Instant Expert

Better regulation?

There is not a huge amount of regulatory news this month, so while there is plenty in progress at the CAA, on this occasion I will stick to some more general reflections on what the future might hold.

On the one hand the commercial flight training industry wants more mutual recognition with EASA, but on the other, many want to take advantage of the freedom from European rules. Either way I think we need to focus on regulatory policy which is driven by acceptable levels of safety rather than legal structures.

I also think we should be aiming to achieve regulations which are more accessible and easier to understand at grassroots level.

I would be the first to advocate that there was plenty the EASA system got right on GA regulation, but there were two main weaknesses.

Firstly, there was too much complexity (or ‘granularity’ as experts might say), to the point that internal consistency sometimes broke down.

Secondly, the interaction between national and European spheres caused confusion, and outcomes which were driven by legal imperatives rather than safety ones. These are traps to avoid in the future.

In the short term I imagine we will still see a few strange outcomes. While very welcome news, there was some irony in the recent announcement that the update of the UK-French agreement on amateur-built and historic aircraft would allow UK LAPL holders to fly such aircraft in France, despite not being permitted to fly former EASA aircraft in the same circumstances. This was possible because within the realm of national law, the UK and France could specify that any licence valid for the aircraft in the state of registry would be accepted for flight in the other state.

Since the Air Navigation Order renders a UK Part-FCL licence valid in non-Part-21 aircraft, France will recognise it for UK aircraft subject to the agreement. This also goes for pilots holding a medical declaration, which is quite significant news.

Regulating problems

One problem with regulations is that sometimes you must draw lines between things in order to regulate them differently – we would not want a world in which all aviation activity was regulated the same way because that would likely mean everyone being held to the highest standard available.

But people fall either side of lines, sometimes only marginally. Perhaps for the sake of a kilo or a year, two otherwise similar aircraft might fall into a different regulatory bucket. The key though is determining whether a line is serving a useful purpose from a safety or consistency point of view – legal structures should be the tool to achieve that, not a limitation nor a driver. For this reason, I still believe the UK should be moving away from the retained EU law – not necessary to make substantive policy changes, but because it is a line that is driving unnecessary complexity. I also think this would also be
an important step towards better understanding of regulations generally.

Several years ago, while manning the EASA stand at Aero Friedrichshafen, a rather bewildered American expat asked me to explain the European aviation regulatory system (I think he had recently moved to Switzerland, which although not in the EU, is a member of EASA).

The split legal framework of EASA and national regulations was difficult to get across at first, particularly explaining how EASA legal competence was discharged through the member state national authorities. With a certain amount of knowledge of the FAA rules, it was helpful to be able to point out some key differences.

USA clarity

Now debate about the FAA versus other systems is widespread, but one observation I would make of the US is that the regulatory system is better understood by those in it. Regulation does not have this sort of mythology around it that it seems to in Europe. You still hear plenty of moaning about the FAA for policy reasons, but pilots reading and understanding actual regulations is not considered remarkable. It is not something reserved for policy gurus and lawyers. One explanation is that there are not these various layers of regulation that interact with each other in strange ways – the FARs take a sort of building block approach that is well understood, even if one could debate the merits of the detail.

I remember when going for my FAA commercial check ride, forgetting my ‘FAR/AIM’ manual which covers key regulations. The examiner was not impressed. I can still hear his words of admonishment… “How could you forget your regulation?”

Thankfully, I had done my revision. What is notable is that the regulations reproduced in FAR/AIM are not some ‘plain language’ version of the law, they are the actual text of the Code of Federal Regulations and for the most part, are fairly easy to understand.

In contrast, as the editor of the CAA’s Skyway Code, while I am quite proud of the blend of safety and regulatory material, I did find it frustrating that much of the content needed rehashing into plain English in the first place. Perhaps it is time for a clean sheet…

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