Richard North, 01/07/2018  

Booker does aviation this week, his main item in a column headed: "As Brexit looms, could we be heading for chaos in the skies?" 

"In all the excitement over that Heathrow third runway", he writes, "there has been remarkably little mention of recent warnings from the European Commission that, within few months, Heathrow could, at least for a while, be closed to international traffic altogether".

These are the two Notices to Stakeholders, the first issued in January on EU rules in the field of air transport and the second on EU aviation safety rules issued in April. Neither of these will come as any surprise to readers here, and we've dealt with Heathrow in some detail here, in the blog. But this is an issue which the legacy media have been unwilling to touch, so Booker too can take his turn to be ignored, in his own ghetto.

But not only is the bulk of the media ignoring this, we get the likes of Charles Moore pontificating about the EU threatening "absurdities such as grounding our aircraft". This is a man who the Telegraph hypes as their star columnist who "covers politics with the wisdom and insight", yet he has so little "insight" that he is unable to deal with the reality of how the modern world works.

Yet, what we are dealing with here is a very simple concept. In being part of the EU, the UK has signed up to a series of treaties which have transferred certain powers from the UK government to the institutions of the European Union.

One set of those powers covers the regulation on the safety of civil aviation and the right to issue (or mandate the issue of) safety certification in fulfilment of our international (ICAO) obligations. Also transferred is the right to make treaties with third countries (such as the United States) on cooperation in the field of aviation safety, involving mutual recognition of safety certification.

Crucially, both the EU safety regulation and the treaties made with third countries ensure that, because UK standards are embedded within the EU system, they are recognised by all other member states, Efta members and other third countries. Conformity with EU regulations is also taken as evidence of conformity with ICAO standards.

It stands to reason, therefore, that when the UK drops out of the EU, all the safety certification applying to the UK (or issued by UK agencies such as the Civil Aviation Authority – the CAA) will no longer be recognised by EU Member States, Efta states or another of the third countries which deal through the EU.

Thus, in order to ensure continued recognition of its safety standards after Brexit, the UK must replace any EU systems and then ensure that it has replacement deals in place, not only with the EU but with third countries which have safety agreements with the EU or which rely on EU certification as evidence of conformity with ICAO rules.

Clearly, if the UK leaves the EU without having made replacement deals, them its safety certification will not be recognised. And, in the absence of that certification, UK aircraft will not be able to fly, UK certified pilots will not be permitted to fly aircraft in the airspace of other countries, engineers will not be able to practice outside the EU, and much, much more.

This is not, therefore, the result of the EU doing or threatening anything. This is the way the international legal order works and, if the UK voluntarily changes its status in respect of a treaty organisation which impacts on such matters, then it is its responsibility to make the necessary adjustments.  

On this basis, it is absolutely no good Charles Moore huffing and puffing about the EU. He needs to look at what the UK government is proposing to do (or not to do). Similarly, there is no point, as Robert Oulds recently did, claiming that because Airbus manufactured aircraft in the United States and China, certification of Airbus products would be unaffected.

Airbus operations in the US come under the FAA and EASA, so they are jointly certified, while the operations in china, under the licensing agreements with the Chinese government, are certified by EASA. But, as it happens, UK Airbus operations are also certified by EASA, and would remain so after Brexit. The problem is Airbus's suppliers which are currently certified under the CAA, with the certifications lapsing after Brexit.

As far as Heathrow goes, as Booker rightly then says, the lapse of its certification would create such a crisis that we would no longer be worrying about a third runway but only how to keep its existing two open.

Picking up the detail of the story, he tells us that it is only since last December that the UK's premier airport, like all other international airports in the EU, have been legally required to operate under a certificate issued on behalf of the European Aviation Safety Agency (EASA).

And since these, in the UK, are issued by the CAA, they would automatically lapse the moment we leave the EU. They would no longer, as EU law requires, have been issued by the competent authority of an EU Member State.

And even though this could be instantly replaced by a new certificate issued by our own CAA, without the recognition deals with the EU and third countries, this would only apply to flights within the UK. Although we worked this out for ourselves (and also have the Notices to Stakeholders for confirmation), we now have additional confirmation, to which Booker refers.

At a meeting in Brussels on June 12 with representatives of the EU-27, with the UK not present, Filip Cornelis, aviation director of the Commission's transport department, is reported to have told them that, if the UK leaves without a full aviation agreement, all flights between Britain and the EU would cease.

But this, says Booker, is only the start of it. He refers specifically to the Notice to Stakeholders issued by the commission in April which warns all concerned of the "legal repercussions" for aviation of the UK's decision to leave the EU to become a "third country".

Booker notes that this sets out, in just over two-and-a-half pages, how every single activity of our aviation sector, from the operation of airports to the manufacturing and maintaining of aircraft, is only legally authorised under a mighty thicket of EU law. And the moment we leave the EU all this will "cease to be valid".

Thus he says, with every justification, "without an incredibly complex operation to ensure that every tiniest detail of this legal framework is replaced, in ways not just acceptable to the EU but compliant with international law, much of British aviation will simply come to a halt". Even our right to fly in any international airspace is governed by a mass of international agreements to which we are only party as members of the EU.

There is a possibility that the EU will step in but, as the guidance on medicines authorisation indicates, where requirements are embedded in EU law, the requirements cannot simply be waived. There is a possibility that the Commission will be able to "tweak" the law, as it has done with the transfer of vehicle type approvals, or expedite the transfer of certification to EASA authority. But many of the changes the UK government will need to make cannot be started until we have become a "third country".

Any transitional arrangements could, of course, suspend the loss of certification recognition but this or any other action by the EU could only give us a limited breathing space. And there can be no question that, in the event of a "hard Brexit", where we leave without a deal, chaos might be complete.

It would not be Booker is he could resist add that, if only we had chosen to join Norway in the European Free Trade Association and remain in the wider European Economic Area, most of these problems would have been infinitely easier to resolve.

The trouble is that our politicians – and idiots such as Charles Moore - have never begun to understand what the decision that we should become a "third country" is heading us for. They seem to think consequences are optional and at the discretion of the EU and cannot bring themselves to accept that we will be authors of our own grief.

In that sense, impact of Brexit on aviation is something of a touchstone. Not only do we see the potential for seriously harmful effects, the reaction encapsulates the incomprehension of our politico-media nexus, and their inability to come to terms with what leaving without a deal actually involves.

If they could get to grips with just this one issue, it would be a major step forward in their understanding of Brexit. But since even this eludes them, they will continue to fester in their own ignorance, making fatuous statements and assertions and misleading themselves and everyone around them.

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