Lords consideration of regulations relating to Aviation - Mar 12

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

My Lords, this draft instrument will be made using powers in the European Union (Withdrawal) Act 2018 and will be needed if the UK leaves the European Union in March without a deal.

 

The draft instrument corrects five principal EU regulations related to aviation safety, together with a number of Commission implementing regulations made under them. The draft instrument also makes some corrections to domestic legislation which establishes offences and penalties relating to the EU legislation. The most important of these is EU Regulation 2018/1139 —more commonly known as the EASA basic regulation —which establishes a comprehensive regulatory framework for aviation safety in the EU. In particular, it provides for the continued establishment of the European Aviation Safety Agency and the adoption by the European Commission of implementing regulations on aviation safety. These implementing regulations also ensure the EU member states can meet their obligations under the Convention on International Civil Aviation—the Chicago convention.

 

The implementing regulations each deal with a specific aspect of aviation safety regulation, including: the design, construction, maintenance and operation of aircraft; the licensing of flight crew, maintenance engineers and air traffic controllers; the provision of air traffic management and air navigation services; the design and operation of aerodromes. The other principal regulations are: Regulation 3922/91, on technical harmonisation, which has largely been replaced by the EASA basic regulation—but provisions on flight and duty time limitations still apply to the crews of aeroplanes undertaking air taxi, emergency medical service and single pilot commercial air transport operations; Regulation 2111/2005, which establishes the list of air operators banned from operating to the EU on safety grounds; Regulation 996/2010, which sets requirements for the investigation of air accidents and incidents; and, finally, Regulation 376/2014, which establishes requirements for civil aviation occurrence reporting.

 

Many of the corrections we are considering today are to clarify that the retained legislation only applies to the UK. For example, references to “the territory to which the treaties apply” are replaced with “the UK”, and references to “the competent authority” are replaced with references to “the CAA”. Other amendments relate to the relationship between member states. For example, requirements on the mutual recognition of licences are deleted, as are requirements on co-operation and the sharing of information.

 

The draft instrument also reassigns functions that currently fall to EU bodies. The majority of regulatory functions required under the EU regulations are currently undertaken by the competent authorities of member states. These include: licensing pilots, air traffic controllers and maintenance engineers; and certifying the airworthiness of individual aircraft. However, EASA is responsible for a number of functions, including: preparing proposals for new technical requirements and for amendments to existing technical requirements; approving organisations that design aircraft and aircraft engines as well as certifying the design of aircraft and engines types. The CAA will take on these functions, with the exception of those related to management of the EU safety regulatory system, which will be corrected so as to no longer apply. While design certification has formally sat with EASA since 2008, it is not a capability that the CAA has totally relinquished, and we are confident that the CAA will be able both to meet the needs of industry and to fulfil the UK’s international obligation as the “state of design”. The CAA is implementing contingency plans to ensure that it will be able to undertake the new functions effectively from exit day in the event of no deal.

 

The European Commission also has a number of functions under the EU regulations. Most notably, it has the power to adopt regulations, to adopt or amend technical requirements, to impose operating bans on airlines which do not meet international safety standards and make limited specified amendments to the principal EU regulations. All of these legislative functions will be assigned to the Secretary of State.

 

The powers to amend the retained principal EU regulations are very limited and are designed to ensure that the regulatory system can adapt to technical developments and changes to the international standards adopted by the International Civil Aviation Organisation—ICAO. Most notably, the Secretary of State may amend the annexes to the retained principal EU regulations, particularly the ones to the EASA basic regulation. The annexes contain the high-level safety objectives which are implemented through the technical requirements. This power is exercised through regulations subject to the negative resolution procedure.

 

In addition, the draft instrument also revokes four implementing regulations that set out internal procedures for EASA and which will become redundant after exit day. None of the amendments in this instrument changes any of the technical requirements established by the retained EU regulations. All valid certificates, licences and approvals issued by EASA or by EU/EEA states prior to exit day will remain valid in the UK by virtue of the withdrawal Act. The draft instrument provides that such certificates shall be treated as if they were issued by the CAA. The instrument limits the validity of most such certificates to two years after exit day, after which time CAA-issued certificates will be required. However, certificates related to aircraft design will remain valid indefinitely. The CAA needs to issue the safety certificates to have full oversight of aviation safety in the UK in accordance with the UK’s obligations under the Chicago convention.

 

The best outcome is for the UK to leave the EU with a deal, and delivering a deal negotiated with the EU remains the Government’s top priority. However, we must make all reasonable plans to prepare for a no-deal scenario. This draft instrument ensures that, in the event of a no-deal exit, legislation on aviation safety continues to work effectively and that the aviation industry has clarity about the regulatory framework in which it would operate in a no-deal scenario. I beg to move.

My Lords, I am grateful to the noble Baroness for introducing these regulations. It would be good if she could say something further as a result of the Boeing accident a couple of days ago, which brings aviation safety into focus.

 

I have a couple of questions, and I will use the Explanatory Memorandum as a reference because it is easier. My first question is on paragraph 7.2, “Corrections to domestic subordinate legislation”. She said that most aircraft types are subject to EU technical requirements and that will be changed from “EASA aircraft” and “non-EASA” aircraft to “Part-21” and “non-Part-21”. What is the point of this, and has anybody seriously tried to get associate membership of EASA? I know “European” is in the name, which probably means that it is anathema to some members of the Government, but it would be a lot easier. I will probably bring this up when we debate railways as well. EU technical requirements are well known and well respected. We will have CAA technical requirements if this SI goes through. What happens when they diverge? Is there any mechanism for our side to talk to the European side? It is pretty stupid to have technical requirements for aircraft in this country that will be different—even to a small degree—from those in the European Union. Of course, the same applies vice versa. We tend to think only about the problems in this country, but for our planes to be able to fly on the continent, presumably somebody has to confirm with EASA or the Commission that the technical requirements of our planes fit in with their specifications.

 

My second question relates to paragraph 7.5 of the Explanatory Memorandum concerning banned operators. Quite a few rather unpleasant cases over the years come to mind. The paragraph refers to the,

 

“list of aircraft subject to an operating ban in the Community”.

 

That means that there is a list, which is great, but what process will there be for the UK and the European Union to share that list? It would be pretty stupid to have two lists, and I hope that the Minister can give us some comfort that there will be a mechanism for sharing, as this is a very important issue.

 

My last question relates to paragraph 7.8, which refers to,

 

“powers provided for in Single European Sky”.

 

That is an ambition that has not quite been achieved, although it is some of the way there. Do I understand that it will now be dumped, that there will be a single European sky that does not include the UK and that we will have our own little sky? I look forward to the Minister’s responses.

My Lords, I thank the Minister for her opening statement. The Ethiopian Airlines crash has been a salutary reminder of the fundamental importance of aviation safety. Sometimes we take it for granted, but it relies on a complex interlocking of the highest standards for design, manufacture and maintenance, stringent standards for the training of flight crew and air traffic controllers, and exacting standards for the design and operation of airports. As aircraft have become more complex—the crash two days ago illustrates this point extremely well—and the skies become more crowded, the importance of international co-operation on the specification and maintenance of these standards has never been greater.

 

Yet this SI is intended to withdraw us from EASA and hence from access, as of right, to much of that international co-operation. I was very pleased that the Minister confirmed yesterday that the Government want to remain a member of EASA. I have no doubt that the Minister wishes to do so, but it was good to have the reassurance that that was the Government’s position. However, in the present political chaos, we cannot rely on this SI being simply a paper exercise.

 

Last November, the Second Legislation Scrutiny Committee drew our attention to this SI. It drew attention to the impact on CAA resources and to whether the EU will reciprocate in the recognition of licences, certificates and approvals. The UK will continue to have the same technical requirements and standards on exit day but, as the noble Lord, Lord Berkeley, has just said, there are real questions over future changes and over whether and how we will keep in step with the EU. Next week, we will be looking at maritime SIs, and we are way behind in keeping up with the flow of maritime legislation. I have real concerns that in the aviation sector, where technology moves on really fast, we will not be on the ball in changing our standards as fast as the EU.

My Lords, I make my usual statement that I deeply regret being here. I think the idea of leaving the European Union without an agreement is absurd. In many ways, this SI and the many SIs I have worked through illustrate just how bad a situation it will be, but assuming that we are leaving, or have to be ready to leave, the EU without an agreement, I have looked at this SI. Its thickness deterred me from reading it, so my comments are based on the Explanatory Memorandum. Having been in the industry, I look forward to the seminar that the Minister is no doubt about to give us on ICAO. She will no doubt explain how this statutory instrument answers many of the questions that have been asked. I am sympathetic to many of them.

 

I shall restrict myself to two issues. The first is the powers of the Secretary of State. I have dealt with an awful lot of these SIs, and they have the same general characteristic: the stuff that is handled by EU regulators gets handed to UK regulators, and the stuff that is handled by the Commission is transferred to the Treasury. As I understand it, the Treasury is a body in its own right that can make decisions as a body in its own right. In a sense, one would expect the Treasury to be equipped to make those sorts of decisions. Here, paragraph 7.4 of the Explanatory Memorandum states:

 

“Delegated powers in the Basic Regulation are transferred from the Commission”;

 

 

and it ends by introducing a role for Parliament:

 

“Regulations made by the Secretary of State would be subject to negative resolution procedure”.

 

 

Unfortunately, as you read the document, it implies that decisions will be made by the Secretary of State himself, as the natural person. Given recent history, I am not sure that Parliament should be that comfortable with the idea of giving decisions to this Secretary of State, as the natural person. I assume it will not work like that. I assume the department and the Secretary of State will set up systems to advise the Secretary of State to analyse the issue and make sure that when we come to examine the regulations—if we choose to, under the negative procedure—the decisions would be backed up by a proper decision-making system, which the Minister will be happy to present to us. I hope we have reassurance on that point. To some extent, that covers one of the points made earlier in this debate.

 

Reading through the Explanatory Memorandum, I also stumbled across paragraph 7.6, which says:

 

“Corrections made include … removing provisions dealing with the relationship with and cooperation between EU Member States”.

 

 

I know we have had two tragic events recently, but the tremendous improvements made over recent decades in civil aviation safety absolutely depend on worldwide, international co-operation. Therefore, I hope that that paragraph is a technicality and that it will not change the attitude of the British Government to continuing to pursue this strong co-operation through the international bodies. I ask the Minister: what procedures will be put in place and what agreements will be sought to continue to optimise safety through international co-operation?

My Lords, I thank noble Lords for their consideration of this draft instrument. Before I move on to the SI, I am very happy to give noble Lords an update following the tragic accident in Ethiopia. The UK CAA has been closely monitoring the situation, as has the department. It made an announcement just after lunchtime today that it does not currently have sufficient information from the flight data recorder, so as a precautionary measure, it has issued instructions to stop any commercial passenger flights with that aircraft for any operator arriving, departing or overflying UK airspace. The safety directive will be in place until further notice, and of course the CAA remains in close contact with EASA and industry regulators globally.

 

It might be helpful to start by reiterating our position on EASA. We seek continued UK participation in EASA. This will help to ensure high levels of safety, as well as facilitating trade between the UK and the EU. We have the second largest aerospace sector in the world and the largest aviation sector in Europe, so it is not in any of our interests not to participate. It is a critical industry and, of course, safety is critical. This SI is not intended to remove us from EASA; that is a consequence of a no-deal Brexit. We want to see continued participation, but it is not just up to us to decide that. We very much hope that the EU will want us to continue participating in EASA. As the noble Baroness said, we have been deeply involved throughout its history. We very much hope that the EU will agree to our continued participation. However, we need this SI to be in place to ensure that we have a contingency plan; that is what this SI gives us. We very much hope that we will agree a deal and see continued participation in EASA. If we are in a no-deal situation, we expect to move into conversations about our future air transport agreement very quickly, which will also cover safety issues.

 

In response to the noble Baroness, Lady Randerson, who highlighted our response to the SLSC back in December, the mirror image of these regulations is the EU safety regulation. The EU is in the process of adopting the regulation on aviation safety. It will be voted on in the European Parliament tomorrow and at the Council next week. It has already been agreed at the Committee of Permanent Representatives and we expect no issues with its adoption. That EU regulation is ultimately designed to prevent disruption to the EU industry, but it will be beneficial to us as well. It has three strands. First, it will extend the validity of certificates issued by EASA to UK-based design organisations. That extension is initially set at nine months, but the Commission is empowered to extend it if it proves necessary. Secondly, it provides for the continued validity of authorised release certificates for products, parts and appliances, certificates of release to a service issued on completion of maintenance, and airworthiness review certificates issued prior to exit day by organisations approved by the CAA. Finally, it provides that examinations taken at CAA-approved training organisations prior to the entry into force of the regulation will remain valid. We think that the EU’s regulation, as ours, is a sensible contingency measure to have in place for a no-deal exit. It is not a permanent solution, and we very much hope that we agree a deal, and, if we do not, that we are able to negotiate further on safety regulations.

 

The noble Lord, Lord Berkeley, raised the issue of the banned airlines list. I agree that this is a very important list to have. On exit day, the UK list will be established and it will mirror the current EU banned list. The list will be published on the CAA’s website, and it will be updated to reflect the imposition of operating bans. Operating bans are imposed by the refusal or revocation on safety grounds of permission for an airline to operate to the UK or by the refusal or revocation of a third-country operator authorisation. As the noble Baroness, Lady Randerson, pointed out, unlike the EU list, the UK list is not contained in legislation because it does not itself impose the bans, but reflects bans that have been imposed by the exercise of statutory powers. We will, of course, aim to keep the UK list consistent with the EU list as far as possible, and the decision on any operating bans will always be based on advice from the CAA.

My Lords, before the vote we were discussing the banned airlines list. As I said, we will aim to keep the UK list consistent with the EU list, as far as possible. Those decisions on operating bans will be based on advice from the CAA. The method of enforcing that ban will be the same as it is today: the withdrawal of a permit or operating licence. There may be instances where the UK lists will need to deviate: if we have evidence that an airline does not meet international standards, we may want to prohibit it flying to the UK and add it to the UK list, even if the airline is still permitted to fly to the EU. We are working closely on implementing that list. There may be some resource implications, but we expect to be able to use existing resources within the CAA. As with all these things, we very much hope that we will be able to maintain close co-operation with the EU and maintain the same list.

 

The noble Lord, Lord Berkeley, raised the issue of the single European sky. We have already discussed the statutory instrument on air traffic management, and we absolutely recognise the need for our air traffic arrangements to remain in line with the rest of Europe. Safe and efficient air traffic management is a priority for us, and we will continue to work with European partners on it.

 

The new delegated powers were raised by all noble Lords. As I said, the draft instrument gives us delegated powers to make regulations, subject to negative resolution parliamentary procedures. The powers relate to the amendment or adoption of detailed technical requirements, which need to be updated regularly to reflect technical developments, changes to international standards, recommendations arising from accident investigations and so on. As the noble Baroness, Lady Randerson, pointed out, these changes come thick and fast. This reflects existing UK practice, where the technical requirements for aviation safety are contained in secondary legislation made using the negative resolution procedure and the fact that the EU requirements were adopted under Commission implementing regulations.

 

The draft instrument contains a power for the Secretary of State to amend the essential requirements contained in the annexes to the EASA basic regulation by making regulations subject to the negative power. These very limited powers are designed to ensure that the regulatory system can adapt to technical developments and changes to international standards adopted by the International Civil Aviation Organization to ensure a continued high level of safety. I understand the noble Baroness’s concern about consultation involving the CAA. We will of course always base these decisions on advice from the CAA, but the powers are very limited and relate only to adopting international standards, which we will continue to follow.

On consultation, can the Minister assure me that there will no more use of non-disclosure agreements for this ongoing consultation? That is happening at the moment for whatever reason, but it does not need to be a precedent that carries on after Brexit.

I agree with the noble Lord. We have used NDAs when commercial issues are at hand, for example on our US agreement. The aviation industry is not silent about Brexit. It has been very clear about its position. It is supportive of this draft instrument, but it is not supportive of no deal or leaving EASA; it is making that very clear and has done for quite some time. I genuinely do not feel that the industry has in any way been restricted by talking about its views on Brexit; it has been very vociferous on that point, and we are very aware of its views, which have influenced our position on EASA membership.

 

The noble Lord, Lord Tunnicliffe, asked about the removal of provisions dealing with the relationship with and co-operation between member states. As I said previously, our future relationship with EASA is going to be a matter for negotiation. We have been clear on our position. We very much hope that the EU will welcome that. It has been quite frustrating because the CAA has not yet been able to have conversations with EASA because of the position we are in with the negotiations. We stand ready, but we have not been able to do that because a deal has not yet been agreed. We will continue to participate in ECAC and ICAO, as participation in both organisations does not depend on being an EU state. Even in a no-deal scenario, we recognise the importance of co-operation and collaboration with our European and international partners and will continue to do that.

 

I think I have answered all the questions—

Can I take us back to the CAA’s 59 new employees? I am delighted to hear that progress has been made. However, it occurs to me—going back to what the noble Baroness said at the beginning of her response—that this SI is for a no-deal scenario, but the CAA has had to recruit for a no-deal scenario that might not happen. I am sure most of us very much hope that it will not happen. What will happen to these staff if there is a deal and good transition arrangements that allow us to continue as members of EASA and dovetailing in? I am not trying to have it both ways; I am not trying to say that they should not have been employed because they might not be needed. It just occurred to me that this is nugatory expenditure, but it might also have an impact on the permanence of people’s employment.

The noble Baroness makes a very good point. These are difficult decisions. We need to make sure that we have contingency plans and the right people in the right place. On the cost of those people, the DfT gave the CAA £2.7 million from the Treasury to build up contingency. These costs have yet to be transferred to industry, at least. She is quite right that people are being affected. I cannot speak for the CAA and its human resources plan, but it is an excellent employer and I am sure that it will have a good plan. Regardless of whether we get a negotiated agreement, many other aspects will need to be discussed, such as our future relationship following the end of an implementation period. I very much hope that those people will be used and used well. However, I will take up that point with the CAA next time I speak to it.

 

As I said, we are working towards a negotiated agreement that is supported by Parliament, and we very much hope that that will happen. However, we need to ensure that we are prepared in the event of no deal, and this draft instrument is a key part of the preparations. Aviation safety is a priority for us and, as the noble Baroness said, that has been highlighted by the tragic events over the weekend.

 

Both the UK and the EU have set out their intentions on safety regulations to ensure that we have the plans we need in place and to ensure that we continue to have a high-level—a world-leading level—of aviation safety, irrespective of the outcome of the negotiations. I beg to move.

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

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

 

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

 

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

 

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

 

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

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

 

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

 

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

 

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

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

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

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

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