EU Referendum

Brexit: no room for doctrine


Following the piece I published yesterday on aviation safety regulation and Brexit, I spent the best part of the day reading up on various aspects of that regulation, with the general view of better understanding the nature of the beast and how it would be affected by our leaving the European Union.

In so doing, I found myself confronted with such vital issues as the difference between Commission Regulation (EU) No 1321/2014 and Commission Regulation (EC) No 2042/2003 as amended (the answer to which can be found here and such arcane questions as to whether I can import a rebuilt engine and associated components from the US.

The answer to that apparently simple question brought into rather fine focus the fact that I was out of my depth. How else could one describe one's own status when confronted with this:
Under the terms of the EU/US bilateral agreement (BASA), you can import an engine with a "rebuilt" status in block 11, only when it has been released by the original engine manufacturer on a Form 8130-3 using the blocks 13a. to 13e. (left side).
And if that wasn't enough, the response (provided by EASA) helpfully continued:
Please note that Form 8130-3 with "rebuilt" status are not acceptable for components other than engine (regardless whether it has been released on left or right side) therefore the components accompanying the rebuilt engine should either be released REPAIRED/OVERHAULED… (right side) or NEW (left side).
The EU/US bilateral agreement (BASA), by the way, is that document to which I have referred earlier in its 135-page iteration, but is available here as a 140-page consolidated version, taking into account revisions up to 3 May 2018.

This has grown from its original length of 42 pages agreed in 2011 and brought into force by Council Decision 2011/719/EU of 7 March 2011. This, incidentally, is one of only three of the EU's bilateral agreements. The others are with Brazil and Canada. An agreement with China has been concluded but not signed, and negotiations with Japan are under way.

It is these agreements which provide the template to which the UK might look for its own relationship with the EU post-Brexit, in the field of aviation safety. And here, it is important to note that they cover only the EU, not the whole of the EEA. In each case, the parties to the "bilaterals" have signed separate "working arrangements" with the four Efta States, such as this one between Canada and Iceland.

Going into the detail of the EU/US bilateral, one learns from EASA that this has spawned such things as "release documents" signed by the European Community, referred in AMC M.A.501(a)5(a)/ AMC 145.A.42(a)1a). It is such statements as these which further convince me that I am totally out of my depth.

As an aside, it is experiences such as these which also reinforce my disdain for that happy band of creatures who so easily claim to be "experts" in matters of EU law. Material produced by EASA (including the above) is part of the EU's acquis and that relating to the regulatory system would require a lifetime of study to deliver a semblance of expertise.

Such as I have learned, however – reinforced by my study from the last day – tells me we are dealing with something hideously complicated – and more so as competences are shared between the European Commission and its executive agency, the European Aviation Safety Agency (EASA), and the Member States and their own aviation safety agencies, such as the UK's CAA.

Certainly, the regulation of aviation safety is not the place for the fainthearted or the amateur, and thus the impact of Brexit was always going to be complicated. Perhaps this is the most complex of all the regulatory areas which will need to be tackled in order fully to detach us from the EU.

Unsurprisingly, Mrs May has expressed a preference for the status quo, with the UK retaining its membership of EASA. But that cannot happen. The EU's agencies are servants of the Union, established to service the Member States under the aegis of the European Commission. Concessions are made to Efta States, but even they with a form of associate membership of the EU, have no voting rights.

But what can be readily established is that, outside Efta and the EEA, our target must be a bilateral agreement with the EU. These are highly formal and comprehensive arrangements which not only set up the areas of cooperation but also establish joint bodies which enable the agreements to be monitored, interpreted and developed.

In the case of the United States, there is the "Bilateral Oversight Board" (no one seems to want to call it "Bob"); Canada has a less formal Joint Committee and Brazil has a Joint Committee of the Parties as well as Joint Sectorial Committees on Certification and Maintenance.

The big problem we have at the moment is the same problem we have in agreeing a post-Brexit trade agreement with the EU. The aviation safety "bilaterals" are full-blown treaties so we cannot even begin to negotiate with the EU until after 29 March 2019, when we formally become a third country. Equally, we cannot enter into the less formal "working arrangement" type of relationship with EASA until we are a third country.

This is where the ADS/GAMA letter to which I referred yesterday gets really interesting. These aviation bodies have become aware of the effects of Brexit and, in particular, the peril of withdrawing without a transition period. Ideally, they argue, the difficulties could be addressed by talks directly between EASA and the CAA, concluding a "separate aviation deal agreed prior to March 2019".

However, the very solution that the industry seeks cannot be achieved which means that, if there is a "no deal" Brexit, catastrophic disruption to the aviation industry is inevitable. In legal terms, there is simply no way round this.

What this effectively means is that – as I stated yesterday – "no deal" is not a serious option. The effect on the aviation sector alone is enough to rule it out. Factor in all the other problems, in other sectors, and no responsible government could allow it – and nor could MPs, individually or collectively, permit it.

This makes a complete nonsense of the endless dramas we have been seeing in Parliament. Given the prime minister's determination to leave the Single Market, in order to resolve the Irish border issue and move to a transition period, we have no option but to accept the text of the EU's proposed withdrawal agreement, including the "backstop". The idea that Parliament has the option of a "meaningful vote" is absurd. It can accept what government agrees, or drive the nation into chaos.

And that brings us back to aviation safety. No MP is in a position to understand the implications of their votes unless they also understand the outcome of a "no deal" on aviation and other industry sectors. This particularly goes to the "Ultras" who are actively campaigning for a no deal Brexit.

These people need to know that we cannot walk away from the EU without putting in place the structures and agreements which will enable vital functions to continue. We have to negotiate deals because the alternatives are unthinkable.

If our MPs get it wrong, the jobs of hundreds of thousands will be lost, many thousands of businesses will be destroyed and the economy will be irrevocably damaged. There is no room here for doctrine, or riding political hobby-horses. The fate of the nation is at stake.