to when investigations should be commenced. This will reduce the potential for unnecessary investigations which have no material effect—or which result in no enforcement action being taken—without watering down the CAA’s powers, or the ability of parties to raise a complaint. The CAA will publish updated enforcement guidance, which can refer to the application of Section 34.
Amendment 21 is a minor, consequential amendment. The Bill already makes a consequential amendment to Section 34 of the Transport Act 2000. That provision would have changed the current reference in Section 34 from “condition of a licence” to “licence condition”. As Section 34 is being amended more substantively, that consequential amendment is no longer required.
I turn briefly to Amendment 19, tabled by the noble Lord, Lord Tunnicliffe. I am grateful to the noble Lord for engaging with this. Amendment 19 seeks to ensure that the CAA would impose penalties on the licence holder, NERL, only where the contravention of the licence or Section 8 duty is serious, and it was deemed proportionate to do so. Following extensive engagement with NERL and detailed consideration, the Government are of the view that this amendment is not necessary. There are already sufficient legal checks and balances contained in the Bill, as well as through policy and guidance, to prevent disproportionate fines being levied on a licence holder.
The proposed amendment would also depart from the approach taken in the equivalent provision in the Civil Aviation Act 2012, meaning that the threshold for imposing a penalty relating to NERL would be higher than that for an airport’s economic licence. This would create a disparity in CAA enforcement across the sector. I do, however, appreciate the importance of considering the seriousness of the contravention, along with the proportionality of imposing a fine, and I will take this opportunity to reassure noble Lords of what provision has already been made.
First, the power of the CAA to impose a penalty is discretionary, and it would do so only for the most serious contraventions or as a matter of last resort. All regulators, including the CAA, are already required to consider the better regulation agenda—as well as the Macrory principles of better enforcement—in exercising their regulatory and enforcement functions. The Macrory principles explicitly state that enforcement must be proportionate to the nature of the offence and to the harm caused. In practice, proportionality will be considered at every stage of a stepped process to enforcement, which will be set out in the CAA’s enforcement guidance and statement of policy on penalties. The CAA is required to consult relevant stakeholders on the latter. The CAA will decide whether to impose a penalty, and the level of penalty, by assessing the seriousness and harm caused to users by the contravention, through the lens of its statutory duties under the Transport Act 2000.
If the CAA were to propose a penalty on the licence holder, the Bill contains procedural safeguards, in the form of consultation with the licence holder, before the penalty could be imposed. This would give the licence holder the opportunity to highlight the steps it is taking to mitigate the contravention. The CAA would consider all stakeholder representations ahead of imposing a penalty. If the licence holder were to disagree with an imposed penalty, they could appeal to the Competition Appeal Tribunal, which would have to have regard to the financeability duty imposed on the CAA under Section 2 of the Transport Act 2000. This approach is broadly aligned with equivalent provisions in the Civil Aviation Act 2012. The Government’s decision to modernise the air traffic licensing regime recognised that appropriate alignment with similar regulatory regimes would provide stakeholders with greater clarity and certainty and assist the CAA in exercising its regulatory functions and statutory duties in a more effective manner.
Turning to Amendment 20, I think we are agreed that the CAA should have a discretionary power to investigate complaints under Section 34, as set out in Amendment 12. It would therefore be inconsistent to narrow the power for the CAA to obtain information in relation to Section 34. I beg to move.
My Lords, these amendments relate to the CAA’s function to investigate complaints over breaches of licence conditions. Since the CAA has considerable powers, any limitation of those powers needs to be carefully balanced. There are concerns within various parts of the aviation industry about how the dual role of the CAA effectively operates in relation to these issues.
I regret that I am speaking before the noble Lord, Lord Tunnicliffe, because I want to listen carefully to the thoughts behind his amendments. It is important to fully understand the purpose of Amendment 20 in narrowing the power to obtain information. I believe it is in the spirit of the other limitations within this group of amendments, which seem entirely sensible.
My Lords, we fully support Amendments 12 and 21. We put forward amendments in Committee, in the light of conversations with the CAA, which we felt made some good points. We put these to the Government, who said, as Governments always do, “We don’t think much of your amendments but we agree with what you’re trying to do. Can we do it our way?” And my view is, yes, we can do it in the way they wish to draft it.
I turn to Amendment 19. In many ways, the Minister has answered the question: will the CAA behave in a responsible and proportionate way? She has basically assured us that it will, and that it is implied in general legislation.
On Amendment 20, we felt that the CAA’s powers were overly wide. I do not have a more specific reason for tabling the amendment, other than that the two concepts in Amendments 19 and 20 stood together.
I thank the noble Baroness, Lady Randerson, and the noble Lord, Lord Tunnicliffe, for a brief and constructive discussion. This is the culmination of many discussions of these issues, and we were very keen to reassure the noble Lord, Lord Tunnicliffe, that we recognised his concerns. We did—in typical government fashion—decide that our amendment was better than his, for which I apologise, but I suspect we were probably right. I am very grateful that the noble Lord is supporting the amendments. I tried very hard to set out exactly what we would expect the CAA to do in relation to his Amendment 19, and I am pleased that I have reassured him.
On Amendment 20, we felt that it would be inconsistent to narrow the power for the CAA to obtain information in relation to Section 34, because the Bill currently includes the power for the CAA
“to obtain information for … carrying out its functions under section 34 and Schedule B1”.
This covers documents or information that the person has or are under their control. It is important to note that:
“The CAA may give a notice under this paragraph only in respect of information or documents that it reasonably requires”—
I suspect that is a bit of narrowing—
“for the purpose of carrying out its functions under section 34 or Schedule B1.”
Therefore, we do not feel that it is necessary to limit the power, as we believe that the Bill is already appropriately drafted. On that basis, I commend the amendment to the House.
Amendment 12 agreed.
We now come to the group beginning with Amendment 12A. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this, or anything else in this group, to a Division must make that clear in debate.
12A: After Clause 11, insert the following new Clause—
“Airport slot allocation(1) Council Regulation (EEC) No 95/93 of 18 January 1993 on common rules for the allocation of slots at United Kingdom airports is amended as follows.(2) After Article 10a insert—“Article 10aaTemporary power to make regulations about airport slot allocation1 The Secretary of State may by regulations amend or modify this Regulation or the Airports Slot Allocation Regulations 2006 (S.I. 2006/2665) to make provision about the allocation of airport slots to air carriers in respect of specified periods.2 The Secretary of State may make regulations under this Article only if the Secretary of State considers that as a result of severe acute respiratory syndrome coronavirus 2—(a) there has been a reduction in the level of air traffic in a period compared to the corresponding period in a relevant previous year, and(b) the reduction is likely to persist.3 The power to make regulations under this Article may not be exercised—(a) after 24 August 2024, or(b) in respect of a period after the winter season following 24 August 2024.4 Regulations under this Article may, in particular, make provision—(a) requiring coordinators to consider slots allocated for a specified period as having been operated by the air carrier to which they were initially allocated, subject to any conditions as may be specified in the regulations being met;(b) modifying Articles 8(2), 10(2) and (4) and 14(6) of this Regulation to apply for a specified period as if they contained different percentage figures, subject to any conditions as may be specified in the regulations being met;(c) modifying Article 10(4) of this Regulation to apply for a specified period as if it included additional reasons on the basis of which non-utilisation of slots by an air carrier can be justified;(d) modifying Article 14 of this Regulation to apply for a specified period as if it included a power for the coordinator to withdraw slots from an air carrier for the remainder of a scheduling period where the coordinator determines that the air carrier has ceased its operations at the airport concerned and is no longer able to operate the slots allocated to it;(e) about enforcement of any provision made under this Article, including modifying for a specified period Article 14 of this Regulation or regulations 14 to 19 of the Airports Slot Allocation Regulations 2006;(f) modifying for a specified period any provision of this Regulation relating to the allocation of slots to new entrants (including the definition of new entrant);(g) modifying for a specified period any provision of this Regulation relating to coordination parameters. 5 In paragraph 2(a) “relevant previous year” means any previous year that the Secretary of State considers appropriate for the purposes of comparing levels of air traffic.”(3) In Article 13 (regulations)—(a) after paragraph 1 insert—1a A statutory instrument containing regulations under Article 10aa may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”;(b) in paragraph 2, for “Regulations” substitute “Any other regulations”.”Member’s explanatory statement
This amendment would provide the Secretary of State with a temporary power to amend the airport slot allocation provisions in Council Regulation 95/93 and the Airports Slot Allocation Regulations 2006 where, due to coronavirus, there has been a reduction in the level of air traffic that is likely to persist.
My Lords, Amendments 12A, 18A, 18B and 44 are a series of government amendments to provide temporary powers for the alleviation of airport slot usage rules. This will amend retained EU regulation 95/93, which governs the allocation of UK airport slots.
Prior to the Covid-19 pandemic, the 80:20 rule—or the so-called use it or lose it rule—encouraged the efficient use of scarce airport capacity, while allowing airlines a degree of flexibility in their operations. There are eight slot-constrained airports in the UK to which the 80:20 rule applies: Heathrow, Gatwick, London City, Luton, Stansted, Bristol, Birmingham and Manchester. The 80:20 rule mandates that, provided an airline has used its airport capacity at least 80% of the time in the preceding scheduling period—either winter or summer—it is entitled to those slots in the upcoming equivalent period.
Due to the unprecedented impact of the Covid-19 pandemic, in March last year the EU Commission took the decision to waive the 80:20 rule. Airport co-ordinators were instructed, when determining slot allocations for the upcoming summer season, to consider slots as having been operated regardless of whether they were actually used. This waiver covered the summer 2020 season and was subsequently extended to cover winter 2020-21. The UK supported the EU’s position.
Without alleviation, airlines may have incurred significant financial costs by operating flights at low load factors merely to retain their slots. Alleviation has helped to protect future connectivity and airline finances and reduced the risk of ghost flights being run to retain slots.
We anticipate that the effects of the Covid-19 pandemic on the aviation industry will continue for some time. Passenger demand is not predicted to return to 2019 levels until at least 2024-25. After we exited the UK-EU transition period on 31 December, regulation 95/93 was retained in UK law. However, when it was retained, the powers of the Commission to extend the period of alleviation from the 80:20 rule—which are being transferred to the Secretary of State—were expressly limited to 2 April 2021. As we expect disruption to air travel to continue for several years, it is therefore imperative that the UK has the necessary powers at its disposal to provide alleviation beyond the summer 2021 season should the evidence suggest that it is warranted.
Amendment 12A inserts a new clause after Clause 11 in Part 2 of the Bill. The new clause would insert a new Article 10aa into retained Council Regulation (EEC) No 95/93 of 18 January 1993 on common rules for the allocation of slots at United Kingdom airports. This would provide the Secretary of State with a power, exercisable until 24 August 2024 and not in respect of a scheduling period after winter 2024-25, to provide air carriers with alleviation from the requirement to operate airport slots allocated to them 80% of the time in order to retain the slots for the next equivalent scheduling period.
To allow for flexibility, this amendment also includes powers to modify the 80% requirement relating to slots usage. This will be an alternative to applying a full alleviation of the 80:20 rule for a specified scheduling period or season. This recognises that there could be alternative ratios, not 80:20, which could be applied to ensure the efficient use of slots. It will also allow the Secretary of State to apply conditions to an alleviation of the 80:20 rule, such as by setting a deadline for the return of slots not intended for operation, or that a waiver will not apply to a series of slots of an airline that, for example, ceases to operate at an airport.
The amendment also allows the Government to make other changes to the operation of the rules relating to the allocation of slots under this regulation for the duration of the relevant scheduling period. For example, the Government could change co-ordination parameters to reflect partial closures of airports, adopt temporary rules for the most efficient allocation of unused slots, and give the slot co-ordinator enforcement powers—for example, where unused slots are not returned with sufficient time to enable them to be effectively reallocated to other carriers. Having the powers to vary the 80:20 ratio and apply conditions to be in place on application of the rule will allow appropriate measures to support the sector’s recovery as passenger demand returns.
The use of this power will require secondary legislation, subject to the affirmative procedure, for any applicable scheduling period in which evidence supports the conclusion that relaxation of the 80:20 rule is appropriate. The nature and extent of any relaxation will be subject to targeted consultation and, of course, there will be a debate in both Houses.
This approach will allow us to use current data and evidence, as well as to consult stakeholders, to make judgments on whether alleviations are required for each period and, if so, to what extent. We will also assess other institutions’ analysis and recommendations on slots usage rules for future seasons, including the Worldwide Airport Slot Board, and proposals from other areas, such as the European Union and the United States.
Amendment 18A is a consequential amendment to Clause 19 to reflect that the new clause on airport slot allocation extends to England, Scotland and Wales but not Northern Ireland, where aerodromes are a matter reserved for the devolved Assembly. As noted, however, all slot co-ordinated airports in the United Kingdom are currently in England.
Amendment 18B is a consequential amendment to Clause 20 and provides for the new clause to come into force immediately when the Bill is passed and becomes an Act. This amendment ensures that regulations could be made under the new Clause 11A, relating to airport slot allocation, following Royal Assent, so that they are ready to come into force as soon as appropriate thereafter.
Amendment 44 amends the long title of the Bill to include reference to airport slot allocation. I beg to move.
My Lords, I thank the Minister for her introduction to these amendments and her explanation of the background. I should explain to the House that for most of my time as a Member of the other House I represented Aberdeen Airport; I say “most of my time” not because the airport relocated, but because my constituency boundaries changed. As a result of that, and of the fact that I commuted weekly by air to Parliament for decades—until lockdown last March, I continued to do so—I have taken an interest in aviation. Until lockdown I was also a frequent traveller around Europe and the rest of the world, and have experience of a variety of airlines and airports, large and small.
The allocation of airline landing slots is controversial, in terms of competition and commercial opportunity, as well as of access from feeder airports to the co-ordinated airports—a particular concern of mine. I completely understand the reason for the current waiver of the 80:20 “use it or lose it” rule, in the present climate. As the Minister said, we are following the same measures as the EU. Since she touched on this, does she foresee any circumstances in which the UK would, or should, take a different approach—for example, in how the proportions are reallocated? What would be the criteria or the conditions for that to happen?
I understand the complexity of managing slots, especially when airlines have seen their incomes decimated, and the fact that, as the Minister said, the predictions are for a long, slow period of recovery. At the same time, airport managers understandably wish to maximise traffic through their airports and resent it if airlines retain slots that they do not use, especially if other airlines are seeking additional slots with the intention of building a service. Given the need to maintain good relations with its airline clients, an airport may be unwilling to express its frustration. Clear, legally enforceable rules would be helpful, so does the Minister think that legal enforceability of the slots rules should be considered?
Access to services to and from London airports is especially critical for Scottish and Northern Ireland airports, both for access to London and for connections to Europe and the rest of the world. Of course services are driven by demand and commercial reality, but it is acknowledged that wider economic consideration for linkages is also important. That was demonstrated by the Government’s intervention on the collapse of Flybe, in relation to certain regional services.
Leaving aside the case for subsidies—I am not engaging with that in this debate, even for lifeline services, as it seems an important but separate issue—there has been a belief among many airport users that feeder routes to London may be profitable, but that the slots could be more profitably used for long-haul routes. The feeder routes were not necessarily uncommercial, but perhaps less profitable. Control and possible hoarding of slots by the larger airlines restricts competition and makes it difficult for other airlines to develop alternative services.
At the height of oil and gas activity in Aberdeen, we had daily flights to not only Heathrow but Gatwick, London City, Luton and Stansted; more recently Loganair trialled a service to Southend, but that did not last long. British Airways pulled out of providing a service to Gatwick and London City years ago. I found that hard to understand, as many of the airline’s holiday flights operate from Gatwick and transfers from Heathrow to Gatwick are not relaxing. EasyJet pulled the last Gatwick link, and Flybe and Eastern ended the City flights. Flybe and Virgin both attempted to offer a Heathrow service but neither became established, although it was Flybe’s demise that ended its Heathrow link.
As of this week, because of the pandemic, we have one or two return flights a day to Heathrow, compared with the six or seven we would expect in normal times. EasyJet will start providing daily flights to Luton from March, and—hallelujah—to Gatwick from May, Covid permitting. No doubt users of Belfast Airport will have a similar story, while Inverness has had to fight to retain links to London. Indeed, the reduction in services to London has seen business switch to Amsterdam and Paris, to which we have direct services, although those services, too, are currently limited.
As has been said, airlines’ recovery post-pandemic is likely to be slow but could also be ruthlessly competitive. Will the Government consider how the allocation of slots can be managed to ensure that it works in the best interests of all stakeholders, including the flying customers and feeder airports? Can airlines be prevented from hoarding routes they do not use, if that keeps out feeder routes or newcomers?
What steps can be taken to ensure that the allocation of slots takes into account the economic and social needs of remote communities, which are by definition more dependent on air links? Just for the record, the train journey from Aberdeen to London takes a minimum of seven hours, and at the moment we have only one direct service without changes; the others take longer. For people living in such areas, flying is not a luxury but an essential part of life.
Could the allocation of medium to long-haul slots be linked to a requirement to apportion and use a minimum allocation of slots from feeder airports to the co-ordinated airports? I repeat that this is not about subsidising those services. The suspicion is that they could be commercial, and probably are, but are just not as profitable. Does the Minister agree that the policy of slot allocation should be closely monitored to ensure that it is fit for purpose in the challenging future we face?
I understand the reason behind the amendments and accept it. But I believe that we should review the role of the allocation of slots, in a holistic way that takes into account the needs of the co-ordinated airports to optimise the use of their space, gives the feeder airports the linkages they need, and gives the passengers —who, after all, are really who the airports exist for—the choice and the services that can be achieved, rather than simply subjecting them to a decision based on the bottom line. Given the dire straits that many airlines are in, it is understandable that they should think in that way, but if the Government have a role, it should be to ensure fairness and social and economic connectivity, not just the profitability of the airlines.
My Lords, this is part two of a discussion that we started earlier this week on the SI on this subject, which gave the Government temporary powers. Since Committee stage, a year ago, we have had the impact of the pandemic and the EU has waived the usual 80:20 rules on slot usage. That was welcome because it avoids ghost flights—empty flights, just to keep slots.
In the amendments the Government are giving themselves powers until 2024 to continue to waive the rules altogether or to vary them, possibly by varying the percentages. That is a whole new issue to have entered the Bill—something that was simply not there a year ago. I wondered about the 2024 date and whether the period was a tad lengthy but time and time again in this pandemic, things have taken much longer to play out than we thought they would. On reflection, 2024 seems to allow a reasonable period ahead to give a level of certainty.
Because we did not have these substantial amendments prior to Report today, however, I have some questions for the Minister. First, Amendment 12A involves temporary powers to make regulations about slot allocation. Paragraph 4(d) of the new article it inserts would allow the co-ordinator to “withdraw slots” from a carrier where it is determined that
“the air carrier has ceased its operations at the airport concerned”.
My question to the Minister is: how would that be determined? I have in mind a question similar to the one I asked earlier in the week about Gatwick. Virgin has announced that it will not fly from Gatwick in future and will no longer have a base there. Indeed, it no longer does have a base there—but it retains its slots. Slots are a very valuable commodity, so how is such a situation likely to be approached in future?
My second question is on the same amendment. Paragraph 2(a) refers to “a relevant previous year”, which is later defined as:
“any previous year that the Secretary of State considers appropriate for … comparing levels of … traffic.”
That is an extraordinarily broad and vague definition, as levels of traffic vary dramatically according to the make-up of carriers from specific airports—with new ones coming and going—and to their commercial decisions. It also uses the term of a year, while slot waivers work in seasons to reflect the patterns of demand, which vary from season to season. Can the Minister confirm that the year as a whole will be the point of comparison?
Another point that I raised in our debate earlier this week is that the number of available slots currently greatly outweighs the capacity of the airlines to fill them, because as the pandemic has progressed they have greatly reduced their staff and the number of planes that they own or rent. How do the Government intend to approach this problem, whereby the number of slots cannot be filled by the current capacity of airlines?
Slot hoarding has to be tackled. The 80:20 rule is designed to maintain the competitiveness of the industry, which means fair ticket prices for passengers. If the waiver is exploited it will be bad for new entrants to the market, bad for passengers, and bad for airports. The powers or conditions that the Government have included here, therefore, and the potential to vary the 80:20 ratio, seem a sensible and welcome approach to the situation that we face, and I look forward to the Minister’s explanations.
My Lords, we generally support these four amendments, and we thank the Minister for tabling them for our examination. Nevertheless, one must recognise that the dilemma brought out by the noble Lord, Lord Bruce, in his contribution, is a real one. It is important to see these amendments as quite separate from the general problem. Can the Minister tell the House what examination of this problem the Government expect to conduct in the future?
I know from my own experience, which goes back to the 1980s, that slot allocation is a very difficult and challenging problem in the airline industry. One of the problems in life is that when there are many parties to finding an overall solution to the distribution of a scarce resource the solutions you get become very difficult to change: creating a level of change that would address the issues raised by the noble Lord, Lord Bruce, would be in the best “Yes Minister” category—very brave. I hope, nevertheless, that the Minister can lay out some of the plans for addressing this issue.
On the amendments as a whole, I have a few questions. The Minister may have answered them—I was slightly distracted, so I hope the House will forgive me if we go over old ground.
First, my understanding is that each season’s solution, under these amendments, will be subject to an affirmative order. I would value a simple assurance on that.
Secondly, the Heathrow authorities told us that in their view the agreements that were being developed through the Worldwide Airport Slot Board were more optimal than the solution we have had to adopt for the summer of 2021. Should, therefore, the parties—the airlines, airports and other stakeholders—come to a worldwide agreement on slot allocation? These things are co-ordinated on a worldwide basis. Certainly, when I was a senior executive the most important date of my year was the IATA timetable conference in October, which addressed the following summer’s slots. If the airlines and airports produce an overall solution, is there enough flexibility in this proposed solution to allow the Secretary of State—I stress allow, not require—to endorse such a comprehensive, multiagency agreement?
Finally, can the Minister assure the House—and the industry—that there will be adequate consultation with all stakeholders for each season that is managed under these amendments?
I thank all noble Lords for their constructive engagement on these amendments, and I recognise that it is far from ideal to bring them to the House on Report. It is simply the nature of the beast and the situation that we are in: these amendments relate to the Covid-19 pandemic and our hoped-for recovery from it.
I will first address the comments made by the noble Lord, Lord Bruce. He set out many of the challenges faced by the Government—both the short-term task of building back our aviation industry, and the longer-term strategy for the sector. I recognise that slot allocation is a challenge. I would not say it is controversial—it is just one of the challenges that one has to deal with.
The Government have recognised that this is an issue and carried out a consultation on it, alongside, I think, the consultation on the aviation strategy—which was a little while ago, in perhaps 2018 or 2019. We did, therefore, recognise the issue, and we asked the industry and other parties with an interest in the aviation sector how we might reform slot allocation. It remains the Government’s intention to do a piece of work on the long-term reform of slot allocation. But that is not for now. Now, we have to deal with the current situation by making amendments that are not minor but do not amount to an overhaul of the entire slot allocation process.
We do take into account the challenges that the noble Lord, Lord Bruce, raised. The noble Lord asked whether we would take a different approach to the EU, and I suspect that we will, but not that we necessarily will—it depends on the EU’s approach to the periods after summer 2021. We will, however, certainly be looking at other percentages in relation to a waiver, and considering very carefully the conditions that we attach to the regulations.
The noble Lord also mentioned enforcement powers, and I think that I said, in my opening remarks, that we would consider them. There are probably at least three key elements to the way in which we will take this forward. We need to think about: new entrants and whether they are able to get into the market; the needs of passengers, which is a critical element; and—as the noble Lord pointed out to great effect—regional connectivity, particularly to places, such as Aberdeen, where the alternative is very long. Being on a train for seven hours does not sound like huge fun.
I think we will return to many of the points the noble Lord raised when we discuss the regulations that will be put before your Lordships’ House. I look forward to those debates; I think they will be quite challenging, and we will be able to have discussions on all the elements he mentioned.
Turning to issues raised the noble Baroness, Lady Randerson, I am pleased that she agrees with 2024. Would it not be nice if we did not have to do anything until 2024? But I suspect we may need to be doing something by then, so we are just future-proofing the amendments. The noble Baroness had a number of quite detailed questions about how one, for example, determines that an operator has ceased operations. Those are exactly the things we are asking the sector at the moment. The consultation, as the noble Baroness knows, started right at the end of December—a three-week targeted consultation to try to get to the bottom of these very knotty problems.
The noble Baroness also asked which year should be used as a baseline. Initially, we will use 2019. Will that always be an appropriate baseline? I cannot answer that, but I am fairly sure we will come back to your Lordships’ House when we do the affirmative regulations and have this discussion again. She asked whether we will be looking over a whole year: yes, of course, because summer is compared to summer, and winter is compared to winter, because the flight patterns are different. It is certainly our intention that this is not bad for new entrants or for passengers. That will be front of mind when we make these considerations.
On the issues raised by the noble Lord, Lord Tunnicliffe, I appreciate that Heathrow recommends that alternative, “oven-ready” proposals are used by the Worldwide Airport Slot Board. For summer 2021, all we have available are the EU powers, and we are able to extend those powers, which, as your Lordships will know, we have already done. We accept, though, that, going forward, international consultation will be very important. An agreement reached internationally by airlines and airports may have a great impact on our thinking. However, I point out that the Government will have other priorities that we would like to insert into our considerations, as I mentioned previously: regional connectivity, passengers and competition at our airports.
So consultation is going to be the watchword. We will be coming back to your Lordships’ House every six months with these regulations for a while, and we will all become fairly expert at discussing the trials and tribulations of slot allocation and how we get the best possible outcome for all the stakeholders involved.
Amendment 12A agreed.
Amendment 13 not moved.
We now come to the group beginning with Amendment 14, and I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
14: After Clause 16, insert the following new Clause—
“Review of legislation relating to unmanned aircraft
(1) Within six months of the passing of this Act, the Secretary of State must lay before Parliament a review of legislation relating to unmanned aircraft, and whether it provides sufficient protection to individuals.(2) The review should make reference to, but is not limited to—(a) whether privacy legislation is sufficient to cover threats posed to personal privacy by unmanned aircraft;(b) the merits of introducing mandatory remote identification;(c) the merits of introducing mandatory geo-fencing;(d) whether criminal law sufficiently protects against—(i) the modification of unmanned aircraft; and (ii) the weaponisation of unmanned aircraft;(e) whether there should be a minimum age for the purchase and operation of unmanned aircraft, and what the appropriate age would be;(f) whether the CAA’s system for registering operators of unmanned aircraft ensures sufficient supervision for those who are under the age of 18 operating unmanned aircraft;(g) whether a licensing requirement should be introduced for unmanned aircraft above a certain weight;(h) the Government’s strategy for managing risks arising from unmanned aircraft operated from overseas.(3) The review must make a recommendation as to whether the Government should bring forward further legislation in the light of its findings.(4) The Secretary of State must lay before Parliament a further review in the same terms every 12 months after the review under subsection (1).”
My Lords, I will speak to Amendment 14 and give notice that I am minded to put it to a vote at the end of the debate. As I said earlier, this Bill is a bit of a mess—through no fault of the Minister; it is simply the passage of time, and time has definitely taken its toll. This applies in particular to the clauses on unmanned aircraft.
Since 2016, I have been urging the Government to bring forward legislation on drones. The Minister reminds us from time to time that unmanned aircraft include model aircraft, but I am concerned here solely with drones. In the five years since I first addressed this issue, drone technology has been transformed, and so has the number of drones in operation. They are of massive importance to our military, to the police and other emergency services, and to countless businesses across the UK. It is wonderful, transformative technology; it is also very worrying technology. In the wrong hands, drones carry illegal drugs, take illicit mobile phones into prisons and threaten major loss of life by interfering with flights, as we saw at Gatwick in 2019. “Wrong hands” obviously includes criminals, but also careless and untrained hands.
Since we started this Bill in 2019, EU legislation has been updated, and that is reflected in the details of the amendments here today. But they do not reflect the broader approach that is now needed. The Bill is a wasted opportunity, because it is largely a list of additional powers for the police. That approach is unsatisfactorily narrow, and my amendment outlines the broad approach that I believe needs to be taken. It needs to address the serious concerns of BALPA, the Airport Operators Association and many airlines about safety and security risks from drones. I have specified the range of issues I am worried about, but I do not believe it is an exclusive list. Some of them relate to technical advances, such as the availability of geofencing and remote ID. Others relate to possible shortcomings in criminal law in relation to the deliberate weaponisation of drones. Potential risks from overseas exist now that the technology allows longer-distance flying.
The amendment in this group in the name of the noble and gallant Lord, Lord Craig of Radley, also raises important issues about commercially used drones, which are often specialist and valuable. My amendment addresses the issue of the appropriate minimum age to be in charge of a drone. EU legislation allows a minimum age of 14, and the Government have supported this. But that is a minimum: it does not have to be that low within the EU rules, and, in any event, we have of course left the EU. Legislation allows drones to be registered to anyone over 18, but they can be flown by people younger than this, and there is no requirement for the registered owner to be present and in the line of sight of the person flying the drone. So, the question is whether this is sufficient supervision.
In preparation for this debate, I spent a long time online looking at adverts for drones, from under £100 to thousands of pounds. In all the adverts I looked at, I saw no reference at all to the rules on registration and supervision, line of sight, heights for flight and so on. Presumably, all that comes with the instructions in the box. But I am not entirely sure that everyone reads the instructions in the box carefully.
Also untouched by this Bill is the issue of privacy. There are serious concerns that drones can allow invasions of privacy. I said earlier that the Bill concentrates on police powers, but police use drones as a tool themselves, and they are a very useful tool in fighting crime. The vast majority of police forces now use drones, but there appears to be no overall dedicated guidance for police on the way in which they are to be deployed, or provision of information on how they should be used. This is a potentially controversial area, as we saw when Derbyshire police used drones at the start of the pandemic to watch walkers in the countryside, with the potential to levy fines on them.
This is a fast-developing technology, and my amendment recognises that by seeking a review of the legislation within six months, and every year thereafter, to ensure that it is, and remains, fit for purpose. I am not prescribing solutions, just outlining issues to be addressed and asking for a more comprehensive and effective approach to the whole issue of drones.
My Lords, I support Amendment 14 and shall speak to Amendment 15, which stands in my name. It is a probing amendment and I shall not divide the House on it.
After Committee, I was informed that unmanned aircraft and drone operators holding CAA permission for commercial operation—PfCOs—were concerned about the scale of the police powers introduced by the Bill. Recent changes to the ANO 2016 affecting the use of unmanned aircraft have dispensed with PfCOs and new categories for unmanned aircraft operations are provided for all users. The concern is that use of the police powers designed principally for recreational users or potential criminal use could cause commercial operators loss of time or money, or even cause them to fail to meet a contract.
For example, a building inspection by a drone operator might involve manoeuvres putting the drone closer to the structure than would be acceptable for a hobby user. Were the police to order the immediate grounding of a drone in such a CAA-approved use or, looking to the future, of a drone with CAA operational authorisation for beyond visual sight, extended visual sight or even swarm flights, this could lead to business disruption and loss. Would the police consider a complaint from the public reasonable grounds to order grounding? Would the police authority be responsible for such a commercial loss? I expect not, but serious cases might lead to some form of claim by insurers or the operators themselves, so it is reasonable to suggest that, for flights with CAA operational authorisation, the most the police might be required to do would be to seek presentation of the CAA approval licence, as new Schedule 9 envisages. If still concerned, the police should report the operator to the CAA, which already has extensive statutory powers for investigation and sanction.
As the Minister informed me in an exchange of letters we have had about this amendment, new risk-based categories apply to all UA activities, but this does not seem to be any reason for commercial operators, however approved or risk-assessed by the CAA, to be less concerned about the difficulties they might face if the police powers were to be exercised in ways that, maybe inadvertently, were to delay or interfere with the approved use which the CAA had given to the commercial operator.
These operators are further concerned about the level of knowledge of the relevant extensive ANO and CAP 722 publications required of regional police forces to deal with unmanned aircraft operating commercially and whether their increased workload will be funded, particularly as this activity expands. No one would welcome a breach of trust between the police and commercial businesses if police involvement were to be disruptive to commercial use. In further exchanges with the Minister—I thank her for her engagement with me over these concerns—I have not been given sufficient reassurance about the way police powers in this Bill will be used so as not to lead to potentially harmful outcomes for the commercial operator.
There is considerable growth potential in the commercial use of UAs and, indeed, in the market globally for such remotely controlled devices. The Government quote an addition of £42 billion and more than 600,000 jobs by 2030. The Bill provides an opportunity to show that such commercial users are recognised and being supported by statute and regulation specifically designed to deal with, but not onerously restrict, their activities.
A further consideration is whether some statutory approved way to claim for loss, disruption or damage to the business of the commercial operator—for example, if its unmanned aircraft was incorrectly impounded by the police—should be provided. Would this too be by means of secondary legislation, as envisaged for appeals against fixed penalty fines?
My purpose with this amendment is to seek government reaction to the need to provide for CAA-authorised and open operations in ways that the police powers in the Bill will do nothing to threaten or interfere with their commercial use and market growth. Other specialists, such as firemen and ambulance drivers, are set separate rules to other road users, which the police observe. Will the Minister agree to proposing further amendment to police powers in this Bill to address commercial uses and demonstrate the Government’s laudable commitment to supporting this fledgling industry? I sense that there is strong backing for this industry and the Minister’s direction to the Bill team would help to deliver it. I shall be happy to assist in the preparation of any amendments she decides to table.
My Lords, I support the probing amendment tabled by the noble and gallant Lord, Lord Craig of Radley, to insert a new clause. I will not repeat what he just said, but I underline its importance. If we go back in time a little, the Minister may recall that, when she first took office on drones, we—the UK—were a bit behind the curve compared to France, Ireland and Canada. Now, we have an opportunity to take the lead, which is what this new clause is partially about. I want to re-emphasise to Her Majesty’s Government that this industry, in particular, is here to develop commercial distribution and to function at all, the police should not be involved. It should be left to the CAA. It is fair to be open and say to my noble friend that the noble and gallant Lord, Lord Craig, and I have been in discussions with the industry—particularly with its legal representative, Richard Ryan, who is a well-known and very well-qualified barrister.
I shall give a couple of practical examples. I have been involved with drones almost since the day they were invented. If you have a situation with a constable—let us say in Sandy, where I live—who, under Schedule 9, is simply asking for reasonable grounds for belief, which may be founded on a complaint by a passer-by, the consequence is quite significant for a commercial operator as the constable will have the power to request information while the flight is taking place. I do not know whether the Minister has had a go at flying these things—I hope that she has—but they are not that easy; I speak as a former pilot and the noble and gallant Lord, Lord Craig, is a very experienced pilot. Anyway, the flight is still taking place, and the operator is being interrupted. Currently, under Part 1 of Schedule 9, paragraph (1)(a) states that while
“a flight by a small unmanned aircraft is taking place”,
the constable may, as paragraph 2(1)(a)(ii) states, require the person to provide
“information that would assist … the constable to verify that … that flight”
is valid. The issue with this is: who takes responsibility for the flight when the pilot is being interrupted by the constable? What if the drone switches out of GPS mode and into attitude mode? It then clearly requires more care and attention with respect to carrying out flight safety under Article 241 of the ANO 2016. I know that my noble friend has all these details at her fingertips, but I remind her that Article 241 clearly states:
“A person must not recklessly or negligently cause or permit an aircraft to endanger any person or property.”
I have a couple of other points, which are perfectly practical as well. The amendments to Schedule 9 rely on the fact that a constable has reasonable grounds for suspecting that a provision of the ANO 2016 is or was being contravened, as well as other aspects. How would the constable know at that time what precise provision of the ANO 2016 was being contravened? In practical terms, this is unachievable, due to the complexity of the legislation and/or further amendments to the ANO, leading ultimately to a possible miscarriage of justice.
My next point is very relevant to what is happening in the Covid world at the moment. What is the position if a remote pilot is conducting numerous flights at the same time, whether it is at a drone lightshow or transporting medical supplies on behalf of the NHS at scale? Some of these flights could be beyond the line of sight. This is relevant because, when we start operating at scale, the police will have significant powers which can harm the industry, create unnecessary reputational damage and be of significant cost and disruption to the whole unmanned aviation supply chain.
I have half a dozen other examples, but I do not think that the Minister wants to hear them this evening, although I would be more than happy to supply them. I ask her to reflect that this is a new industry that can and will create many jobs, increase skills and set the UK up as a leading pioneer in unmanned aviation. A system that confronts companies with such onerous terms in the legislation, that captures absolutely all operators, is, in my and my noble friend’s judgment, flawed. We have a situation where the Government have taken a view. We have looked at other jurisdictions, such as Canada—a country I know quite well—where the legislation is about half the scale of ours.
My final thought is that the potential for the loss of income, innovation and opportunity will be significant if this law applies to commercial operations, or those with an operational authorisation, especially in the short term. There is significant reliance on a constable knowing all the relevant aviation laws that apply. This is no good when a drone operator, for example, has a roof survey the next day which he cannot perform because his equipment has been appropriated by the constable in lieu of an investigation with no time limit.
Here is a wonderful potential industry. We need to make sure that, yes, there is control, but that can be done by the CAA, an organisation for which I have had the greatest respect as a pilot myself. Leave it to the CAA—that is what should happen. I hope my noble friend will reflect on some of the evidence that we have managed to produce this afternoon.
My Lords, we have heard a very powerful case from the previous speaker. I see no reason for me to detain the House unreasonably and will speak briefly, principally to Amendment 15. My concerns in Committee centred on what I saw as the need to isolate potentially irresponsible non-commercial users of drones from those who, for perfectly legitimate reasons, seek to exploit commercially this new and innovative use of the technology.
During the debate on 27 January last year, I raised the issue of the confiscation of equipment. On 12 February, I raised the same issue, in particular where rogue operators breached the rules. There has to be a procedure in place which more clearly separates and differentiates the potential rogue operator from the legitimate commercial operation. Fines are too often no deterrent. We know from government stats that there is a high incidence of non-payment among those who have little respect for the law. We need a separate, more vigorously enforced regime for rogue drone operators. We cannot treat CAA-authorised operations in a way which appears similar to that in which we treat recreational users.
The danger in the Government’s approach is that the recreational user will be the beneficiary of the developing, lighter-touch regime that will ultimately and inevitably have to apply to commercial drone operations. This is inevitable as commercial operators exert increasing pressure for the introduction of such a regime to protect commercial viability. Alternatively, if this does not happen, commercial operators will be penalised by the more vigorous approach that will inevitably have to apply to the recreational user. The systems proposed are flawed.
The noble and gallant Lord, Lord Craig of Radley, has valiantly sought to convince the department and Ministers of the dangers, but has received little reassurance to date by way of response. The noble Baroness, Lady Randerson, can clearly see the writing on the wall and therefore seeks a review of the new regime at a later stage. She is to be congratulated on the persistent way in which she has pursued these matters over a number of years. Either way, the system when tested will need to be reviewed. We need two, distinct sets of rules and regimes; a separate regime that is fair to all.
My Lords, I remind the House of my role as president of BALPA. I thank the Department for Transport for its constructive engagement with officers from BALPA in getting this far—goodness knows, we have spent a long time getting this far with this Bill.
I agree with the noble Lord, Lord Campbell-Savours, that rogue drone operators are clearly very different to the responsible drone operator that we wish to deal with. However, I am not sure that supporting this amendment is the right way forward. The Bill is not the right vehicle to include a requirement to review unmanned aircraft legislation. It cannot just be left to the CAA, as has been suggested, because if there were a major incident, government would be expected to have a role and to respond. At the same time, the development of drones is proceeding at an enormously fast pace. Will the Minister reassure us that a system of regular review will be put in place?
The serious concerns of BALPA are not limited to where we are today but look to where we might be tomorrow. We hear, for instance, about the problems with multiple use of drones, where one person controls more than one drone. The first instinct is to say, “That’s terrible, isn’t it? We really should have only one person per drone,” but let me put another scenario to the House. If someone is lost at sea, or there is an air crash, you may well want to have a swarm of drones covering a wide area. For that to be effective, you would need one central person to be in control so as to investigate what was beneath, and being observed by, a number of drones. It is not quite as simple as some people seem to imagine.
I would like the Minister to assure us that there will be a regular review, and that she will come back to the House at an appropriate time, possibly in answer to a Question, or put something in the Library, outlining the principles which could follow that review. It is no good saying that we want one every five years or every two years; we need to be able to respond fairly quickly to matters as they come up. I will certainly not be supporting a Division, as passing this clause would not take us forward at all. However, my hope is that some of the principles contained therein are the sort that should be borne in mind in developing the policies that we want to see for the effective and reasonable control of drones, commercially and privately.
My Lords, there is a real and strong disagreement within your Lordships’ House. There are those whom I would call almost the “free enterprise at all costs” people, such as the noble Lord, Lord Naseby. They would have very little and ineffective regulation of the system. Then there are those who are being cautious about the fact that this is a rapidly developing industry, while we know that some part of the industry is in the hands of the most unscrupulous people.
I do not accept the assertions of the noble Lord, Lord Naseby, that a police constable is going to interfere with people whom he knows are legitimately carrying out proper business of this sort, such as looking at bridges or buildings. These people will, or should, be registered in a separate register of those who have legitimate reasons to fly drones. Those who do not have a legitimate reason should, in many cases, be subject to the full force of the law because much of what they are doing is illegal.
The other thing is that drones can be a big nuisance factor. We will come on to that in a later amendment, when we talk about areas of outstanding natural beauty. But in her approach to this, the Minister should think about people who are legitimate drone owners—those who are licensed and registered with the CAA, and presumably the local police or enforcing authority—and those who probably should not be let near drones, and are using them for nefarious or criminal activities. However, in considering this amendment, it is important to say that this industry is developing very quickly. The thought of it proceeding on its way with a formal system of being able to review the way it is turning out, probably fairly often, seems a sensible precaution.
I will direct my comments to Amendment 14 but will listen carefully to the Minister’s response to all the points made in respect of Amendment 15.
Amendment 14, moved by the noble Baroness, Lady Randerson, would require the Secretary of State to lay before Parliament a review of legislation relating to unmanned aircraft and whether it provides sufficient protection to individuals. The amendment also sets out a number of issues to which such a review should refer but to which it should not be restricted. The review would be required to make a recommendation on whether the Government should bring forward further legislation in the light of its findings.
Unmanned aircraft—drone—technology is developing fast, and the Government need to ensure that they are proactive, not reactive, when it comes to legislating, where necessary, to reflect developments in this technology and the expansion in the use of drones in the public services, by the Armed Forces and in both the commercial and leisure sectors, as well as by those whose priority may not be operating drones safely and responsibly.
As has been said, unmanned aircraft offer great benefits to society but can also lead to significant areas of concern. Emergency services are utilising drones to save lives, and parcel and freight companies, for example, look to use drones to deliver vital medical supplies as well as day-to-day purchases. Unmanned aircraft are now used in many industries to carry out work that is potentially hazardous for human beings or can be done much more quickly or thoroughly by the use of drones. They are also used by the police, as we have seen during the current Covid-19 crisis and the associated lockdowns—an aspect to which the noble Baroness, Lady Randerson, referred.
However, there is another side, as we saw from the drone sightings at Gatwick Airport not so long ago, which resulted in flight cancellations and diversions affecting many thousands of passengers. It led, I believe, to a COBRA meeting being convened and the Army being called in, and it also highlighted the urgent need for this Bill, which nevertheless has been going through this House at a snail’s pace and still has to go through the Commons.
We have to be in a position to be sure that legislation keeps pace with developments in the increasing use, and, most importantly, potential misuse, of unmanned aircraft, as they become more sophisticated and powerful in what they can do and for how long—as well as in their range and areas of activity, not least the monitoring of civilians, and in relation to who uses them. As the noble Baroness, Lady Randerson, also said, drones are used for criminal activity as well.
There is a need to ensure that legislation continues to provide sufficient protection to individuals and that this does not get overlooked in this developing field of technology. There needs to be a mechanism for ensuring the continued adequacy and appropriateness of existing legislation, including this Bill, in a field of activity that is expanding and moving forward and will continue to do so with some rapidity.
It is not sufficient to say that legislation will be kept under review: there are so many areas nowadays, across so many departments, where the Government tell us that legislation is kept under continuous review. We need something in the Bill to ensure that, in such a fast-developing field as unmanned aircraft and the uses to which they are put, regular reviews of legislation take place, covering, but not limited to, the specific points referred to in the amendment. It is equally important that Parliament has a clear role in the review process, which is also provided for in this amendment. Amendment 14 has our support.
My Lords, I thank all noble Lords who have taken part in today’s debate. I will take each amendment in this group in turn, starting with Amendment 14, in the name of the noble Baroness, Lady Randerson, which the Government believe is neither necessary nor appropriate.
The purpose of Part 3 is to attach police powers to offences in a separate piece of legislation—the Air Navigation Order 2016—and to other offences. Therefore, this Bill is not the appropriate place for a requirement to review unmanned aircraft legislation. Furthermore, a number of reviews are already due to take place. I hope this will satisfy the noble Baroness that her amendment is not necessary.
The ANO 2016 is the legislation that currently sets out offences that are specific to unmanned aircraft. Article 275 of the ANO 2016 states that it must be reviewed every five years, and its first statutory review is due to be completed by August 2021. This review will assess the extent to which the law surrounding unmanned aircraft, in so far as it is laid down in that instrument, is operating effectively to achieve its objectives. Of course, this may well be within the noble Baroness’s six-month timeframe.
As the impact assessment for the Bill states, this legislation will be kept under continuous review to ensure that it achieves its objectives: to address the key gaps identified from the 2018 consultation on the future of drones in the UK and to improve the ability of the police to respond to UA misuse, thereby reducing the irresponsible and malicious use of UA. This is in line with the Government’s practice of keeping all UA legislation under review, regardless of whether there is a legislative requirement to do so.
Moreover, ordinarily, a five-year timeframe applies to post-implementation reviews of legislation. This is recommended in the Government’s better regulation framework and the requirements of the Small Business, Enterprise and Employment Act 2015, in relation to new measures adopted in secondary legislation regulating business and the voluntary sector. Furthermore, the Counter-Unmanned Aircraft Strategy, published in October 2019, commits the Government to continuing to develop proposals for inclusion in future legislation, so that the legal framework within which operational responders must operate does not become obsolete or hamper their ability to respond to and investigate malicious drone activity. I am very much hoping that these forthcoming reviews will reassure the noble Baroness and other noble Lords that the Government take our ability to legislate for the fast-moving world of the unmanned aircraft sector very seriously indeed, and we have work ongoing to make sure that our legislation is up to date.
The noble Baroness briefly mentioned the use of drones by the police. We have had a few conversations about this issue. It might be worth reassuring her that the police have to abide by the same laws as everybody else. Drones are incredibly helpful to police forces and can often be used in places where there is risk to life or where a helicopter might be too expensive or not as efficient. The police have to act within the same laws as everybody else and have operational procedures that overlay those laws in terms of the right way and right circumstances in which to use drones. Decisions for their use are put into place by each police force, which has clear guidance on how they are to be used.
Responsible use is of course really important—for example, on the collection and use of video footage, again, unsurprisingly, the police have to follow the same laws as everybody else. There is also a legal position on public bodies’ use of video footage that is well regulated by directed surveillance authorities. The police are responsible for ensuring that data is collected, processed and stored in accordance with the law. In terms of the safe operation of a drone, the police must do so in accordance with the Air Navigation Order 2016 and, where needed, if the operation is slightly riskier, they will have to apply to CAA for operational authorisation —as, indeed, does anyone else. If any individual has concerns about the use of drones by police, of course they can make a complaint to the police and crime commissioner or the mayor, where appropriate.
I turn to the amendment tabled by noble and gallant Lord, Lord Craig of Radley, which generated an interesting and lively discussion on permissions for commercial operators. Now that the implementing regulation is in place, there is no difference in the requirement to obtain a permission for a commercial or a recreational operator. I will call them “recreational operators” but there are all sorts of different operators. That is absolutely right, because I do not subscribe to the view that “commercial” is good and “recreational” is necessarily bad. Creating that false dichotomy is not really helpful.
It is down to risk, rather than who the person is with their hands on the control. So the implementing regulation draws no distinction between commercial and recreational flights and the ANO has already been amended to reflect that. Of course, the offences that noble Lords are discussing today relate to that ANO but do not amend the ANO itself. So the need to obtain a permission for a purely commercial operation has now been revoked—but, of course, that could be a good thing. Many commercial operators will now be very pleased, because they will not need to apply for a licence to fly a drone which a recreational operator standing right next to them could fly without a licence.
It strikes me that this should actually be fairly good news for commercial operators; therefore, it is only the higher-risk operations in the specific or certified category where a UAS operator will require authorisation or certification from the CAA. Most commercial operators will be perfectly competent and able to get that permission, authorisation or certification and, indeed, have it to hand in the unlikely event that a police officer or constable believes that something is not being done in accordance with the law. So I do not accept the scenarios of doom and gloom whereby dreadful things will happen if somebody has to put their hand in their pocket and pull out a piece of paper to hand to a police constable and say, “Yep, I’ve got my authorisation, here it is”, and the flight could quite frankly continue.
The police have been heavily involved in the drafting and preparation of the Bill and they have not said that they feel that this intervention with a commercial operator would be particularly onerous or difficult. They are content that they will be able to work with operational partners to make sure that the aspects of the Bill are implemented successfully. So the legislation makes it very clear what the requirement for police to engage with the UAS operator is—to establish what authorisation they have and the category they are flying in, be it for recreational or commercial use. Where there is any doubt whether an operator is acting in a lawful way, the police will be able to draw on the guidance provided. Again, I do not fear that the police will not know what they are doing in this regard. The Bill makes it clear that the police, in engaging with a UAS operator, can require information to be provided about what category they are flying in and what consents they have.
So I hope that the noble and gallant Lord, Lord Craig of Radley, will feel reassured. I suspect he may not, but it is not our intention to carve out different sets of rules for commercial and recreational operators. We absolutely understand and respect the commercial unmanned aircraft sector; we believe it has a huge future in our country and beyond and we do not want to put anything in its way or stop people doing their jobs. However, people in that sector do not justify special treatment; they should be treated exactly the same as anybody else who flies an unmanned aircraft, and that is what the regulation does. I believe it actually simplifies the system and that it will have some advantages for commercial operators, some of whom will not now need a permit to do their flights.
I hope that, based on the reassurances I have given to the noble Baroness, Lady Randerson, she will choose to withdraw her amendment.
My Lords, I thank all noble Lords who have participated in this debate; it has been very interesting. I particularly thank the noble Lord, Lord Rosser, for his support, for signing the amendment and for his clear explanation of his position.
I thank the Minister for her response, but I am afraid that she has not reassured me. There has been a very interesting range of views, but the Bill is just a start. My contacts with the drone industry indicate that it believes that a modern, strong legislative framework would be helpful to the industry and not a constraint. I know of several organisations that retain very serious concerns about drones and their operation in the modern world, and about their safety and the societal impact of, for example, illegal activity.
The Minister very fully outlined the Government’s approach, saying that it is neither necessary nor appropriate to have the reviews that I suggest. She referred to the ANO 2016 and the statutory review this year, which she has referred to in previous conversations. I looked at that review, but it does not have the breadth of the one that I am calling for and is not in line with the scope of the amendment that I have tabled. I am afraid that, without a commitment from the Minister to the kind of comprehensive approach that I have in mind, I feel compelled to call a vote on this amendment.
Amendment 15 not moved.
We now come to the group beginning with Amendment 16. I remind noble Lords that Members other than the mover and Minister may speak once only and that short questions of elucidation are discouraged. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Clause 17: Part 3: interpretation
16: Clause 17, page 10, line 31, leave out “exit day” and insert “IP completion day”
Member’s explanatory statement
This would change the definition of “subordinate legislation” to catch instruments made under retained direct EU legislation on or after “IP completion day”. Retained direct EU legislation came into existence then and it is therefore when powers conferred by the legislation became exercisable.
My Lords, as noble Lords are aware, the Government made a series of amendments to the ANO 2016 by the Air Navigation (Amendment) Order 2020, which came into force on 31 December 2020. Those amendments were mainly necessary because implementing regulation 2019/947, or the IR, became applicable on 31 December 2020.
The IR was retained in UK law on 31 December 2020 and establishes a framework for the operation of unmanned aircraft to ensure that they are used safely. This includes requirements relating to registration, competency testing, authorisations for higher-risk flights, as well as provision for the creation of geographical zones in which UA use is restricted.
As the IR makes provision for some of the same subject matter as the previous requirements relating to small unmanned aircraft in the ANO, it was necessary to make amendments to the ANO, including removing provisions, to ensure that the two sets of legislative provisions interact correctly, without duplication or contradiction. The amendments to the ANO also create offences for breaches of the requirements of the IR. Those amendments mean that many of the references within the Bill to articles of the ANO, and therefore offences, are now out of date. It is therefore necessary to amend them to ensure that the powers in the Bill continue to function. This and other government amendments to Part 3 do not change the policy intention of the Bill.
The government amendment to Clause 17 is simple and technical. It ensures that the Bill refers to the end of the transition period by changing “exit day” to “IP completion day”, which means the implementation completion date.
Clause 18 deals with regulations made under this Act, and the government amendment to it is consequential to one of the amendments to Schedule 11. The amendment specifies which regulations made under Schedule 11 will be subject to the affirmative resolution procedure. The current draft of the Bill lists regulations under paragraph 4 of Schedule 11. However, paragraph 4 is removed by an amendment to Schedule 11 and the regulation-making power is set out in paragraph 1 of Schedule 11 instead.
I turn to the government amendments to Schedule 8. This Schedule gives the police the powers to require a UA to be grounded and, in certain circumstances, to stop and search persons and vehicles and to enter and search premises under warrant.
Schedule 8 also amends Section 93 of the Police Act 1997, so that counter-UA measures that involve interference with property or wireless telegraphy can be authorised, and so that the use of these measures in relation to the Civil Nuclear Constabulary and custodial institutions can be authorised within those organisations and bodies.
The amendments to Schedule 8 remove the incorrect references to offences and replace them with references to the closest equivalents and offences relating to requirements of the IR of a similar nature among the new corresponding offences in the ANO. For example, once amended, Schedule 8 will enable a police constable to stop and search a UAS operator or remote pilot who may not be complying with specific aspects of the IR’s risk-based operational framework—one example would be failing to obtain an operational authorisation to fly outside of the “open category”.
The list of offences to which the amendment to Section 93 of the Police Act 1997 applies has also been amended to include, for example, offences relating to the contravention of specified requirements in the IR. As with the other powers in this schedule, the offences to which the amendment to the Police Act will apply are only those that could constitute a serious safety or security risk if, for example, committed near certain sites, such as prisons. Without these amendments, the ability to protect the public, our critical national infrastructure and prisons from unlawful behaviour involving the use of unmanned aircraft would be limited.
I now turn to the amendments to Schedule 9. The purpose of Schedule 9 is to enable constables to obtain information from UAS operators or remote pilots about the lawful basis of a UA flight, for those flights that require a prior step to be lawful; for example, by registering or obtaining a permission. It is necessary to amend the powers in this schedule in light of the ANO amendment, including the circumstances in which the powers can be exercised. Under the IR, there is a wider range of circumstances in which a UAS operator must register, more gradations in levels of remote pilot competency and a number of new ways in which the CAA might grant its consent for a UAS operator to undertake higher-risk operations. It has therefore been necessary to substitute the schedule entirely. However, the policy intention of the schedule remains the same.
The Government consider that the powers in Schedule 9 need to be exercisable where a constable has reasonable grounds for suspecting, rather than believing, that a particular requirement applies. We believe this is necessary to ensure the purpose of the provisions is not defeated as the rules in the IR are more complex. It is necessary to amend some of the terminology to reflect the scope of the IR and the related terminology. The terms “small unmanned aircraft” and “SUA operator” are no longer used in the ANO, which now refers to “unmanned aircraft” and “UAS operator”. The Bill now refers to “relevant consent” to encompass the broader range of approvals, such as permissions, operational authorisations and certifications, that can now be issued by the CAA.
Schedule 9 is amended so that the powers that the police have in relation to the registration and competency requirements and related offences apply to the new registration and competency offences in the ANO and to the requirements for tethered small UA that the ANO amendment introduced. This means that, in the context of registration and competency, the police can still require a remote pilot to provide evidence of competency and give certain information about the operator, while a UAS operator can be required to provide evidence of registration and give information about the remote pilot.
The amendment also includes a power for the Secretary of State to make regulations setting out additional types of information and evidence which a constable could require a remote pilot or UAS operator to produce provided that the constable considered it would be reasonable to do so. Schedule 9 is also amended so that the powers that the police have in relation to provision of evidence of relevant consents for certain flights also apply to the new offences brought in by the ANO amendment. For example, the requirement to have an operational authorisation when flying in the specific category.
The power for a constable to inspect a UA has also been amended. The power, if enacted, would previously have been able to be used to ascertain whether registration and competency requirements were applicable to that particular flight and whether the UA had the UAS operator’s registration number displayed on it. Under the proposed amendment, a constable would be able to inspect a UA to ascertain whether any of the other powers in Schedule 9 were exercisable. This will still include circumstances where it is necessary to gain a more accurate assessment of the aircraft’s mass or to see whether the UAS operator’s registration number is displayed. It will now also include, for example, circumstances where a constable needs to check the class marking of a UA. EU Delegated Regulation 2019/945 requires UA put on the market from 1 January 2023 to meet certain product standards and bear markings that indicate which class the aircraft is in. This will, in time, assist a constable to ascertain whether the operation that has been undertaken using the aircraft was permitted under a particular category or subcategory of operation of the IR and to determine whether any further investigation is necessary or whether an offence has been committed.
I once again reassure noble Lords that the amendments to Schedule 9 are essential to ensure it functions as intended in light of the changes flowing from the IR becoming applicable and the changes made to the ANO by the ANO amendment.
Schedule 10 makes provision about fixed penalties for certain offences relating to UA. A minor and technical amendment has been made to paragraph 2(3) of Schedule 10 to change where the new provision created by that paragraph will appear in the ANO. This is necessary because the recent ANO amendment has added more provisions after Article 265 of the ANO.
Finally, Schedule 11 currently contains powers that allow for amendments to Schedule 8 and to Section 13 and Schedule 9 to the Bill—once it is an Act—in light of changes to the ANO, the creation of a new ANO or regulations made under the Act to provide for offences relating to EU-derived legislation. This means that the police powers in this Bill can be used to enforce any new unmanned aircraft offences brought in by any of the above.
These powers are being amended so that they include the ability for Schedule 9 to be amended again in the future in a similar way to how we are currently proposing to amend it. In other words, we are restructuring the schedule to accommodate changes to the regulatory framework while keeping the policy intention the same. I reassure noble Lords that the ways in which Schedule 9 can be amended in future are limited to within the parameters of its current subject matter.
The amendments to Schedule 11 would also permit future amendments to the police powers in Schedule 9 to authorise a constable to use reasonable force as well as create offences, including for knowingly or recklessly providing false or misleading information, documentation or evidence to a constable. This is in keeping with the powers currently in that schedule and therefore reflects the policy intention of that schedule as well as the aim of the Bill as a whole.
The power in Schedule 11 to create criminal offences and civil penalties, so that the requirements of the delegated and implementing regulations can be enforced, remains, but the scope of it is being expanded slightly to reflect that we now have additional regulation-making powers in the retained EU-derived legislation. The amendments permit regulations made under Schedule 11 to provide for compliance with regulations made under the UK basic regulation. The remaining amendments to the schedule are minor and consequential to those described above and are necessary to ensure that this part of the Bill continues to function as it should.
In summary, without Schedule 11 and without these amendments to it, it would not be possible to ensure that the enforcement of secondary legislation relating to UA remains fit for purpose, especially in light of new and often rapid developments in UA technology and its possible misuse in the future. To reiterate, despite this looking like a large quantity of amendments, there is no change to policy intent. The changes are necessary because of the changes to the underlying regulations and the retained EU law and to the ANO. I beg to move.
I am speaking to this general set of amendments, but I want to speak particularly on disabled safety features on drones. The Bill should make it illegal to fly a drone if any safety features are inoperable or have been disabled. My noble friend Lord Whitty tabled an amendment to this effect in Committee. The Minister’s assurance then was that the safety feature that could be referred to would be electronic conspicuity, the disabling of which would be covered under other provisions. That, we believe, is not the case. Lights, geo-awareness and geo-fencing, software functions that limit altitude, remote ID and various redundancy measures could all be covered under this provision. There are technical requirements for certain systems whereby the user cannot modify them—for example, data associated with remote ID. However, this does not protect against deliberate hacking or intentional disabling of systems. A provision that makes these acts illegal is therefore relevant.
BALPA has engaged directly with staff at the DfT on this point and we are grateful to the Minister’s officials for doing so. We note that the Government believe that sufficient safeguards are already available in the Air Navigation Order to cover this matter, but, overall, we still believe that a specific and separate offence should be created in the Bill. I make these points for the Minister to take on board, as it is highly likely that this sensible and proportionate amendment may be urged when the matter is considered in the other place. I hope the Minister can take this back to the department and reflect on it as the Bill proceeds further.
My Lords, I start by congratulating the Minister on her spirited 12-minute speech, which covered all these amendments.
In the heady days of the 1960s, I went to university for three years. Her Majesty was good enough to teach me to fly in the Royal Air Force. At university, I ran the college bar and happened to get a maths degree. It was useful training, which led me into an airline career. Running the college bar gave me first-hand experience in line management, and I am afraid that the only effect of the maths degree was to make me even more pedantic than I was naturally.
Accordingly, when the Minister was kind enough to send a letter setting out these amendments and where they were, I read it and alighted on some of the words used. She wrote to clarify that these were “largely” technical changes, saying that it is important to note that these amendments, if accepted, will not change the policy intention of the Bill and are, “in most cases”, just making minor but essential changes. Either the words are careless, and the changes are wholly technical—though I believe that there is no such thing in most cases—or some of these amendments are not technical in nature. In her response, can the Minister tell me which of these many amendments is not a technical change but has some substance? Or can she assure me that the words “largely” and “in most cases” should have been omitted from her letter and that all the changes are technical?
I ask for this assurance because we do not have the resources to work through such a large number of amendments. We made an attempt—and I commend our adviser, Ben, who worked through them. He could not find anything that was not minor and technical, but I would value the Minister enlightening me and satisfying my pedantic approach.
My Lords, like the noble Lord, Lord Tunnicliffe, I have grappled with all these amendments. I wondered whether what seemed minor and technical to me might seem very significant to someone working in the industry. I thank the Minister and her officials for their thorough briefings. However, this all shines a light on the unsatisfactory situation with this Bill—a major tranche of amendments has been produced because of the time that has elapsed.
I support the points made by the noble Lord, Lord Balfe. They underline the need for a much more comprehensive approach and review. Although my amendment was narrowly lost, I hope the Minister will bear in mind the points I have made and the need to look more comprehensively at this in the near future.
As the noble Lord, Lord Balfe, said, as ever, the views of BALPA must hold great weight. It is important that safety is at the forefront of our minds, on all these issues. But because this is a diverse, complex and fast-changing subject, only people actually working in the industry are able to spot the problems when they first appear.
I agree with the noble Lord, Lord Tunnicliffe. I cannot see anything here which is not detailed and technical. Therefore, I have no objections to the amendments.
I thank noble Lords for their short interventions on this debate. Turning first to the comments of my noble friend Lord Balfe, I will, of course, take them back to the department and consider them further.
Turning to the points made by the noble Lord, Lord Tunnicliffe—I see his maths degree and I raise him an engineering degree. And I am the ultimate pedant. However, what is minor and technical to one person is not minor and technical to another; indeed, that was pointed out by the noble Baroness, Lady Randerson. When it comes to my letter to him, where I said “in most cases” and “largely”, I think I was just trying to cover my bases. The reality is that they are minor and technical. Where they are slightly not minor and technical—perhaps a bit borderline—I tried to bring that out in my 12-minute speech, particularly where there have been changes. For example, the implementing regulation has introduced some changes from the status quo ante; it is a slightly different regime. I suppose that, although they are technical amendments to make it all match up, perhaps they may be on the large end of minor. But I reassure him that I too have found nothing that I could not describe as minor or technical and, on that basis, I commend the amendment to the House.
Amendment 16 agreed.
We now come to the group consisting of Amendment 17. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this amendment to a Division must make that clear in debate.
17: Before Clause 18, insert the following new Clause—
“Prohibiting aircraft noise over designated sites
Civil aviation aircraft flying below 7,000 feet over landscapes designated as National Parks or Areas of Outstanding Natural Beauty are prohibited, except—(a) any civil aviation aircraft landing at or taking off from civil airports or airfields, and(b) civil aviation aircraft flying below 7,000 feet for safety reasons.”
My Lords, I start by apologising to noble Lords and my noble friend the Minister, as I was unable to take part at Second Reading or in Committee. I have, of course, read the Hansard reports of both previous stages.
In moving Amendment 17, standing in my name, let me say at the outset that I do not intend to press this amendment to a Division, and I can see the potential problems if my amendment was actually inserted into the Bill. Nevertheless, I feel the issue merits a short debate.
Aircraft noise caused by low-flying aircraft, particularly if it is frequent, is a major disruption, and, indeed, can be a health issue. Those who live near airports and aerodromes get used to it—not that they can ever ignore it. However, my concern, one that is shared by many who enjoy the pleasures and tranquillity of our national parks and areas of outstanding natural beauty, is that, from time to time, that very peace and quiet is shattered by excessive aircraft noise. This amendment would prohibit civil aviation aircraft flying below 7,000 feet over landscapes designated as national parks or areas of outstanding natural beauty, except for any civil aviation aircraft landing at or taking off from civil airports or airfields and civil aviation aircraft flying below 7,000 feet for safety reasons. I have chosen 7,000 feet because that is the point at which noise is considered by the CAA to be a pertinent consideration when designing flight paths.
My honourable friend Mr Philip Dunne, the chair of the Environmental Audit Select Committee in the other place, has taken a keen interest in this matter and has asked several Parliamentary Questions exploring the issue. In March last year, he asked
“what provisions are included in the Air Traffic Management and Unmanned Aircraft Bill … to protect national parks and AONBs from aircraft noise.”
In reply, my honourable friend the Minister, Kelly Tolhurst, said:
“The Bill gives the Secretary of State the power to direct an airport, air navigation service provider or another body to take forward an airspace change that is considered necessary for the delivery of the Civil Aviation Authority’s … Airspace Modernisation Strategy.
Any Airspace Change Proposals that are taken forward as a result will be covered by the department’s existing Air Navigation Guidance which is reflected in the CAA’s airspace change process. The guidance for this process states that, where practicable, it is desirable that airspace routes below 7,000 feet should seek to avoid flying over Areas of Outstanding Natural Beauty … and National Parks.”
That Answer states “where practicable” and “it is desirable”, but I am afraid that that sounds a little weak to me.
In reply to a further Question asking
“what … scrutiny and … appeal mechanisms there are for the assessment of the effect of aircraft noise on … Areas of Outstanding Natural Beauty and … and National Parks”,
the Minister, Kelly Tolhurst, said:
“The government expects airports to monitor the effect of aircraft noise on their surroundings, and to seek to address any specific concerns arising from it. There are no specific scrutiny arrangements or appeal mechanisms related to the assessment of aircraft noise on Areas of Outstanding Natural Beauty … or National Parks.
The airspace issues surrounding AONB and National Parks were considered in the department’s airspace and noise project. The outcome of this work was reflected in the Air Navigation Guidance 2017, which the department issued to the Civil Aviation Authority … in October 2017.
The guidance requires the CAA to have regard to the statutory purposes of AONB and National Parks when considering proposals ... When airspace changes are being considered, it is important that local circumstances, including community views on specific areas that should be avoided, are taken into account where possible. However, given the finite amount of airspace available, it will not always be possible to avoid overflying AONB and National Parks.”
Finally, when asked
“what provisions are included in the … Bill … to protect national parks and AONBs from aircraft noise”,
the Answer came back:
“The Bill gives the Secretary of State the power to direct an airport, air navigation service provider or another body to take forward an airspace change that is considered necessary for the delivery of the Civil Aviation Authority’s … Airspace Modernisation Strategy.
Any Airspace Change Proposals that are taken forward as a result will be covered by the department’s existing Air Navigation Guidance which is reflected in the CAA’s airspace change process. The guidance for this process states that, where practicable, it is desirable that airspace routes below 7,000 feet should seek to avoid flying over Areas of Outstanding Natural Beauty … and National Parks.”
I apologise to noble Lords and particularly to the Minister for reading all that out—in fact, it may well be in her brief. Noble Lords might think that it seems to be quite good as far as it goes, but I cannot see any particular sanctions that can be taken if these directions are ignored. I would like to see something that gives real discouragement to those who seek to ignore the directions. Perhaps my noble friend can explain what happens if an aeroplane flies too low over one of these areas without good cause. I look forward to her reply. I beg to move.
I am very glad that the noble Lord, Lord Randall, has raised this matter, because it is of considerable concern to many people—those who enjoy areas of outstanding natural beauty and, for example, those who run the National Trust. I, too, would like to know what sanctions are available to people who own such areas of land if it becomes apparent that aircraft are not keeping to the guidance provided by the various air traffic orders.
Therefore, I intervene simply to second what the noble Lord, Lord Randall, has said. I believe that the mechanisms are there, but what I really want to know is what happens if the rules are not obeyed and what can be done about it.
My Lords, I welcome the raising of this fresh issue. I have had representations from residents in Shropshire about a sudden unexplained increase in aircraft noise in their area. In this case the noise was undoubtedly caused by civilian flights. People who suddenly find themselves underneath flights by the Air Force and the military often understand the need for those, but they may be more concerned about civilian commercial flights.
Even the local councillors could not find the cause. They could not discover where the flights were coming from, or why there had been a sudden increase. Was a new airline operating from a nearby airport? Were the schedules, or the destinations, different? They could not find the answer, and then along came the pandemic, and there was no longer a problem. However, that does not mean that the problem has disappeared for ever, or that it will not be back in the reasonably near future.
Even if that problem does not return in Shropshire, that would not undermine the important principle behind the amendment. I thank the noble Lord, Lord Randall, for tabling it. Areas of outstanding natural beauty and national parks are subject to numerous protections in terms of planning, the natural environment, and the agriculture that can take place within them, but, as I understand it, there is no protection from aircraft noise.
The Bill threatens to make the present vulnerability of such places worse, because airports will now be required to surrender their spare airspace. There might be an airport very close to an AONB but not operating over it simply because there is no commercial incentive to use that route. But now airports are to be asked to give up their spare airspace for use by general aviation, which means that our skies will be even more crowded.
This is an interesting development, at a time when the Government are keen to burnish their environmental credentials. I recommend that they look into this and see whether they can use their new powers to deal with the problem of noise. I urge the Minister to take seriously the suggestion in the amendment that flights below 7,000 feet should be controlled, and allowed only in certain situations.
I thank the noble Lord, Lord Randall, for his amendment, which, as he said, provides us with an opportunity to debate aircraft noise. I am sure that in her response, the Minister will set out the Government’s position on that. I certainly would not claim to know what all their objectives are on aircraft noise, but I do remember one, although it is unrelated to the specific issue covered in the amendment.
Following the 2017 public consultation on Heathrow, Gatwick and Stansted, the Government said that their objective was to
“limit or reduce the number of people significantly affected by aircraft noise at night, including through encouraging the use of quieter aircraft, while maintaining the existing benefits of night flights.”
As we are discussing aircraft noise, it might be interesting if the Minister could provide some information on the specific certifiable progress that has already been made towards achieving that stated government objective, and what specific further objectives and targets the Government have set themselves for the next three years so as to deliver on the objective to which I referred.
On the specific issue raised in this amendment, I am sure that a great many people who visit national parks and areas of outstanding natural beauty have, at times, been conscious of aircraft flying low overhead. An interesting point was made by the noble Baroness, Lady Randerson, about all the other types of protection that already exist for national parks and areas of outstanding natural beauty. In that context, she asked why the goal and objective set out in the amendment of the noble Lord, Lord Randall of Uxbridge, might not also offer a further protection, in view of how aircraft noise can, at times, diminish the enjoyment that people expect when visiting national parks and areas of outstanding natural beauty. The amendment refers specifically to civil aircraft, but presumably there could be an issue with military aircraft in this context as well.
I support the basic objectives that the noble Lord, Lord Randall of Uxbridge, seeks with his amendment. I hope that, when the Minister responds, she will set out the Government’s thinking on aircraft noise, not least on the specific circumstances covered by this amendment and the goals, objectives and targets that the Government have set in this regard.
My Lords, I thank my noble friend Lord Randall for tabling this amendment. When we debated this in Committee, noise did not particularly come up. I hope that one of the benefits of airspace modernisation is noise reducing. I am unable to set out in full the Government’s position on noise at airports; if there are any detailed questions, I will write.
However, I want to address the points made and the issues relevant to the amendment put down by my noble friend Lord Randall. He is absolutely right, and he read out lots of responses from the Aviation Minister to questions on airspace change proposals, which are covered by the air navigation guidance. Indeed, the guidance states that
“where practicable, it is desirable that airspace routes below 7,000 feet should seek to avoid flying over Areas of Outstanding Natural Beauty (AONB) and National Parks”.
There was a question about sanctions. Obviously, some airports have no option but to send flights over AONBs and national parks. For example, Gatwick is surrounded by them. We are lucky in our country, in that there are a significant number of these things and they are wonderful, but it is simply not possible for them not to be overflown. One might narrow it down to those operating below 7,000 feet, but nearly all commercial aircraft operating below 7,000 feet are taking off or landing. Again, with airspace change proposals, we expect to see the trajectory of both landing and taking off become steeper, which will again reduce noise and limit their impact.
The amendment is unlikely to have a significant impact on the volume of such flights because they are taking off and landing, but it would have a significant impact on general aviation, which would be unable to overfly vast swathes of the UK. Noble Lords will have heard today support for general aviation in government and parts of your Lordships’ House. There is lots to consider about this. It does not mean that the Government want AONBs and national parks to be overflown; we certainly do not. We expect everybody to behave sensibly when flying over such parks.
We understand that disturbances from aircraft noise can have a negative impact on the health and quality of life of people living near airports and aerodromes. When it comes to airspace change proposals, however, the impact on the local community and their surroundings is a key consideration, and we introduced new airspace and noise policies in October 2017. I know that the industry is extremely cognisant of noise and its impact on local communities, because it does not serve the industry well not to be seen to try to mitigate noise as much as possible—having a very restive local community is never helpful.
We have implemented new noise metrics and appraisal guidance to assess noise impacts and their impacts on health and quality of life. That includes the amenity of being able to use parks in the way that one would expect—as places of relative tranquillity. The Government continue to review aviation noise policy, as new evidence emerges, to ensure that it continues to be fit for purpose. The Government also recognise that, as technology improves, aircraft are also getting quieter.
I hope that I have been able to demonstrate to my noble friend that AONBs and national parks are already considered as part of the airspace change process—as he pointed out—and it is the case that the Government are cognisant of AONBs and national parks and how they might feed into the airspace change process. Therefore, I hope that my noble friend feels able to withdraw his amendment.
My Lords, I thank other noble Lords for joining in on this short but important debate: the noble Lord, Lord Bradshaw, the noble Baroness, Lady Randerson, and the noble Lord, Lord Rosser.
The noble Baroness, Lady Randerson, hit on the point that has not, perhaps, been completely answered by my noble friend, which is that there has seemingly been a change in overflying at lower heights. It is something that people notice. I live near Heathrow. We do not get much overflying, but we did notice last year, before the pandemic, that there seemed to be a change in patterns. My amendment would have tried to stop not overflying per se but flying below 7,000 feet.
My other concern is the fact that there is no way of registering such low flying and no sanctions that can be applied to an aeroplane that, for whatever reason, flies lower than it should. Clearly, there might be a safety issue or whatever, and I also take the point about take-off and landing, but I do not think that those are the cases that people complain about.
Having listened to the previous debate, as someone with a degree in Serbo-Croat I do not think that I could match the academic qualities of my noble friend, and I would certainly not dream of teaching her to suck eggs. I suggest, however, that when this goes to the other place there will be Members there whose constituents will contact them, and those Members may want answers to some of those questions. I say that as someone who knows that this is the sort of thing that really gets constituents going.
I will leave it at that. I am grateful for my noble friend’s answer. It was not quite as full as I had hoped for, but I am never really disappointed by her answers. I beg leave to withdraw the amendment.
Amendment 17 withdrawn.
Clause 18: Regulations
18: Clause 18, page 11, line 14, leave out from “paragraph” to end of line 15 and insert “1(2) of Schedule 11 that make provision authorised by paragraph 1(3)(b) or (4)(b) or (c) of that Schedule.”
Member’s explanatory statement
This amendment would be consequential on the removal of paragraph 4 of Schedule 11, and its replacement by paragraph 1 of Schedule 11, which would result from other amendments standing in my name. It provides for the cases when draft affirmative Parliamentary procedure is to apply to the exercise of the power in paragraph 1 by regulations under the Act.
Amendment 18 agreed.
Clause 19: Extent
18A: Clause 19, page 11, line 20, after “Ireland” insert “, except that section (Airport slot allocation) (airport slot allocation) extends to England and Wales and Scotland only”
Member’s explanatory statement
This amendment is consequential on the Government amendment that inserts a new Clause after Clause 11 relating to airport slot allocation. It would provide that the new Clause extends to England and Wales and Scotland only.
Amendment 18A agreed.
Clause 20: Commencement
18B: Clause 20, page 11, line 25, at end insert—
“(aa) section (Airport slot allocation);”Member’s explanatory statement
This amendment is consequential on the Government amendment that inserts a new Clause after Clause 11 relating to airport slot allocation. It would provide that the new Clause would come into force on the day on which this Act is passed.
Amendment 18B agreed.
Schedule 5: New Schedule B1 to the Transport Act 2000
Amendment 19 not moved.
Schedule 6: New Schedule C1 to the Transport Act 2000
Amendment 20 not moved.
Schedule 7: Air traffic services: consequential amendments
21: Schedule 7, page 62, line 11, leave out paragraph 6
Member’s explanatory statement
This amendment is consequential on the amendment to Clause 10 that inserts a new subsection (5A)(which amends section 34 of the Transport Act 2000).
Amendment 21 agreed.
We now come to the group consisting of Amendment 22. I remind noble Lords that Members other than the mover and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press this Amendment to a Division must make that clear in the debate.
Schedule 8: General police powers and prison powers relating to unmanned aircraft
22: Schedule 8, page 64, line 20, after “may” insert “destroy the aircraft or”
My Lords, Amendment 22, in simple terms, allows an appropriate authority to destroy a drone. The Minister has been kind enough to debate this at some length and wrote me a letter on 11 January setting out three points. First, legally, the power to destroy a UA already exists. Secondly, operationally, destroying a UA is not generally desirable. Thirdly, existing technology is such that destroying a UA is often unnecessary. I am not being pedantic here, but the words in the last two points, particularly, are of a partial kind. The Minister does not really need to debate reasons two and three with me. When it comes to the third, I know that “existing technology is such that destroying a UA is often unnecessary”, but it may be necessary. I accept that, “operationally, destroying a UA is not generally desirable”, as all sorts of second-order effects would have to be taken into account. Nevertheless, the only point I wish to debate is that, “legally, the power to destroy a UA already exists”. In her response, I would like the Minister to convince me of that.
I am aware, through my previous responsibilities, of the impact that can be made with two kilos of Semtex. The potential for a determined terrorist to use a UA for malicious terrorism is real. Such a terrorist coming from a sophisticated organisation would, of course, not have a drone with all the protective devices that a commercially applied drone has. The Gatwick incident showed that the police were then powerless, probably for technical reasons, to stop massive disruption taking place by the use of a drone. It seems to me that if a serious terrorist-like incident were developing, one would want a clear power for the authorities to destroy a drone. The burden rests with the Minister to convince us that the powers that exist are genuinely sufficient to make sure that the authorities, in appropriate circumstances, could destroy a drone in the interests of safety and limiting damage or massive destruction. I beg to move.
My Lords, I will not detain the House for long, but this is my application to join the pedants’ club, which was advertised somewhat earlier.
The amendment says
“insert ‘destroy the aircraft or’”.
The clause would then read:
“The constable may destroy the aircraft or require a person to ground the aircraft”.
I thought that this was a sort of “Derbyshire Constabulary amendment”, where they go chasing round after people—a constable cannot destroy an aircraft. What would we have? Would we have Derbyshire police with a popgun? I am afraid that it just will not work.
I can see what is meant but I can also see that we need to think this through a bit more thoroughly, particularly the attendant risks that might arise. The power conveyed in this Act could almost certainly be incompatible with the European Convention on Human Rights. I speak as a long-standing alternate member of the Council of Europe, and, indeed, as someone who was for some time a chair of its committee on implementation of judgments of the court. Even if the wording were sound, I am not sure that the principle is. You would need a proper judicial process in order to destroy a drone, and you would not be able to do it as an either/or—we will either destroy the drone or make you land it and then we will talk to you. I suggest that the amendment is well meaning but, unfortunately, defective.
My Lords, destroying a drone or an unmanned aircraft is a vital mechanism, particularly for dealing with terrorism. The incident at Gatwick at the end of 2019 illustrated for us all that dealing with an intruder drone is a highly complex issue. I invite noble Lords to think back to that and to the discussions that took place in the media, and, much more importantly, behind the scenes, on exactly how to deal with a drone that was causing millions of pounds of economic damage. It was damaging the economy and causing huge individual damage to those unable to fly, yet people were paralysed into inactivity, not least because there was a lack of certainty about powers. There was also a lack of certainty about the ability to destroy the drone effectively and the safety of doing it. All those things were being taken into account.
However, there would be circumstances where destroying a drone would be the simple and clear answer to a threat. I welcome this as an interesting, probing amendment. Like the noble Lord, Lord Tunnicliffe, I shall listen carefully to the Minister.
Going back to the Gatwick situation, I remind noble Lords that days were spent deciding how to deal with that drone. To this day, we do not know who was flying it. Therefore, the situation was never satisfactorily resolved.
I thank the noble Lord, Lord Tunnicliffe, for his amendment, which gives the police the power to destroy a UA if they have reasonable grounds for suspecting that it has been, or is likely to be, used in the commission of an offence. We have had many a thought-provoking discussion on this, both inside and outside the Chamber. If he will forgive me, I will set out the Government’s stall in full, even though I am aware that he accepts two of the arguments that I am about to put forward.
While I understand the intention behind this amendment, it is critical that all powers in this Bill are necessary and proportionate, and we have worked very hard with the Home Office and the police to ensure that this is the case. Our aspiration for this Bill has always been to ensure that we provide the police with the powers necessary to effectively respond to UA incidents, while ensuring that we do not inadvertently discourage positive UA use in the UK.
I will set out the three key reasons as to why the Government are of the view that this amendment is not required. First—I think that this is the point that the noble Lord needs to be convinced on—from a legal standpoint, the powers to destroy a UA already exist. Section 3 of the Criminal Law Act 1967—the CLA—allows the reasonable use of force in the prevention of crime. This is not police-specific legislation, but it is legislation that the police can, and do, rely on in circumstances where force is required. It would allow a police officer to destroy a UA in extremis if it were deemed necessary, subject to risk assessments.
The powers in this Bill must be necessary and proportionate, and the police assess that Section 3 of the CLA 1967 is sufficient and proportionate in the case of a UA, in line with other areas of policing. This legislation is used for other aspects of policing that require force in the prevention of crime, such as the use of police batons. Therefore, there is no legal requirement to provide for this power in the Bill. Indeed, doing so would set an unusual precedent: why would we specify a drone and not anything else? This could be taken to undermine reliance on the CLA 1967 in other areas.
Secondly, destroying a UA is not generally operationally desirable because there is a need to maintain presentable evidence as part of a police investigation and any subsequent court proceedings. Destroying a UA could render digital and forensic examinations impossible, potentially compromising an investigation.
Thirdly, existing technology is such that destroying a UA is also often unnecessary. The Government’s counter-unmanned aircraft strategy committed to the creation of a new national police counter-unmanned aircraft capability in the UK. This capability makes use of technology that is more sophisticated and does not by necessity result in the destruction of the UA. It relies on defeat countermeasures, known as “effectors” or “jammers”, which have a number of impacts on the UA, such as causing it to return home, landing it or forcing it to hover—the specific outcome depends on the UA programming. These effectors defeat the UA and prevent whatever malicious action it was going to take in a way that is more proportionate, easier for the operator to use and less likely to cause unwarranted collateral damage than the use of technology that destroys the UA.
The noble Lord previously raised a concern that the Bill and the package of related counter-UA measures we are taking would not be impactful in a high-threat UA incident. I will now set out why I believe that the Bill, alongside these other measures, would have sufficient impact. First, our operating procedures across a range of critical national infrastructure sites, such as airports and other key sites such as prisons, are constantly evolving and have significantly improved since the Gatwick 2018 drone incursion. This allows for a faster, more effective response by both the site and the police. The Bill supplements this as it extends the range of public authorities that can be given authorisations to make lawful the use of jamming equipment to counter UA.
Secondly, as I mentioned, the police have new capabilities and counter-UA measures available to them, which provide a step change in our ability to respond to UA incidents, compared to Gatwick 2018. The Bill supplements this by providing the necessary powers for the police to use this capability to its fullest extent.
Thirdly, if an incident occurs that cannot be stopped by either our operating procedures or our police capability, we can use Section 3 of the CLA 1967 to use necessary reasonable force to stop or, where absolutely necessary and proportionate, damage or even destroy the UA.
I hope that, based on the reassurances I have given, noble Lords will be satisfied that this Bill provides the police with sufficient powers to deal with UA offences, and that there are existing powers in law under which the destruction of a UA is, and can be, justified, where it is absolutely necessary in the circumstances. Therefore, I hope that the noble Lord, Lord Tunnicliffe, will feel able to withdraw his amendment.
My Lords, I listened to that explanation and remain unconvinced that it will not cause significant delay in what would be a fast-moving event and that the police or other appropriate authority would not, in fact, be more effective if they had the power to destroy a drone in a serious emergency situation. However, I have a difficult problem in pressing this any further in that the Minister arranged a meeting with senior Home Office and police people who said that they did not want the power, and if they are not attracted to having it, it would be unreasonable of me to press this further, having failed to convince the Government.
Before I finish, I note that we have done Report in three hours and 30 minutes. An observer of our normal proceedings might say that we have not taken this Bill seriously. In fact, we have taken it very seriously, and I commend the Minister and her people for the enormous amount of time, effort and letter writing they have put in to responding to the many questions and concerns we have put to them. Accordingly, I can assure society in general and anybody watching this event that opposition scrutiny and, as far as I can tell, Liberal Democrat scrutiny of the Bill have been very thorough indeed and very efficiently handled by the Minister and her people, and I thank her for that. I beg leave to withdraw the amendment.
Amendment 22 withdrawn.
Amendments 23 to 34
23: Schedule 8, page 65, line 7, leave out “or 240” and insert “, 240, 265A(2) or 265B(2)”
Member’s explanatory statement
This amendment would add references to new offences created by the Air Navigation (Amendment) Order 2020.
24: Schedule 8, page 65, line 14, leave out “an offence under article 95 or” and insert “—
(i) an offence under article”Member’s explanatory statement
This amendment would remove a reference to an offence which is revoked by the Air Navigation (Amendment) Order 2020.
25: Schedule 8, page 65, line 15, after “2016” insert—
“(ii) a relevant offence under article 265B(3) of the ANO 2016, or(iii) a relevant offence under article 265E(7) of the ANO 2016”Member’s explanatory statement
This amendment would add references to new offences created by the Air Navigation (Amendment) Order 2020.
26: Schedule 8, page 65, line 35, leave out from “to” to end of line 36 and insert “—
(a) an offence under any of these provisions of the ANO 2016—(i) article 94A (certain unmanned aircraft: permission for flights over or near aerodromes);(ii) article 239(4) (prohibited or restricted flying);(iii) article 240 (endangering safety of an aircraft);(iv) article 265A(2) (various requirements under the Unmanned Aircraft Implementing Regulation relating to UAS operators);(v) article 265B(2) (various requirements under the Unmanned Aircraft Implementing Regulation relating to remote pilots);(b) a relevant offence under article 265B(3) of the ANO 2016;(c) a relevant offence under article 265E(7) of the ANO 2016; or (d) a relevant prison offence.”Member’s explanatory statement
This amendment would remove the use of the defined term “relevant ANO offence” from paragraph 2(6) and instead list the offences to be covered. That list includes some new offences created by the Air Navigation (Amendment) Order 2020.
27: Schedule 8, page 65, line 37, leave out sub-paragraph (7)
Member’s explanatory statement
This amendment would remove sub-paragraph (7) because the interpretation provision would be contained in the new paragraphs 4A to 4F proposed by another amendment standing in my name.
28: Schedule 8, page 66, line 49, after “relevant” insert “unmanned aircraft”
Member’s explanatory statement
This amendment would reflect the replacement of the defined term “relevant offence” with “relevant unmanned aircraft offence” by the new paragraph 4A proposed in another amendment standing in my name.
29: Schedule 8, page 67, line 44, after “relevant” insert “unmanned aircraft”
Member’s explanatory statement
This amendment would reflect the replacement of the defined term “relevant offence” with “relevant unmanned aircraft offence” by the new paragraph 4A proposed in another amendment standing in my name.
30: Schedule 8, page 68, line 2, after “relevant” insert “unmanned aircraft”
Member’s explanatory statement
This amendment would reflect the replacement of the defined term “relevant offence” with “relevant unmanned aircraft offence” proposed by another amendment standing in my name.
31: Schedule 8, page 68, line 6, at end insert—
“Meaning of “relevant unmanned aircraft offence”
4A_ In this Schedule “relevant unmanned aircraft offence” means—(a) an offence under this Act;(b) any of these offences under the ANO 2016—(i) an offence under article 94A(1), 239(4), 265A(2) or 265B(2) of the ANO 2016;(ii) a relevant offence under article 265B(3) of the ANO 2016;(iii) a relevant offence under article 265E(7) of the ANO 2016;(c) an offence under any of these provisions—(i) section 40C(2) or (3) of the Prison Act 1952;(ii) section 34B(2) or (3) of the Prison Act (Northern Ireland) 1953;(iii) section 41 or 41ZA of the Prisons (Scotland) Act 1989;(d) a Scottish common law prison offence.Meaning of “relevant offence under article 265B(3) of the ANO 2016”
4B_ In this Schedule “relevant offence under article 265B(3) of the ANO 2016” means an offence under article 265B(3) of the ANO 2016 committed by the contravention of a relevant requirement set out or referred to in any of the following provisions of the ANO 2016—(a) article 265B(5)(a), (h), (i) or (j);(b) article 265B(6);(c) article 265B(7)(e), but only insofar as that requirement (to comply with authorised limitations and conditions) regulates the operation of an unmanned aircraft during flight;(d) article 265B(7)(f), (g) or (i); (e) article 265B(8), but only insofar as that requirement (conditions under which operations in the framework of the model aircraft clubs or associations may be conducted) regulates the operation of an unmanned aircraft during flight.Meaning of “relevant offence under article 265E(7) of the ANO 2016”
4C_ In this Schedule “relevant offence under article 265E(7) of the ANO 2016” means an offence under article 265E(7) of the ANO 2016 committed by the contravention of a relevant requirement set out or referred to in any of the following provisions of the ANO 2016—(a) article 265E(2)(a)(vi), (vii) or (viii);(b) article 265E(2)(b)(ix), (x) or (xi);(c) article 265E(5)(a);(d) article 265E(6).Meaning of “relevant prison offence”
4D_ In this Schedule “relevant prison offence” means—(a) an offence under any of these provisions of the Prison Act 1952—(i) section 39 (assisting a prisoner to escape);(ii) section 40B (conveyance etc of List A articles into or out of prison);(iii) section 40C (conveyance etc of List B or C articles into or out of prison);(iv) section 40CB (throwing articles into prison);(b) an offence under any of these provisions of the Prison Act (Northern Ireland) 1953—(i) section 29(1) (assisting escape from lawful custody);(ii) section 33 (facilitating escape by conveying things into prison);(iii) section 34A (conveyance etc of List A articles into or out of prison);(iv) section 34B (conveyance etc of List B or C articles into or out of prison);(c) an offence under either of these provisions of the Prisons (Scotland) Act 1989—(i) section 41 (unlawful introduction of proscribed articles into a prison);(ii) section 41ZA (provision to and use by prisoners of personal communication devices);(d) a Scottish common law prison offence.Meaning of “Scottish common law prison offence”
4E_(1) In this Schedule “Scottish common law prison offence” means—(a) an offence at common law in Scotland committed by assisting a prisoner in a penal institution in Scotland in escaping or attempting to escape from the institution;(b) an offence at common law in Scotland committed by, intending to facilitate the escape of a prisoner from a penal institution in Scotland, doing any of the following things—(i) bringing, throwing or otherwise conveying anything into the institution;(ii) causing another person to bring, throw or otherwise convey anything into the institution;(iii) giving anything to a prisoner or leaving anything in any place (whether inside or outside the institution).(2) In this paragraph—“penal institution” has the meaning given by section 108 of the Criminal Justice (Scotland) Act 2016;“prisoner” means a person who is detained or imprisoned in such an institution. Other interpretation
4F_(1) In this Schedule—“article associated with an unmanned aircraft” includes—(a) any component, part or product of an unmanned aircraft, and(b) any equipment, including an electronic device, relating to an unmanned aircraft;“premises” includes any place and, in particular, includes—(a) any vehicle;(b) any offshore installation;(c) any renewable energy installation (that expression having the same meaning as in Chapter 2 of Part 2 of the Energy Act 2004);(d) any tent or movable structure;“property” includes land and buildings;“vehicle” includes any vessel, aircraft (whether or not an unmanned aircraft) or hovercraft.(2) A reference in this Schedule to a provision of subordinate legislation (whenever the reference is passed or made) is a reference to that provision as it has effect from time to time.(3) Sub-paragraph (2) is subject to any contrary provision made in subordinate legislation.”Member’s explanatory statement
This amendment would bring together all of the interpretation provision relating to paragraphs 1 to 4 of this Schedule (including some new interpretation provision) and locate it immediately after paragraph 4.
32: Schedule 8, page 70, line 15, leave out “small unmanned aircraft: permissions for certain flights” and insert “certain unmanned aircraft: permission for flights over or near aerodromes”
Member’s explanatory statement
This amendment would update the reference to the title of article 94A to reflect the change made by the Air Navigation (Amendment) Order 2020.
33: Schedule 8, page 70, line 20, at end insert—
“(v) article 265A(2) (various requirements under the Unmanned Aircraft Implementing Regulation relating to UAS operators);(vi) article 265B(2) (various requirements under the Unmanned Aircraft Implementing Regulation relating to remote pilots);(h) an offence under article 265B(3) of the Air Navigation Order 2016 committed by the contravention of a relevant requirement set out or referred to in any of the following provisions of that Order—(i) article 265B(5)(a), (h), (i) or (j);(ii) article 265B(6);(iii) article 265B(7)(e), but only insofar as that requirement (to comply with authorised limitations and conditions) regulates the operation of an unmanned aircraft during flight;(iv) article 265B(7)(f), (g) or (i);(v) article 265B(8), but only insofar as that requirement (conditions under which operations in the framework of the model aircraft clubs or associations may be conducted) regulates the operation of an unmanned aircraft during flight.”Member’s explanatory statement
This amendment would add references to new offences created by the Air Navigation (Amendment) Order 2020.
34: Schedule 8, page 75, line 6, leave out paragraph 7
Member’s explanatory statement
This amendment would remove paragraph 7 because the interpretation provision would be contained in the new paragraphs 4A to 4F proposed by another amendment standing in my name.
Amendments 23 to 34 agreed.
Schedule 9: Police powers relating to requirements in the ANO 2016
35: Schedule 9, leave out Schedule 9 and insert the following new Schedule—
“SCHEDULEUNMANNED AIRCRAFT: POWERS OF POLICE OFFICERS RELATING TO ANO 2016Provision by remote pilots of evidence of competency
1_(1) A constable may exercise the power conferred by this paragraph in relation to a person (P) if the constable—(a) has reasonable grounds for believing that—(i) a flight by an unmanned aircraft is taking place or has taken place, and(ii) P is or was the remote pilot of the unmanned aircraft for the flight, and(b) has reasonable grounds for suspecting that a relevant competency requirement is or was applicable as respects P and the unmanned aircraft and the flight.(2) The constable may require P to provide such evidence as the constable considers reasonable of P’s compliance, as respects the unmanned aircraft and the flight, with a relevant competency requirement.(3) In this paragraph “relevant competency requirement” means a requirement imposed by, or referred to in, any of the following provisions of the ANO 2016—(a) article 265B(5)(b) (open category: having the appropriate competency in the intended sub-category of flight);(b) article 265B(5)(c) (open category: carrying proof of competency);(c) article 265B(7)(b) (specific category: having the appropriate competency);(d) article 265B(7)(c) (specific category: carrying proof of competency);(e) article 265B(8) (specific category: having the appropriate competency specified in the authorisation relating to the flight);(f) article 265E(2)(b)(ii) (tethered small unmanned aircraft of 250g or more: competency).(4) P is guilty of an offence if—(a) P fails to comply with a requirement imposed by a constable under this paragraph to provide evidence of P’s compliance, as respects an unmanned aircraft and a flight, with a relevant competency requirement,(b) P is or was the remote pilot of the unmanned aircraft for the flight, and(c) the relevant competency requirement is or was applicable as respects P and the unmanned aircraft and the flight.(5) A person who is guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding level 2 on the standard scale.(6) Paragraph 10 includes a defence to the offence under this paragraph.Provision by remote pilots of information about UAS operators
2_(1) A constable may exercise the power conferred by this paragraph in relation to a person (P) if the constable— (a) has reasonable grounds for believing that—(i) a flight by an unmanned aircraft is taking place or has taken place, and(ii) P is or was the remote pilot of the unmanned aircraft, and(b) has reasonable grounds for suspecting that a relevant registration requirement is or was applicable as respects the UAS operator for the unmanned aircraft and the flight.(2) The constable may require P to provide such information as the constable considers reasonable as to the identity of—(a) the person or persons who are or were the UAS operator for the flight, or(b) the person or persons who made the unmanned aircraft available for use by P.(3) In this paragraph “relevant registration requirement” means a requirement imposed by, or referred to in, any of the following provisions of the ANO 2016—(a) article 265A(5)(a) (open category: registration of UAS operator);(b) article 265A(5)(b) (open category: display of UAS operator’s registration number);(c) article 265A(6)(a) (specific category: registration of UAS operator);(d) article 265A(6)(b) (specific category: display of UAS operator’s registration number);(e) article 265A(7)(a) (specific category: registration of UAS operator);(f) article 265A(7)(b) (specific category: display of UAS operator’s registration number);(g) article 265A(9)(a) (specific category: registration of UAS operator);(h) article 265A(9)(b) (specific category: display of UAS operator’s registration number);(i) article 265E(1)(a) (registration of tethered small unmanned aircraft of 250g or more);(j) article 265E(1)(b) (display of registration number of tethered small unmanned aircraft of 250g or more).(4) P is guilty of an offence if—(a) P fails to comply with a requirement imposed by a constable under this paragraph to provide, as respects a flight by an unmanned aircraft, information as to the identity of a person,(b) P is or was the remote pilot of the unmanned aircraft for the flight,(c) the relevant registration requirement which the constable had reasonable grounds for suspecting is or was applicable as respects the UAS operator for the unmanned aircraft and the flight is or was so applicable, and(d) at the time when the constable imposed the requirement, P could have provided information of the kind which the constable required P to provide.(5) A person who is guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding level 2 on the standard scale.(6) Paragraph 10 includes a defence to the offence under this paragraph.Provision by UAS operators of evidence of registration
3_(1) A constable may exercise the power conferred by this paragraph in relation to a person (P) if the constable—(a) has reasonable grounds for believing that—(i) a flight by an unmanned aircraft is taking place or has taken place, and (ii) P is or was the UAS operator of the unmanned aircraft for the flight, and(b) has reasonable grounds for suspecting that a relevant registration requirement is or was applicable as respects P and the unmanned aircraft and the flight.(2) The constable may require P to provide such evidence as the constable considers reasonable of P’s compliance, as respects the unmanned aircraft and the flight, with a relevant registration requirement.(3) In this paragraph “relevant registration requirement” has the same meaning as in paragraph 2.(4) P is guilty of an offence if—(a) P fails to comply with a requirement imposed by a constable under this paragraph to provide evidence of P’s compliance, as respects the flight, with a relevant registration requirement,(b) P is or was the UAS operator of the unmanned aircraft for the flight, and(c) the relevant registration requirement is or was applicable as respects P and the unmanned aircraft and the flight.(5) A person who is guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding level 2 on the standard scale.(6) Paragraph 10 includes a defence to the offence under this paragraph.Provision by UAS operators of information about remote pilots
4_(1) A constable may exercise the power conferred by this paragraph in relation to a person (P) if the constable—(a) has reasonable grounds for believing that—(i) a flight by an unmanned aircraft is taking place or has taken place, and(ii) P is or was the UAS operator of the unmanned aircraft for the flight, and(b) has reasonable grounds for suspecting that a relevant competency requirement is or was applicable as respects the remote pilot for the unmanned aircraft and the flight.(2) The constable may require P to provide such information as the constable considers reasonable as to the identity of the person or persons who are or were the remote pilot or remote pilots of the unmanned aircraft for the flight.(3) In this paragraph “relevant competency requirement” has the same meaning as in paragraph 1.(4) P is guilty of an offence if—(a) P fails to comply with a requirement imposed by a constable under this paragraph to provide information as to the identity of a person,(b) P is or was the UAS operator of the unmanned aircraft for the flight,(c) the relevant competency requirement which the constable had reasonable grounds for suspecting is or was applicable as respects the remote pilot for the unmanned aircraft and the flight is or was so applicable, and(d) at the time when the constable imposed the requirement, P could have provided information of the kind which the constable required P to provide.(5) A person who is guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding level 2 on the standard scale.(6) Paragraph 10 includes a defence to the offence under this paragraph.Provision by remote pilots or UAS operators of other information etc
5_(1) A constable may exercise the power conferred by this paragraph in relation to a person (P) if the constable has reasonable grounds for believing that— (a) a flight by an unmanned aircraft is taking place or has taken place, and(b) P is or was the remote pilot or the UAS operator of the unmanned aircraft for the flight.(2) The constable may require P to provide such information, documentation or evidence that is of a specified description as the constable considers reasonable.(3) In this paragraph “specified description” means a description specified by the Secretary of State by regulations for the purposes of this paragraph.(4) Regulations under this paragraph that specify a description of information, documentation or evidence may provide for conditions that must be met before a constable may require P to provide information, documentation or evidence that is within that description.(5) P is guilty of an offence if—(a) P fails to comply with a requirement imposed by a constable under this paragraph to provide information, documentation or evidence,(b) P is or was the remote pilot or the UAS operator of the unmanned aircraft for the flight, and(c) at the time when the constable imposed the requirement, P could have provided information, documentation or evidence of the kind which the constable required P to provide.(6) A person who is guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding level 2 on the standard scale.(7) Paragraph 10 includes a defence to the offence under this paragraph.Provision of evidence of consents for certain flights
6_(1) A constable may exercise the power conferred by this paragraph in relation to a person (P) if the constable—(a) has reasonable grounds for believing that—(i) a flight by an unmanned aircraft is taking place or has taken place, and(ii) P is or was the remote pilot or the UAS operator of the unmanned aircraft for the flight, and(b) has reasonable grounds for suspecting that a provision of the ANO 2016 is or was being contravened unless a relevant consent is or was applicable as respects the unmanned aircraft and the flight.(2) The constable may require P to provide, as respects the unmanned aircraft and the flight, such evidence as the constable considers reasonable of a relevant consent.(3) In this paragraph “relevant consent” means a permission, operational authorisation, LUC, authorisation or certification required by, or referred to in, any of the following provisions of the ANO 2016—(a) article 94A (permission for flights over or near aerodromes);(b) article 265A(1)(b) (operational authorisation, LUC with appropriate privileges, or authorisation);(c) article 265A(1)(c) (certification of UAS and UAS operator);(d) article 265B(1)(b) (operational authorisation, LUC with appropriate privileges, or authorisation);(e) article 265B(1)(c) (certification of UAS and UAS operator);(f) article 265E(3) (tethered small unmanned aircraft: permission from CAA).(4) P is guilty of an offence if—(a) P fails to comply with a requirement imposed by a constable under this paragraph to provide, as respects a flight by an unmanned aircraft, evidence of a relevant consent, (b) P is or was the remote pilot or the UAS operator of the unmanned aircraft for the flight, and(c) the relevant consent is or was applicable as respects the unmanned aircraft and the flight.(5) A person who is guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding level 2 on the standard scale.(6) Paragraph 10 includes a defence to the offence under this paragraph.Provision of evidence of exemptions for certain flights
7_(1) A constable may exercise the power conferred by this paragraph in relation to a person (P) if the constable—(a) has reasonable grounds for believing that—(i) a flight by an unmanned aircraft is taking place or has taken place, and(ii) P is or was, as respects the flight, the remote pilot or the UAS operator of the unmanned aircraft, and(b) has reasonable grounds for suspecting that a provision of the ANO 2016 is or was being contravened unless an ANO exemption is or was applicable as respects—(i) a person and the unmanned aircraft and the flight, or(ii) the unmanned aircraft and the flight.(2) The constable may require P to provide, as respects the unmanned aircraft and the flight, such evidence as the constable considers reasonable of an ANO exemption.(3) In this paragraph “ANO exemption” means an exemption under article 266 of the ANO 2016.(4) The evidence which a constable may require a person to provide under this paragraph includes evidence of the applicability of an ANO exemption to a person, or the unmanned aircraft, as respects the flight.(5) P is guilty of an offence if—(a) P without reasonable excuse fails to comply with a requirement imposed by a constable under this paragraph to provide, as respects P and the unmanned aircraft and the flight, or as respects the unmanned aircraft and the flight, evidence of an ANO exemption,(b) P is or was the remote pilot or the UAS operator of the unmanned aircraft for the flight, and(c) the ANO exemption is or was applicable as respects—(i) P and the unmanned aircraft and the flight, or(ii) the unmanned aircraft and the flight.(6) A person who is guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding level 2 on the standard scale.(7) Paragraph 10 includes a defence to the offence under this paragraph.Power to inspect unmanned aircraft in connection with other powers
8_(1) A constable may require a person in possession of an unmanned aircraft to allow the constable to inspect it if the constable considers that the inspection would assist the constable in deciding whether a power conferred by any of paragraphs 1 to 7 is exercisable.(2) A constable may if necessary use reasonable force for the purpose of exercising the power conferred by this paragraph.(3) A person who fails to comply with a requirement imposed under this paragraph is guilty of an offence.(4) A person who is guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding level 3 on the standard scale.Offence of providing false or misleading information etc
9_(1) A person commits an offence if—(a) anything that the person provides under this Schedule is false or misleading in a material respect, and(b) the person either—(i) knows that it is false or misleading, or(ii) is reckless as to whether it is false or misleading.(2) A person who is guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding level 3 on the standard scale.Provision of information etc at a police station
10_(1) A person (P) may comply with a requirement imposed by a constable under any of paragraphs 1 to 7 by providing what the constable required at a police station specified by P at the time when the constable imposed the requirement (the “nominated police station”)—(a) within seven days beginning with the day after which the constable imposed the requirement, or(b) if it is not reasonably practicable to do so within that seven day period, as soon after the end of that period as is reasonably practicable.(2) It is a defence for a person charged with an offence under any of paragraphs 1 to 7 in respect of a failure to comply with a requirement imposed by a constable to prove that it was not reasonably practicable to provide what the constable required at the nominated police station before the day on which the proceedings were commenced.(3) For that purpose, the proceedings against a person for an offence are commenced when—(a) in the case of proceedings in England and Wales—(i) an information is laid for the offence,(ii) the person is charged with the offence under Part 4 of the Police and Criminal Evidence Act 1984, or(iii) a written charge is issued against the person for the offence under section 29 of the Criminal Justice Act 2003;(b) in the case of proceedings in Scotland, a complaint is served on the person in respect of the offence;(c) in the case of proceedings in Northern Ireland—(i) a summons or warrant is issued under Article 20 of the Magistrates’ Courts (Northern Ireland) Order 1981 in respect of the person and the offence,(ii) a summons is issued under section 93 of the Justice Act (Northern Ireland) 2015 in respect of the person and the offence, or(iii) the person is charged with the offence after being taken into custody without a warrant.Interpretation
11_(1) In this Schedule the following expressions have the same meanings as in the ANO 2016 (see Schedule 1 to the ANO 2016)—“remote pilot”;“UAS operator”.(2) A reference in this Schedule to a provision of subordinate legislation (whenever the reference is passed or made) is a reference to that provision as it has effect from time to time.(3) Sub-paragraph (2) is subject to any contrary provision made in subordinate legislation.”Member’s explanatory statement
This amendment would replace Schedule 9 with a new Schedule. A new regulatory regime for unmanned aircraft under Commission Implementing Regulation (EU) 2019/947 has come into effect. The police powers in Schedule 9 now need to relate to that regime. Since this amendment was originally tabled, paragraph 7 has been altered (by the addition of paragraph (5)(c)).
Amendment 35 agreed.
Schedule 10: Fixed penalties for certain offences relating to unmanned aircraft
36: Schedule 10, page 81, line 40, leave out from beginning to “this” in line 2 on page 82 and insert—
“(3) After article 265F of the ANO 2016 insert—“Fixed penalty offences265G. In the case of an offence under any provision of”Member’s explanatory statement
The Air Navigation (Amendment) Order 2020 includes provision adding into the ANO 2016 new provisions which provide for offences. This amendment would move the new provision made by paragraph 2(3) so that it comes after those new offences.
Amendment 36 agreed.
Schedule 11: Amendment and enforcement regulations
Amendments 37 to 43
37: Schedule 11, page 88, line 31, leave out from second “make” to end of line 8 on page 89 and insert “any amendment of this Act which is authorised by sub-paragraph (3) or (4).
(2) The Secretary of State may by regulations make any amendment of this Act which is authorised by sub-paragraph (3) or (4).(3) The Order in Council or regulations may make such amendments of Schedule 8 as the appropriate authority considers appropriate for or in connection with—(a) maintaining the effect of a provision of that Schedule in a case where it would otherwise cease to be effective because of provision made in any relevant subordinate legislation; or(b) extending a provision of that Schedule to apply to an offence relating to unmanned aircraft under relevant subordinate legislation to which the provision does not already apply.(4) The Order in Council or regulations may make such amendments of section 13 and Schedule 9 as the appropriate authority considers appropriate for or in connection with—(a) maintaining the effect of a provision of that section or Schedule in a case where it would otherwise cease to be effective because of provision made in any relevant subordinate legislation;(b) extending a provision of that section or Schedule to apply to an offence relating to unmanned aircraft under relevant subordinate legislation to which the provision does not already apply; or(c) conferring, in consequence of provision made in any relevant subordinate legislation, a police power that corresponds to a power conferred by Schedule 9 as enacted.(5) For the purposes of sub-paragraph (4)(c) each of the following police powers “corresponds to a power conferred by Schedule 9 as enacted”—(a) a power to require a person who the constable has reasonable grounds for believing is or was the remote pilot of an unmanned aircraft for a flight (“A”)—(i) to provide information, documentation or other evidence relating to A’s compliance with any requirement relating to A’s competency to be the remote pilot of the unmanned aircraft for the flight; (ii) to provide information relating to the identity of a person who is or was the UAS operator of the unmanned aircraft, or made the unmanned aircraft available to A, for the flight;(iii) to provide information, documentation or other evidence relating to the existence of a consent which is or was required for the flight; or(iv) to provide information, documentation or other evidence relating to the application to the flight of an exemption from a requirement which would otherwise be applicable to the flight;(b) a power to require a person who the constable has reasonable grounds for believing is or was the UAS operator of an unmanned aircraft for a flight (“B”)—(i) to provide information, documentation or other evidence relating to B’s compliance, as respects the flight, with any requirement relating to registration of B as the UAS operator of the unmanned aircraft;(ii) to provide information, documentation or other evidence relating to B’s compliance, as respects the flight, with any requirement relating to registration of the unmanned aircraft;(iii) to provide information relating to the identity of a person who is or was the remote pilot of the unmanned aircraft for the flight;(iv) to provide information, documentation or other evidence relating to the existence of a consent which is or was required for the flight;(v) to provide information, documentation or other evidence relating to the application to the flight of an exemption from a requirement which would otherwise be applicable to the flight;(c) a power to require a person who is in possession of an unmanned aircraft to allow the constable to inspect it—(i) if the constable considers that the inspection would assist the constable in deciding whether any other power conferred by Schedule 9 is exercisable;(ii) for the purpose of checking whether a requirement to display any number, mark or information on the unmanned aircraft is being complied with.(6) The provision that may be made under sub-paragraph (4)(c) in connection with conferring a police power includes—(a) provision authorising a constable to use reasonable force in the exercise of the power;(b) provision for a person to be guilty of an offence if the person—(i) does not comply with a requirement imposed by a constable in the exercise of the power, or(ii) knowingly or recklessly provides a constable exercising the power with information, documentation or evidence that is false or misleading in a material respect.(7) In this paragraph—“appropriate authority” means—(a) Her Majesty, in relation to an Air Navigation Order;(b) the Secretary of State, in relation to regulations;“relevant subordinate legislation” means—(a) an Air Navigation Order;(b) regulations made under paragraph 3 of this Schedule;(c) regulations made under Article 57 or 58 of the UK Basic Regulation;(d) regulations made under Article 15 of the UK Implementing Regulation;“remote pilot”, in relation to an unmanned aircraft, means a person (however described) conducting the flight of the unmanned aircraft (including a person who is a remote pilot within the meaning of the ANO 2016 — see Schedule 1 to the ANO 2016);“UAS operator”, in relation to an unmanned aircraft, means a person (however described) who is the operator of the unmanned aircraft (including a person who is a UAS operator within the meaning of the ANO 2016 — see Schedule 1 to the ANO 2016).”Member’s explanatory statement
This amendment would introduce a single power in place of the powers currently in paragraphs 1 and 4. That single power would be wider than the current Bill powers insofar as it can be used to amend Schedule 9. It would allow the police powers there to be replaced with new powers of the same kind (eg. if the regulatory regime relating to unmanned aircraft is replaced).
38: Schedule 11, page 89, line 14, leave out from “makes” to end of line 16 and insert “, under paragraph 1(1) of Schedule 11 to the Air Traffic Management and Unmanned Aircraft Act 2020, provision authorised by paragraph 1(3)(b) or (4)(b) or (c) of that Schedule;”.”
Member’s explanatory statement
This amendment would be consequential on the changes to paragraph 1 of Schedule 11 made by the amendment standing in my name. It provides for the cases when draft affirmative Parliamentary procedure is to apply to the exercise of the power in paragraph 1 in an Air Navigation Order.
39: Schedule 11, page 90, line 14, leave out sub-paragraph (7)
Member’s explanatory statement
This amendment would leave out sub-paragraph (7), because an equivalent power is already available under paragraph 10 of Schedule 8 to the European Union (Withdrawal) Act 2018.
40: Schedule 11, page 90, line 19, leave out from “Regulation” to end of line 20 and insert “or provision made under that Regulation;
(b) the UK Implementing Regulation or provision made under that Regulation;(c) regulations made under Article 57 or 58 of the UK Basic Regulation.”Member’s explanatory statement
This amendment would allow for the creation of offences or civil penalties to enforce compliance with requirements imposed by regulations made under the UK Delegated or Implementing Regulation or regulations made under Article 57 or 58 of the UK Basic Regulation.
41: Schedule 11, page 90, line 22, leave out paragraph 4
Member’s explanatory statement
The amendment would remove paragraph 4 because it is replaced by paragraph 1 as amended by the amendment standing in my name.
42: Schedule 11, page 91, line 5, at end insert—
““UK Basic Regulation” means Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/ 2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91;”Member’s explanatory statement
This amendment inserts the definition of “UK Basic Regulation”.
43: Schedule 11, page 91, line 11, at end insert—
“and a reference to the UK Basic Regulation, the UK Delegated Regulation or the UK Implementing Regulation is to that Regulation as it forms part of domestic law on and after IP completion day and as amended from time to time.”Member’s explanatory statement
This amendment ensures that references to these three instruments will be “ambulatory”— that is, the references will catch any amendments made to those instruments in their “domesticated” form as retained EU law.
Amendments 37 to 43 agreed.
In the Title
44: In the Title, line 2, after “2000” insert “and about airport slot allocation”
Member’s explanatory statement
This amendment is consequential on the Government amendment that inserts a new Clause after Clause 11 relating to airport slot allocation. It would amend the long title of the Bill to additionally include a reference to airport slot allocation.
Amendment 44 agreed.
Title, as amended, agreed.
House adjourned at 6.37 pm.