Brexit: flying high

31/03/2021

So, with all the excitement over, it's back to the claustrophobic world of Brexit, not a happy place for many people. But one happy bunny is Sir Stephen Hillier, an Iraq War pilot who reached the rank of Air Chief Marshal and led the Royal Air Force for a while.

As Flight Global tells us, he has now taken over as chairman of the Civil Aviation Authority (CAA) charged with rebuilding the operation after the UK's withdrawal from the EU, when we automatically ceded from the European Union Aviation Safety Agency (EASA).

Despite being a former Air Chief Marshal, however, Hillier is not the sharpest knife in the drawer if he believes that the UK withdrawal from EASA "was one of the more incomprehensible aspects of Brexit for the air transport industry".

His interview is framed by citations of a parliamentary industrial strategy committee during Theresa May's term in office, which heavily favoured remaining within EASA. Evidence from aerospace businesses, unions and academia, it said, was "unanimous" in support of continued UK membership.

"Close global regulatory alignment in aerospace has resulted in benefits in terms of safety, the ease of global trade and efficiency, while it is unclear that there are any benefits from divergence at this time", it added.

The committee said the UK's influence on aerospace regulation from within EASA was "preferable" to "securing an escape" from European Court of Justice jurisdiction – especially given that the court had, in practice, had "played no role" in EASA's work and had never issued a ruling on an EASA decision.

The thing here is that, once the UK left the EU, there was never any option for it to remain a member of EASA. I've written about this at length in several pieces, such as this one, pointing out that there is no provision in EU law for a third country to be a full member of the EASA except, as I wrote here, in the case of Efta states. As explained here:

The EFTA States are fully committed to applying Regulation (EU) 216/2008 and its implementing rules. Regulation (EU) 1178/2011 has been incorporated into the Agreement on the European Economic Area, and the Agreement between the European Community and the Swiss Confederation on Air Transport, following which the EFTA States are considered, for the purpose of this regulation, as if they were EU Member States. They are obliged to ensure full implementation of the regulation, subject to any opt-outs they may wish to take advantage of, and are subject to EASA standardisation inspections as if they were EU Member States.

Even if the UK had committed to applying the full EU aviation safety acquis, there was no possibility of the EU modifying its law to accommodate the UK, so that it could enjoy the same privileges as Efta states. Thus, ever to have expected that we could have remained members of EASA is unrealistic to the point of being delusional.

However, we are where we are and Brexit has forced the CAA to re-establish itself as a standalone regulator from 1 January, outside of EASA. Nevertheless, Hillier denies that this means starting from scratch.

Not everything to do with our regulatory functions in the CAA was handled by EASA, Hiller says. Particular aspects were certainly handled by EASA – but there remained a very strong core foundation in the UK looking after our national responsibilities. "Where things were not replicated in the CAA, but were delivered by EASA, we brought those functions back into the CAA".

Now, while separation from EASA theoretically grants the CAA more freedom to adopt its own regulatory stance, the extent to which it can realistically make changes – given the trend towards harmonisation – is yet to become clear. Hillier highlights the "practical reality" that the CAA can be "more agile and flexible" because it no longer needs to wait for consensus to emerge within a 28-country circle.

"We don’t want to be divergent for divergence's sake", he says. "We’re very conscious that, if we are divergent, there is also cost on businesses potentially and we need to be very mindful of that".

One potential opportunity is in the regulation of remote-piloted aircraft systems (RPAS). The innovation, the development in those areas is really accelerating and, despite Covid, there has been "consistent growth". Hillier does not think that anybody has yet developed the perfect regulatory environment for these systems, opening the way for the UK to frame "a future in a new area of capability which is genuinely world-leading".

As for the current position in aviation, all EASA certificates, approvals and licences which were in effect on 31 December will remain recognised by the CAA for up to two years. But UK-licensed pilots and UK-approved engineers will not be qualified on EU-registered aircraft, and UK-issued cabin crew attestations may similarly cease to be valid.

UK aircraft are also restricted to third- and fourth-freedom services, losing the automatic intra-EU access that came with EU membership. UK users of the space-based EGNOS position-augmentation service, which supports approach guidance for landing aircraft, will lose access in June this year.

Hillier thus acknowledges that "there's not full reciprocity [with the EU] at this stage", and the scale of the negotiation task presents problems, given that the UK needs to deal with every EU member while any individual EU state only has to deal with the UK.

Although some of the personnel handling UK affairs within EASA have chosen to remain with the Agency, the CAA has managed to recruit sufficient personnel to have had the necessary governance in place by 1 January. Aviation safety policy-making is being handled in conjunction with the Department for Transport.

Covid, though, is reducing the demand for regulatory services, resulting from the pandemic's suppression of air traffic, so there will be an issue when activity picks up during the recovery – if it ever happens.

Another issue is expense. Replicating EASA's functions is significantly more expensive than maintaining membership. UK aerospace trade association ADS Group chief executive, Paul Everitt, estimated 200-300 people would be needed at an annual cost of £30 million.

Hillier, on the other hand, insists that the number of people brought back to the CAA, to support the reclaiming of functions handed to EASA, is "relatively small compared with the CAA's 1,200 employees", about half of whom are within safety and airspace regulation.

"I think that gives a little bit of the sense of perspective here", he says. "We're not rebuilding an organisation. We've just put new wings onto the building rather than come up with the new building itself".

He admits, though, that the CCA's work is only beginning. Not all the bases are "covered, in a way that we’re satisfied [will] take us through the next ten years", he says. "No organisation can say it's covered", he adds.

Looking to the future, Hillier wants the CAA to have oversight of commercial spaceflight technologies, from vertically-launched vehicles to sub-orbital aircraft. "Space regulation is "part of the exciting journey", he says, a journey towards being seen as "a world-class regulator".

Clearly, Johnson has got the right man in place to deliver the rhetoric, but whether the UK will be able to prosper as a global regulatory giant remains to be seen. The aim is still to maintain "strong and enduring relationships with EASA", which would seem to be keeping us in the orbit of the EU regulatory system.

Up here in the not-so-frozen north, though, commercial aviation traffic is now so rare that when an airliner flies over, everyone comes out into the street to watch it. As with so many things, Covid has given Johnson cover for a system which might otherwise be creaking under post-Brexit regulatory demands.

Should we still have an airline industry when the travel restrictions finally come off, it will be interesting to see whether Hillier is able to maintain his sunny optimism or whether we're in for a rocky time, while the skies remain empty.

Also published on Turbulent Times.