Richard North, 26/09/2018  

One assertion with which few people will disagree is that the regulation of commercial aviation is infernally complicated – and even more so when the international dimension is added in. This is hardly surprising. The industry is one of the most heavily regulated on the planet.

Inevitably, therefore, Brexit is going to have a significant effect on the industry – with or without a withdrawal agreement between the EU and the UK. But, when it comes to the effect of a "no deal" Brexit, there is every reason to believe that this would be catastrophic.

Even those who could not work that out for themselves, by reference to EU law – which we have – there are two Notices to Stakeholders published by the European Commission, one on the general effect of EU rules on air transport, published in January, and the other on aviation safety rules, published in April.

There can be little doubt from these two publications that, in the event of a "no deal" Brexit, air transport between the UK and the territories of EU Member States (and many others) would be severely disrupted, so much so that it is hard to envisage conditions where international flights to and from the UK could continue in the immediate aftermath of Brexit.

For reasons that I don't fully understand, however, the UK media has chosen to ignore the Notices to Stakeholders and, with respect to the fate of civil aviation, post-Brexit, has chosen to accept the assurances of transport secretary Grayling and other UK politicians that the industry will be largely unaffected.

This complacency – and that is what it is – rests largely on the assumption that the disruption of a "no deal" Brexit would be so severe that neither the EU nor the UK could allow it to happen.

Therefore, it is frequently asserted that the parties would rapidly conclude a separate aviation deal, if not before Brexit, then in the immediate aftermath, in order to keep the aircraft flying. On that basis, even if there was disruption, it would probably last no more than a few hours, assuming that the UK was not able to conclude bilateral agreements.

Nevertheless, as the date of our withdrawal comes closer, and various commentators have expressed their fears about the effects of Brexit civil aviation, something more that generalised reassurances have become necessary. It is thus with more than usual interest that we've been awaiting the specific "technical notices" on aviation, to set out the official government position.

These, at long last, were published on Monday, following the format of the Commission notices, with two separate publications, the first dealing with general issues relating to flights to and from the UK in the event of a "no deal" Brexit.

The second mirrors the parallel Commission document, addressing aviation safety issues if there's no Brexit deal.

These documents, of course, are part of the third tranche of "technical notices". When the first batch appeared, I expressed the opinion that Brexit secretary Dominic Raab was deliberately downplaying the effects of a "no deal" Brexit, issuing just enough detail to look as if the government was dealing with the problems, without being so detailed as to raise concerns to fever-pitch.

Taking these two aviation documents together, I would venture that the government is doing exactly the same thing here. Once again, there is enough detail to indicate that HMG is aware of the potential problems, but the text is so hedged with qualifications, and the style so emollient, that the impact of a "no deal" Brexit is considerably weakened.

To give just one example of this (of many possible examples), we can go to the very last section of the government's paper on aviation safety, which bears the title "Airports". The text reads as follows:
The certificates issued to airports by the CAA would remain valid and these organisations should be largely unaffected by the changes to the safety regulatory regime.
There is no directly corresponding entry in the Commission document referring to "airports", as the EU legislation refers to the relatively arcane term "aerodromes". But where that term refers, we find the Commission stating that, as of the withdrawal date, certificates for aerodromes "will no longer be valid".

This apparent conflict, however, can be easily resolved. Under current EU law, safety certificates for aerodromes are issued by national regulators (in the UK's case, the Civil Aviation Authority) under the authority of EU law. When we leave the EU, the UK's Withdrawal Act kicks in and the CAA's certification will be recognised under UK law. UK-registered aircraft will be able to use domestic aerodromes, just as they did before Brexit.

However, because UK certificates will no longer be issued under the aegis of EU law, in the absence of any agreement between the UK and the EU, this certification will not be recognised by the EU. Thus, as I pointed out in an earlier piece, aircraft registered by EU/EEA Member States, subject to EU law, will not be permitted to use UK certificated airports.

Technically, one could take the view that the government's technical notice was correct. In a very limited sense, airports "should be largely unaffected by the changes to the safety regulatory regime" – inasmuch as they can continue operating. The changes do not affect the airports, as such. They affect the aircraft flying in and out of them.

In other respect, the Government's notice is so vague that it leaves it open as to whether there might be a problem. For instance, in relation to airworthiness certificates, these apply to components as well as complete aircraft and, because the UK will recognise certificates issued by the CAA and EASA, UK-registered aircraft should have no problems when it comes to fitting new parts. However, as regards aircraft registered by EU Member States:
The EU has indicated that it would take a different approach to the UK. The information notices issued by the European Commission state that certificates previously issued by the CAA, or by organisations approved by the CAA, before exit day would no longer be automatically accepted in the EASA system after 29 March 2019.

This would mean that parts manufactured and certified by organisations approved by the CAA could not be installed on EU registered aircraft. The affected organisations could be approved as third country production organisations by EASA. However EASA has yet to provide the details for how and when it would process applications from UK manufacturers in advance of the UK leaving the EU.
This, actually, is a major problem for EU Member State operators, but also would have considerable impact on UK part manufacturers, including those supplying Airbus, whose certification relies on the CAA.

Such is the cross-border impact that it sustains the belief that the parties will resolve the issues in such a way that aircraft will keep flying, regardless of whether there is an overarching Brexit deal.

That is very much the view of the UK airline industry representative body, Airlines UK, which in its official response to the technical notices on aviation, said:
Airlines are confident that there will be a new agreement on aviation between the UK and the EU. Whilst we don't support a no-deal Brexit, we welcome that both the UK and the EU are proposing in this event a minimum agreement that would cover flight and safety requirements for the benefit of both passenger and cargo services.
This has been translated by the BBC as an assertion that "the European Commission has said it would put in place a 'bare bones' aviation agreement with the UK to keep planes flying".

But, if that is actually the case, there is no published statement from the Commission to support it. And, as to the wider aviation industry, the confidence of Airlines UK is not repeated. The view of ADS is that "a no deal scenario could generate substantial disruption to air travel and aerospace manufacturing after the UK leaves the European Union (EU) in March 2019", adding that: "Flights in the UK and Europe being put at risk of delay or cancellation over disruption to safety certifications".

There is no good reason to think otherwise. As of now, the definitive view of the Commission is that set out in its Notices to Stakeholders. And if we refer to EASA, its settled view has remained unchanged:
As the withdrawal and transitional agreement negotiations are currently underway EASA cannot yet determine the ultimate impact of the withdrawal on EASA or its stakeholders within the EU-27 and 4 associated countries or within the UK. The withdrawal will significantly alter EASA's cooperation with UK authorities and will not leave EASA's stakeholders untouched.
Furthermore, as I've pointed out recently, for the Commission to conclude what have become known as "mini-deals" is by no means straightforward. When the UK becomes a third country, post-Brexit, Article 218 procedures will apply and these will take time to conclude.

On balance, therefore, one must still conclude that a "no deal" Brexit would be catastrophic for UK civil aviation – and manufacturing. Because it will also affect EU operators, we can expect some Commission intervention post-Brexit, in the event of a "no deal", but that won't necessarily be to the advantage of the UK, or resolve all of its problems.

At the very least, there is great uncertainty which has yet to be resolved, and there is thus no reassurance to be found in the government's latest publications. The impact of a "no deal" scenario is still being understated – itself an issue with considerable political implications.

comments powered by Disqus

Log in

Sign THA

The Many, Not the Few