Brexit: an irresponsible use of power

26/07/2018

The report is from BBC News in Northern Ireland but available on the national (UK) website, and is written by broadcast journalist Ciarán Dunbar. It picks up on the "outcry" when it was reported that the Irish prime minister had "threatened to halt British planes landing in Ireland".

Dunbar notes that The Sun said Taoiseach Leo Varadkar was a "big mouth and a fool", with an editorial declaring: "It has exposed beyond doubt both his crass naivety and the cynical deceit of the EU masters he cravenly obeys".

With the scene thus set, we get the typical self-importance of the BBC, as the article addresses the "the facts in the case", setting itself up as the arbiter, purporting to give us the factual analysis that will leave us correctly and fully informed.

It starts by rehearsing what Varadkar had to say in his fateful press conference in County Kerry on 18 July. We are thus informed that he started out by declaring that the UK was "part of the Single European Sky and if they leave the EU they are not".

That meant, according to the prime minister, "if there was a no-deal hard Brexit next March, the planes would not fly and Britain would be an island in many ways - and that is something they need to think about".

In classic "he says, she says" style Dunbar then refers to the Downing Street spokeswoman who responded to the statement, by saying that Leo Varadkar "was wrong to suggest British aircraft would be barred from Irish airspace in the event of a no-deal Brexit".

So-called "overflight rights" were guaranteed by international treaties rather than EU membership, the spokeswoman averred, then rather incongruously adding that the UK was confident of reaching a deal that included "aviation access".

From this, we got specific quotes, with the spokeswoman saying: "It's wrong to claim that Ireland could simply stop the UK from flying over its land as a result of Brexit", followed by, "The reason we say that is because overflight rights are not guaranteed by the EU, rather by multilateral treaty which both ourselves and Ireland have signed up to".

With the "he says, she says" framework now set up, the way is clear for Mr Dunbar to come in and tell us what he will present as the actual position. For this he uses the sub-heading, "What's the legal position?"

With no references offered, or direct citations, Dunbar tells us that the international treaty referred to by the UK government is the Chicago Convention which 52 states signed on 7 December 1944. And then he goes off the rails, declaring: "It effectively guarantees the right of civil aviation to fly over the air space of signatory states without permission, but not necessarily to land".

In this short sentence, what we are seeing is Dunbar making two major errors. Firstly, as I explained here, the Chicago Convention does not guarantee any rights. That is not the way it works. It requires the contracting states to grant to the other contracting states what are known as the "freedoms of the air".

Thus, such rights do not take effect until contracting states formally agree between themselves bilateral or multi-lateral treaties, generically known as Air Service Agreements. Furthermore, the Convention deals with five (of nine) rights, which include the right to land at the airports of other contracting states.

With this being the second error, Dunbar now goes on to make the false conclusion that, when Mr Varadkar talks about "planes flying over our sky", he "is probably wrong on that point - and the UK government correct".

In actuality, as we know, the five Chicago freedoms are given effect by Regulation (EC) No 1008/2008, which lapses immediately if the UK leaves the EU without a deal. Without a new deal, no UK civilian aircraft would have overflight or landing rights in Ireland, or any other EU Member State (and many other countries besides.

Nevertheless, Dunbar decides that the "real issue" would be "planes landing and taking off at EU airports if the UK leaves European Single Sky and the European Aviation Safety Agency with no deal to replace their regulations".

Mr Varadkar, we are told, was speaking in terms of a "no-deal Brexit", while the UK government was responding in terms of reaching a deal. Thus, according to Dunbar, his "planes would not fly" remark could in theory become a reality if there was no deal, the need for which is tacitly implied in the UK statement. Finally, therefore, we've got there – after a fashion.

But Mr Dunbar hasn't finished. "Was it a threat?", he asks, then noting that The Sun certainly took Mr Varadkar's comments as a threat, as did some unionist politicians in Northern Ireland.

"Given that the Irish State is dependent on the RAF for its air defence in the event of a terrorist attack it is obviously exceedingly unwise for Varadkar to pompously and arrogantly suggest that Dublin could deny civilian aircraft from the UK access to Irish airspace," said Traditional Unionist Voice leader Jim Allister.

DUP MLA Christopher Stalford countered that the Republic of Ireland gets its gas supply through the UK. "Remember this the next time Leo decides to threaten the UK over airspace", he tweeted.

However Mr Varadkar was defended on social media by the Irish government's spokesperson on the EU. "To be fair he merely reiterated a factual statement that Philip Hammond also made earlier this year", said Senator Neale Richmond.

In actuality, this is sloppy reporting. Because Dunbar has failed to understand how the Chicago Convention works, he does not realise that the freedoms of the air lapse automatically if the UK leaves the EU without a deal. By not rehearsing the important facts of the case, the BBC journalist misses the key point and leaves his readers uninformed.

For want of diligence, though, Dunbar relies on the standard cop-out for lazy journalists, trotting out a series of quotes from prestige figures, whom he calls "experts".

First in line is Eamonn Brennan, chief executive of the Irish Aviation Authority. He said as early as February 2017: "Air connectivity all over the world is based on Air Service Agreements and once the UK leaves the EU a new Air Service Agreement will have to be put in place between the EU27 and the UK".

Next, we have the trusty Michael O'Leary, boss of Ryanair. He has repeatedly warned that the UK is running out of time to agree a new open skies agreement with the EU, saying there is a "real prospect" that there will be no flights between the UK and Europe for a period beyond March 2019".

Third in line is the head of the Aerospace body ADS, who said in July 2017 that the UK must remain an EU member during a post-Brexit transition period.

Not content with that, Dunbar introduces another space-filler - aviation expert Paul Everitt. He says the UK would struggle to sign the necessary agreements with global safety regulators before then, risking disruption to air travel.

He adds, "If we don't have a transition arrangement and if we aren't a member of the EU as part of that transitional arrangement, then we have chaos because we don't have a system to ensure that our products are safe and secure to fly and a regime that is acknowledged around the world".

Without any explanation or understanding, therefore, Dunbar has introduced the entirely separate safety regulation issue, which creates its own tranche of problems. These are not explored in any way.

Instead, Dunbar now feels equipped to go for his conclusion, which he heads, "Theoretically possible - but unlikely", introducing "aviation consultant" John Strickland. This talking head is used to say that, " in the event of a no-deal Brexit, the current aviation traffic rights framework would no longer apply.

"Theoretically", says Strickland, "at midnight on that day planes would be grounded". But, Dunbar says, he questioned the likelihood of that happening: "Even if technically a deal comes to an end it wouldn't be logical that you would just accept that that commercial airline traffic stops just to make a political point because you would be starving the economy," he added.

"Whether you are on the UK side, or the Irish side, or the remain side, or the leave side", he concludes, "I don't see anybody that wins from the suspension of air services".

That's it. That's all you get. This superficial, badly constructed piece meanders through the territory to allow the conclusion that suspending air services "wouldn't be logical" and therefore it won't happen. The fact that the UK in this scenario has walked away from a deal without a financial settlement does not seem to be material. We simply have to assume that there is going to be an aviation deal.

And although Dunbar has been given the clue about safety regulation, he hasn't followed this up and is thus unaware of the implications of the UK's status as a third country. By default, he (and by inference the BBC) has offered a complacent view which almost certainly understates the impact of a "no deal" scenario on civil aviation.

If, as is doubtless the case, the BBC has misled the public, one might then ask whether this matters. And the answer is unequivocally "yes". A recently published Ofcom report has the BBC as the dominant news provider in the UK, with almost two-thirds of online news users claiming to use the BBC – as opposed to a mere nine percent referring to the Telegraph website.

If the BBC gets it wrong, it matters. And here it is getting it seriously wrong: whether by incompetence (as in this case, I would aver) or through biased coverage, it is understating the damage caused by a "no deal" Brexit. The Ofcom report proves that it wields a huge amount of power. This example (one of many) demonstrates that it is not being used responsibly.