Instant Expert

Looking beyond Brexit

As I write this the Government and European Commission have just agreed to keep talking beyond Sunday 13 December. Possibly by the time you read this we may know whether any sort of trade deal will be done with the EU. I doubt the outcome will make much difference in the short term as to how aviation regulations will change on 1 January, but a trade deal with the EU may accelerate moves towards establishing a bilateral aviation safety agreement (BASA) in the more medium term.

Thoughts are naturally turning to what the post-EASA system environment might look like – we have known for a while now that the initial approach will be a so-called ‘lift and shift’ from the existing European law. Since 31 January 2020 the UK has been in a transition period in which, despite having left the EU, existing rules and procedures continued to apply, so the effects of leaving were not really felt. On 1 January this will change.

As you can tell from the Brexit Q&A feature, the end of the transition does raise some detailed questions, some of which even the CAA do not yet know what is the answer. The basic legal approach though is clear. Moving European law into the UK, cascades down from the European Union (Withdrawal) Act 2018 – known as the ‘Withdrawal Act’. It might seem a bit strange that the first act on leaving the EU is to copy a lot of European law into the UK system, but the idea is to provide legal continuity and freeze the legal position such that it can be carefully modified or dismantled as desired in the coming years. The only modifications that have been made in advance to what is known as the ‘retained’ EU law are changing the institutional responsibilities such that they make sense outside of the EU. So, for example, if a piece of European legislation says that EASA (or ‘the Agency’ as often referred) is obliged to do something, that will become the CAA.

“The more interesting bit is what substantive changes to regulation might happen…”

After 1 January the retained law becomes frozen in time and will not automatically update when the European version changes. The UK can now change it via the domestic legal process. The distinction between EASA and non-EASA aircraft will continue for the foreseeable future, although this has been changed to ‘Part-21’ and ‘non-Part-21’ aircraft respectively. The ‘Part-21’ designation takes inspiration from Part-21 being the regulation in most ICAO States that governs the design, certification and production of parts, aircraft and the organisations involved in those activities.

Part-21 aircraft and associated activities will continue to be regulated under the UK versions of what they were under EASA – for example there will be a UK version of the Aircrew Regulation, Air Operations Regulation, and so on. Non-Part-21 aircraft will continue under the Air Navigation Order 2016, which remains largely unchanged by Brexit. The CAA is currently in the process of producing consolidations of the retained law since the actual amending legislation under the Withdrawal Act is simply a long list of minor amendments, such as changing institutional names. Hopefully these consolidations will be available soon to allow people to see the law as in force in the UK.

The more interesting bit is what substantive changes to regulation might happen now that we have left the EASA system. The CAA’s consultation on opportunities presented from leaving EASA (CAP1985) closed on 18 December, but if you did not have a chance to respond, I suspect there will be more opportunities to engage on the detail in the coming months and years. CAP1985 alluded to the CAA wishing to engage with the GA community more effectively and is considering how it might improve stakeholder forums and engagement, so watch this space.

An initial thought for the CAA is that if we are serious about opportunities post-EASA we need to dispense with having parallel legal systems sooner rather than later – the European regulations are in the European legal style and dwarf the old ANO-based regulations in terms of volume by some margin. Whether that means revising the ANO or starting with a clean sheet on other secondary legislation I am not sure it matters, but while a degree of low hanging fruit can probably be picked off by applying tactical surgery to the old EU law this could quickly become very messy, particularly when (for example) some things such as the Rules of the Air were already a mixture of national and European rules.

The obvious candidate for simplification is pilot licensing. In airworthiness we tend not to notice much that different aircraft are approved under differing regimes depending on age, weight etc, although it is important that certification regimes are the best they can be. In the operations domain the ANO and EASA rules for GA were generally similar anyway.

Licensing though always stood out as being an odd mix of different privileges, ways of revalidating etc and under EASA the distinction of non-EASA licences not being used to fly EASA aircraft. The provisions of JAR-FCL and later Part-FCL also exceeded those required by ICAO Annex 1. All that is not something that’s going to be addressed by fiddling with the UK version of the Aircrew Regulation, a clean sheet approach is probably a better idea.

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