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Aviation Safety (Amendment) Regulations 2023

Volume 831: debated on Tuesday 4 July 2023

Motion to Regret

Moved by

That this House regrets the delayed implementation of measures contained in the Aviation Safety (Amendment) Regulations 2023 (SI 2023/588), and that the Regulations raise concerns about the speed at which the Department for Transport is implementing its secondary legislative programme and the quality of information contained in Explanatory Memoranda provided by the Department.

Relevant document: 43rd Report from the Secondary Legislation Scrutiny Committee

My Lords, the regulations which are the subject of this regret Motion amend four retained EU regulations. Two of them are amended to implement revised standards and practices adopted by the International Civil Aviation Organization. These involve implementing new safety management systems for the production and maintenance of aircraft. The other two regulations are amended to delay changes in balloon and glider licensing until 2025.

I have laid this regret Motion because I am concerned about the delays and their impact on issues relating to aviation safety. The Secondary Legislation Scrutiny Committee reported that the original Explanatory Memorandum was inadequate because it failed even to attempt to explain why, in the view of the Department for Transport, these delays were not a problem.

There is a tendency for Department for Transport explanatory memoranda to be rather sketchy. By way of background, it is important to remind ourselves that the department has a long-standing problem with managing its legislation, much of which flows from our international treaty obligations. The department fell badly behind in managing legislation for the maritime sector, some of which was up to 20 years overdue. Huge efforts have been made to catch up, and I pay tribute to the Minister for hers. But now the department is faced with a similar problem on aviation standards. Prior to Brexit, new standards based on the Chicago convention on civil aviation would have been automatically implemented via the EU. Now, we have to do it ourselves. The safety management changes were implemented in the EU in 2021—and, by the way, that was already rather late.

This is two years later for us, and this legislation allows until July 2024 for it to be implemented, after which firms are given a further two years to comply. So we are well behind the curve—a cumulative delay of over a decade since the ICAO regulations were introduced. This picture is becoming familiar. In the past, we relied on the combined resources of what was then the 28 EU nations and their expertise to devise and implement technical modernisation. Now, we have to do it on our own. It is complex, expensive and time consuming, and the delays are putting our manufacturers and aviation industry, in this case, at a disadvantage.

My concerns are as follows. This industry has a complex supply chain, with many hundreds—even thousands—of firms, so it is essential that appropriate safety management systems are in place for the design and production of aeronautical parts. My specific questions to the Minister are as follows. First, the Government say that this delay will not impact safety, but I cannot see how that can be: what is the point of having a safety management system if it does not have any impact on safety? Secondly, as the legislation makes clear, it is for the CAA to review and approve the new SMSs. Can the Minister tell us specifically how much the CAA has been allocated in additional funding to undertake this work? Can she reassure us that these resources will be adequate? The Minister will not be surprised by these questions; I repeatedly ask about resources allocated to the CAA.

The second part of the regulations relates to balloon and glider licensing, changing the current deadline to transfer to the new system, which was inherited from EASA, from the end of 2023 to the end of 2025. The Explanatory Memorandum justifies this simply by saying that

“the CAA is undertaking a … review of private pilot licensing which may result in significant changes to … licensing requirements”.

The Department for Transport calls this the pilot “licensing and training simplification” project. It was initiated by the previous Secretary of State, whom noble Lords will recall is a keen general aviation enthusiast.

As background, it is important to note that the pandemic encouraged major growth in the market for private aviation—I note that the Prime Minister seems to be quite keen on private aviation as well, although I do not think he is a pilot himself. There is now a flourishing secondary market in private flights, and, as a Cardiff citizen, I am acutely aware of the complexities of this market, revealed to many of us for the first time by the tragic accident that led to the death of the footballer, Emiliano Sala. Many of us did not understand how complex this whole set-up was.

There are a number of worrying grey areas relating to implementing the legislation, which again falls to the CAA. The expansion of the market has intensified the obvious challenges it faces in inspecting and implementing the regulations. So can the Minister assure us, once again, that the CAA has adequate resources? My concern is that the UK has a reputation as an aviation leader, with high standards of safety compared with, for example, the USA, where it is much easier to get a private pilot’s licence. We should not sacrifice that in the chase for an ephemeral benefit of Brexit.

I am concerned about what these regulations reveal about pressures within the Department for Transport. Its defence to the Secondary Legislation Scrutiny Committee’s criticism of its Explanatory Memoranda, and the delays in bringing forth this legislation, was that it has to make “prioritisation decisions” regarding regulation. In the light of these constraints, it is worrying that the department also faces additional programmes that will create challenges for it—for example, those imposed by the revocation of EU law Bill, shortly to be an Act. On top of this, there is the general aviation change programme, which now faces its own 25% reduction in resources—I am told that the amount of money allocated to the CAA for that programme has been reduced by 25%—so can the Minister explain why the funding has been cut? Can she explain whether the Government intend to pursue this programme, despite the cut in funding?

Overall, there is huge public concern about basic day-to-day issues that are crying out for legislation in relation to transport. There is technological change and challenge—for example, with issues like e-scooters and e-bikes, which desperately need regulation. There is also a crisis in our railways, which urgently need legislation to create Great British Railways. I am concerned that the Government are pursuing policies such as the reform of private flying while they tell us that they have no parliamentary time in their programme for such day-to-day issues as the state of the railways and the reform of train fares. So my purpose in laying this regret Motion was to give the Minister the opportunity to explain to us why there are delays in aviation legislation now and why there are such huge pressures within the department in terms of prioritising the various strands of its activity, specifically its legislative activity.

I rise again in this crowded Chamber to discuss a transport issue. This sort of debate should be divided into two. Let us first look at the instrument itself, rather than the problems with getting it here. Civil aviation in general is really quite safe. The very sad interruption to that general trend was of course with the Boeing 737 MAX, but, otherwise, the trends have been quite positive. This is based on a mechanism: the Chicago convention and the ICAO processes. I knew this was quite old, but I looked it up and saw that the convention was signed by 52 nations before the end of the Second World War, on 7 December 1944. It became legal, if that is the right term—I do not do conventions often—or rather it came into force, on 4 April 1947.

It is a sort of treaty obligation, but it is a bit looser in being a convention. In practice, the industry, over the years, has understood the value of behaving together. So most significant aviation nations in Europe, one way or another, through the European system, sought to achieve harmonisation with the ICAO regulations of the time. It seems to me, reading through the material, that the essence is one of delay. I think that was the point made by the noble Baroness, Lady Randerson. The test, to some extent, has to be: what is the significance of the delay, particularly with respect to safety?

As I read the instrument—in fact, I would not claim to be so industrious as having read the instrument; it is more realistic to say as far as I have read the repeated Explanatory Memorandums—there are four measures in this: two principally on safety management systems and a few minor modifications, and two on pilot licensing, glider or sailplane licensing and balloon licensing.

Safety management systems are a good thing. It is not trivial to adopt a safety management system approach; it is a culture system in many ways. It is about working in anticipation and getting the right management processes in the right place, et cetera. The time to get them right is quite significant, so the delays are necessary. For the new regulations, you are looking at: what is the safety position of the current situation compared with the legacy regulations? How much safer or more efficient will new regulations be?

Sometimes when people are arguing for change and improvement they forget the risks of transition. Here, we are working in an environment where the legacy systems are pretty good. There is a significant risk, should the transition be accelerated beyond that which the CAA, on the one hand, and the industry, on the other, can cope with. Similarly, the pilot reforms also make sense, but, once again, changing from the legacy systems to a rationalised approach should also improve safety.

Transition involves risk, so extending to optimise it also makes sense. Therefore, starting from where we are now, the SI is a good thing. However, the part of the noble Baroness’s argument that I sympathise with is that, had this work started sooner and had it been handled more effectively, the net safety would have been higher. I think that this is the essence of the concern about the regulation.

The other area that concerns me about the essence of the process as a negative resolution is the extent to which the Explanatory Memorandum is able to let lay people—namely, people who do not have expertise in this area—sensibly participate. That is rather nicely summed up by the Minister herself in her correspondence with the Secondary Legislation Scrutiny Committee:

“We are clear that we must set out the appropriate level of detail on the policy changes in the EM, and accept that in this case we fell short. I recognise too that the EM was not as accessible to a lay reader as it should have been”.

It got worse, because a new EM was produced, but somewhere along the way it became not evident that there was a new EM. The Printed Paper Office had not heard of it before this morning. There will be all sorts of explanations for that, but I recommend to the Minister that she takes an aviation approach to this, and a very old aviation rule is: “If it can go wrong, it will go wrong”—and it did, because got a revised Explanatory Memorandum.

Was it good enough? It could be better. First, it should have painted a broader picture for the lay reader. It was not clear whether it was taking a dangerous situation and solving that danger, or whether it was an incremental movement, bringing regulations into line with international practice and into a safer environment. I believe that it was the latter, but that did not come out in the EM; the fact did not come out that transition, in a complex environment which is working reasonably well, is a real danger and that you have to give it the right amount of time.

The Explanatory Memorandum should have explained the difference between the legacy systems. You almost get the impression that there were no systems there for balloons and sailplanes, whereas there is a long history of regulation, which is quasi-voluntary, in the sense that it is organised by the bodies that run those two areas of aviation. Nevertheless, it has been developed with the CAA and is reasonably good. It should have been better brought out that there were risks with transition and that they would have been fewer if done at an orderly pace.

Finally, the document itself had no subparagraph references in paragraph 7. Those of us who live and die by the SI know that paragraph 7 of an Explanatory Memorandum is where the real story is told. The real story may have been told in paragraph 7 of the new Explanatory Memorandum, except that we have no subparagraph numbers. Because it had no subparagraph numbers, the cross-referencing within it was, to some extent, very difficult to follow. I am sure that there will be an explanation for that, but to go back to my point about “If it can go wrong, it will go wrong”, it did go wrong. It is necessary, when bringing things such as EMs up to date, that one checks from the beginning to the end whether any changes have arrived where they need to be, which is my in-tray and that of the noble Baroness, Lady Randerson.

What to do about this? The quality of EMs—across the board, to some extent, but certainly from the transport department—in recent years has given us concerns. Perhaps it is unfair to call it quality; it is the shape of them and the fact that they do not spend enough time explaining where we are, where we are trying to get to, and why—as opposed to saying, “Well, we will change this paragraph to that paragraph”. There should be more understanding of transition and —if I am right that the last two dates in the document are wrong—there need to be processes that make sure that there is good proofreading. I invite the noble Baroness, Lady Randerson, the Minister and officials to have a conversation about this. For this process to have any value at all, it all depends on the quality and breadth of the Explanatory Memorandum. We could help to get across to officials what we would see as being more valuable so as to have a more informed debate on these issues.

I am extremely grateful to the noble Baroness, Lady Randerson, and the noble Lord, Lord Tunnicliffe, for their input this evening. I am particularly grateful for the collaborative words from the noble Lord, Lord Tunnicliffe. It is hard to find fault with much of what he said and we recognise that, when it comes to aviation safety, transition is really important. It is an extremely complex area. We are already very safe and we must not do anything to upset that applecart as we put in interventions that will make things even safer.

I would like to address the broad narrative around the concerns raised by the noble Baroness, Lady Randerson. Noble Lords will know that I take great interest in the secondary legislation programme, even though I am not the SI Minister in the department, because of the valid scrutiny that our secondary legislation programme gets in your Lordships’ House. I too am keen to get it right, because it is as painful for me—perhaps even more so—as it is for them to have to stand in front of noble Lords and say that, on this occasion, I am not particularly proud of the work my department did on this SI. I want perfection and this was definitely not perfection—it was a long way from that. We can and we must do better. As I have said, we have a very strong record on aviation safety and we are committed to maintaining and improving those high safety standards. When we do not meet those high standards, it is right that we are subject to immense scrutiny.

Some months ago, the department completely reviewed its approach to secondary legislation and implemented improved processes and training. I think the issue here is that that is still being bedded in. The core team is well aware of what needs to be done but we now need to cascade that throughout the department. We have a lot of secondary legislation, and there are many different groups in the department that do legislation. That is why, when the noble Baroness, Lady Randerson, tries to draw comparisons to, for example, primary legislation on Great British Railways, the two are not really comparable.

Secondary legislation for aviation is often developed with the CAA and then comes to the DfT, and likewise in maritime, where pretty much the whole process is within the Maritime and Coastguard Agency and then comes to a central process. There are a lot of different groups doing the secondary legislation and it is important that they fully understand what is expected by not only the Minister but noble Lords on the other Benches, such that we can get this through in a way that everybody understands and is able to agree with based on the evidence and the information provided.

These regulations amend four retained EU regulations relating to airworthiness and to balloons and sailplanes. The key element, as the noble Lord, Lord Tunnicliffe, mentioned, is the safety management system requirements that require organisations involved in the design or production of aeronautical products or parts to implement an SMS. This represents the culmination of many years of collaborative work across stakeholders, and will ensure better oversight and continuous improvement of aviation safety. It is not really something that one implements once—a safety management system is about continuous improvement.

The SI notes that the implementation timeline for compliance is not immediate, to allow time for organisations to prepare and develop adequate SMSs. This is in line with the guidance from the International Civil Aviation Organization—or ICAO—because, as the noble Lord, Lord Tunnicliffe, noted, it recognises that speed can sometimes be the enemy in these circumstances. That is about the speed of the implementation of the regulation and not the speed of the regulation coming forward; I will address that in due course.

However, we believe that the delay has had negligible impact on safety; obviously, the counterfactual is if had it been brought in earlier. We chose to press forward with the priorities that we did, some of which had enormous safety implications or massive economic implications. Noble Lords will understand that sometimes one has to make decisions in an imperfect world of appropriately limited resources.

The genesis of all of this relates back to our time in the EU. It was the EU that caused a large part of the delay because it did not enact this legislation. It established an SMS rule-making working group and had not made much progress when we left. The CAA picked this up and decided to take it forward with some speed, but it was not particularly developed, plus we wanted to make sure that the regulations covered all the elements that we wanted it to. We also needed to do work on a UK specific impact assessment.

My understanding is that the production of the SI took around 13 months because it was particularly complex and technical. In normal circumstances I would expect an SI of this nature or slightly simpler to get through in nine months. I accept that there was a four-month delay, as one could call it, or time taken to make sure that the regulation was correct.

I am content that the SI itself was done appropriately. What I am not content with, as noble Lords and the Secondary Legislation Scrutiny Committee have noted, is that the Explanatory Memorandum did not do what it should have done. This was enormously disappointing. As I noted, we have put in a new process, and part of that is a requirement that every EM is peer-reviewed by a senior civil servant who had nothing to do with the Explanatory Memorandum. That is part of the process. It did not happen in this case and that oversight will not be repeated.

Indeed, with every single EM that I get now, I ask whether it has had an SCS peer review, which is great—but it is not really up to the Minister to have to remember all these things. I am old, and sometimes I just do not remember. So we need to make sure that it is standard process for all these things. We were able to respond to the SLSC quite quickly, and we answered its queries, but I regret that it ever has to write to me; it makes me sad when I get a letter from the SLSC, and I do not want it to happen in future. I shall focus on this like a hawk.

The changes that the SLSC asked us to make were very much around the table, to provide some clarity on implementation dates for each measure, as well as optional explanations. As the noble Lord, Lord Tunnicliffe, pointed out, it is about telling a story—how we get from where we used to be to where we want to be, what the impact is on stakeholders and whether we have talked to them. It seems quite simple to me, but sometimes I think we make it a little bit more complicated. We also make it clear in the EM that the SMS enhances safety oversight and assurance, that it is a continual process and that there would have been limited, if any, impact on safety due to the delays.

The EM also provides more clarity on the licensing review that supports the reader in understanding the context behind the SI’s amendment to extend the licence transfer date for balloons and sailplanes.

In response to the issues raised by the noble Lord, Lord Tunnicliffe, about there being no paragraph numbers and dates, I am grateful to him for giving us advanced notice, so I was able to go away and investigate. It goes back to the noble Lord’s observation that if anything can go wrong it will go wrong—and my goodness in this case it did. Regrettably, the EM’s numbering issue was introduced during the final formatting checks by the National Archives—TNA. When the document was resaved, the numbering disappeared. By that time it had gone from the Department for Transport to the National Archives, which has apologised for the error. I assure the noble Lord that we treated the matter with urgency and a new version of the EM has been published. So there is now going to be another thing that either the Minister will have to do or instruct her civil servants to do: once it has gone to the National Archives, please make sure that what we have sent has actually been published in the format we expect it to be in. So we will do that, too.

The noble Lord raised concerns about the coming into force dates detailed in the EM. My officials assure me that those dates are not wrong—it is the coming into force date, not the date on which you have to transfer your licence over. But if the noble Lord, Lord Tunnicliffe, raises it, it worries me, because it means that it was not clear enough to be understandable to a lay reader. My officials will closely examine the Explanatory Memorandum again to make sure that there is a clear distinction between the coming into force dates and the implementation dates, where necessary. I know that that probably does not help noble Lords for today but, in future, we will make sure that we provide that absolute clarity.

On the points raised by the noble Baroness, Lady Randerson, on the CAA resources, the CAA does not receive money directly from government—it has a scheme of charges and consults on that scheme each year, which includes consideration of funding for the delivery of its core regulatory functions, including the support of rule-making. So essentially the industry is paying for its regulator, which is how it should be. However, I note that there is an ongoing public body review of the CAA that has looked into issues around effectiveness, transparency, governance and accountability, and I have been really involved in that process. We will publish that report soon, and I hope that noble Lords will find it quite interesting. Top tip—it does say that the CAA is a very good regulator, but it comes up with some helpful recommendations on how we can make it even better. I am enormously grateful to everybody who was involved in that, including the CAA, which approached it in the spirit intended: how do we make a good regulator even better, and what changes might we make?

So I am confident that the secondary legislation programme for both business as usual and REUL will be able to proceed as the noble Baroness, Lady Randerson, would anticipate. On general aviation funding, we pay for a GA change programme at the CAA. The budget was reduced by 20%, owing to the wider government fiscal position, in the most recent budget review. I paid great attention to the different elements, but we are still funding various strategic projects, including the wider GA change programme and including the licensing review, because I believe that that has a significant amount of value.

I believe that I have answered all the questions. If not, I shall write with further detail. For now, I am once again grateful to the noble Baroness.

I thank the Minister and the noble Lord, Lord Tunnicliffe, for taking part in this rather niche debate, as it has turned out. Very briefly, I think the noble Lord and I agree that introducing SMS procedures takes time and is important, and that the work should have started earlier. I congratulate the Minister on her valiant attempt to blame the EU for the delay, but actually the EU introduced this two years ago and it is quite difficult to blame the EU for the fact that we are here two years later.

Explanatory Memoranda are important. Clearly, the deficiencies that are occurring are caused by one of two things: either the department does not care about them—I am absolutely sure that that is not the case—or it is under so much pressure that it has not had the time to do them properly or to check them properly. I would be delighted to have the conversation that the noble Lord suggested.

Finally, I say to the Minister that there is increasing concern in the industrial sector, not just in aviation but in the automotive industry, that the Government are failing to keep pace with the latest EU standards. It is not just about adopting those standards that were adopted years ago by the EU; it is about the fact that the EU is changing its standards as we sit here, because it is modernising in the face of technology. Whether the Government like it or not, our industrialists need to follow those standards, because they are set not just across Europe but across large parts of the world. There is concern that the Government need to really up the pace of modernisation. With that, I am happy to withdraw the Motion.

Motion withdrawn.

House adjourned at 8.25 pm.