EXPLANATORY MEMORANDUM TO
THE AVIATION SAFETY (AMENDMENT ETC.) (EU EXIT) (NO. 2)
REGULATIONS 2019
2019 No. [XXXX]
1. Introduction
1.1 This explanatory memorandum has been prepared by the Department for Transport
and is laid before Parliament by Act.
1.2 This memorandum contains information for the Sifting Committees.
2. Purpose of the instrument
2.1 The instrument uses powers in the European Union (Withdrawal) Act 2018 (“the
Withdrawal Act”) to correct deficiencies in EU-derived aviation safety legislation
arising as a result of the withdrawal of the United Kingdom from the European Union
(“EU”). This will ensure that the legal framework on aviation safety continues to
function correctly after exit day
Explanations
What did any relevant EU law do before exit day?
2.2 The relevant EU law provides for a comprehensive system of aviation safety in the
EU. The Basic Regulation (Regulation 2018/1139, which repealed and replaced
Regulation 216/2008), established the European Union Aviation Safety Agency
(“EASA”), provided powers to the European Commission (“the Commission”) to give
effect to requirements in the Convention on International Civil Aviation (“the
Chicago Convention”), and made further provision on the establishment of a
comprehensive aviation safety regulatory system in the EU. In particular the
Commission was given the power to adopt and amend Regulations containing
technical requirements, and to amend technical detail in the Basic Regulation which is
contained primarily in its Annexes. Implementing Regulations adopted by the
Commission are subject to qualified majority voting by the Member States.
2.3 Under the Basic Regulation, EASA is responsible for preparing proposals for new and
amended technical requirements. These form the basis of the technical Implementing
Regulations. The Commission has adopted numerous technical Implementing
Regulations dealing with different aspects of aviation safety regulation including:
(a) the design, construction, maintenance and operation of aircraft;
(b) the licensing of flight crew, maintenance engineers and air traffic controllers;
(c) the provision of air traffic management and air navigation services;
(d) the design and operation of aerodromes.
These technical Regulations were adopted mainly by consensus.
2.4 Under EU law, certification and oversight responsibilities are split between EASA and
the competent authorities of the Member States. EASA has responsibility for aircraft,
engines and propellers (collectively referred to as “products”) which are intended for
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use as or as part of EU registered aircraft; for the component “parts” of such products;
and for organisations responsible for the design of such products and parts. EASA
also has responsibility for the oversight of organisations based in countries outside the
EU where those organisations are providing services within the scope of the Basic
Regulation, for example maintaining products or parts intended for use as or as part of
EU registered aircraft. All other certification and oversight activities (including
certification and oversight of production organisations) are the responsibility of the
Member State in which the individual or organisation is based. The Civil Aviation
Authority (“CAA”) undertakes these tasks in the UK.
2.5 The EU Regulations applicable on or before 29th March 2019 (may also apply to new exit date on 31 December 2020) are corrected by the
Aviation Safety (Amendment etc.) (EU Exit) Regulations 2019 (S.I. No 2019/645).
Since 29th March 2019 (may also apply to new exit date on 31 December 2020) a further five EU implementing Regulations have become
applicable, and corrections relating to these are made by this instrument. The five
new EU implementing Regulations relate to:
(a) the privileges of trainees for a light aircraft pilot licence (LAPL)
(b) the operation of balloons and sailplanes (gliders)
(c) the use of electronic flight bags.
They are as follows:
(i) Commission Implementing Regulation 2019/430 (aircrew), which amends
Commission Regulation No 1178/2011 (aircrew);
(ii) Commission Regulation 2018/394 (balloons), which amends Commission
Regulation 956/2012 (air operations);
(iii) Commission Implementing Regulation (EU) 2018/1975 (sailplanes and electronic
flight bags), which amends Commission Regulation 956/2012 (air operations);
(iv) Commission Regulation (EU) 2018/395 (operation of balloons);
(v) Commission Implementing Regulation 2018/1976 (operation of sailplanes).
Why is it being changed?
2.6 The instrument uses powers in the Withdrawal Act to make changes to retained
aviation safety legislation to ensure that the law functions effectively after the UK has
left the EU. These changes are necessary because the legislation has functioned on the
basis of the UK being part of the EASA/EU system and having certain obligations as
an EU Member State. If, from exit day, the UK is no longer part of the EASA system,
there needs to be provision in the UK’s legal framework for aviation safety for UK
bodies to carry out the regulatory activities previously carried out by EASA.
What will it now do?
2.7 From exit day, aviation safety legislation will work in a self-contained way within the
UK, independent of the EASA system, with the CAA as the UK-wide regulator. The
CAA already undertakes the majority of certification and oversight tasks required by
retained EU legislation. The CAA has contingency plans in place to ensure that it will
be able to discharge the responsibilities taken on from EASA. The UK will continue
to have the same technical requirements and standards as the EASA system on exit
day, as none of the changes made by this instrument affects the substance of the
technical requirements and standards established by retained EU legislation. Further
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detail on the corrections made by this instrument are set out in section 7 of this
memorandum.
3. Matters of special interest to Parliament
Matters of special interest to the Sifting Committees
3.1 The instrument is being laid for sifting by the Sifting Committees
Matters relevant to Standing Orders Nos. 83P and 83T of the Standing Orders of the House
of Commons relating to Public Business (English Votes for English Laws)
3.2 As the instrument is subject to negative resolution procedure there are no matters
relevant to Standing Orders Nos. 83P and 83T of the Standing Orders of the House of
Commons relating to Public Business at this stage.
4. Extent and Territorial Application
4.1 The territorial extent of this instrument is the United Kingdom.
4.2 The territorial application of this instrument is the United Kingdom, and it also has
extra-territorial effect in certain circumstances (as explained in paragraph 4.3).
4.3 This instrument has extra-territorial effect outside the United Kingdom in certain
situations. The extra-territorial effect is analogous to the way in which the EU
versions of the Regulations that it corrects have extra-territorial effect outside the EU.
In relation to these EU Regulations, this instrument also applies to (and amends those
Regulations so as to apply to) all aircraft which are registered in the UK, or which are
registered elsewhere but operated by an operator established in the UK, wherever they
may be.
5. European Convention on Human Rights
5.1 As the instrument is subject to negative resolution procedure and does not amend
primary legislation, no statement is required.
6. Legislative Context
6.1 This instrument is made in exercise of powers in section 8(1) of, and paragraph 21 of
Schedule 7 to, the Withdrawal Act.
6.2 The Withdrawal Act makes provision for repealing the European Communities Act
1972 and will preserve EU law, as it stands immediately before exit day, in UK law. It
enables the creation of a new body of domestic legislation by bringing the texts of
directly applicable EU legislation into domestic legislation, as well as saving EUderived domestic legislation which was made to implement the UK’s obligations as a
member of the EU. The Act also contains temporary power to make secondary
legislation to enable Ministers and the devolved administrations to deal with
deficiencies in retained EU law, to ensure the UK’s legal system continues to function
properly outside the EU.
7. Policy background
What is being done and why?
7.1 The instrument corrects retained EU aviation safety legislation in two main ways.
Firstly, Part 2 amends corrections made to certain retained Commission Regulations
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in the Aviation Safety (Amendment etc.) (EU Exit) Regulations 2019; in the main
these are necessitated by amendments made to the Commission Regulations which
have become applicable since 29th March 2019 (may also apply to new exit date on 31 December 2020) (there are also two small changes
made in regulations 3 and 4 in order to reverse corrections made by the Aviation
Safety (Amendment etc.) (EU Exit) Regulations 2019 to Regulation (EU) No.
376/2014 on occurrence reporting which are not needed). Secondly, Part 3 corrects
two new Commission Regulations which have become applicable since 29th March
2019 and which do not affect any legislation corrected by the Aviation Safety
(Amendment etc.) (EU Exit) Regulations 2019. In addition, Part 1 contains a citation
and commencement provision.
7.2 Corrections made include:
(a) assigning to the CAA the responsibilities and functions currently given to EASA;
and
(b) replacing EU terminology (e.g. “Member States”) where this would not be
appropriate after EU exit.
8. European Union (Withdrawal) Act/Withdrawal of the United Kingdom from the
European Union
8.1 This instrument is being made using the power in section 8 of, and paragraph 21 of
Schedule 7 to, the European Union (Withdrawal) Act 2018 in order to address failures
of retained EU law to operate effectively or other deficiencies arising from the
withdrawal of the United Kingdom from the European Union. In accordance with the
requirements of that Act the Minister has made the relevant statements as detailed in
Part 2 of the Annex to this Explanatory Memorandum.
9. Consolidation
9.1 Currently there are no plans to consolidate the legislation covered by this instrument.
10. Consultation outcome
10.1 Department for Transport Ministers and officials have regular engagement with the
aviation industry, aerospace industry, travel industry and consumer representatives.
Through specific meetings and workshops on EU exit, and at long-established
stakeholder forums, a number of issues related to the UK’s withdrawal from the EU
have been addressed. This includes plans for making secondary legislation to ensure
that the statute book continues to function irrespective of the outcome of negotiations.
The Department also works closely with the CAA on all aviation matters, including
preparing for EU exit. Stakeholders broadly favour retaining EU aviation safety
legislation, which affords stability; and they support the transfer of relevant functions
to the CAA.
11. Guidance
11.1 Where the CAA considers it appropriate to do so, the CAA will provide information
on how it will discharge new responsibilities that it takes over from EASA, for
example through publications on its website. The Department for Transport is not
producing any specific guidance on the amendments provided for in this instrument.
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12. Impact
12.1 There is no, or no significant, impact on business, charities or voluntary bodies.
12.2 There is no, or no significant, impact on the public sector.
12.3 An Impact Assessment has not been prepared for this instrument because the costs and
benefits to business are minor.
13. Regulating small business
13.1 The legislation applies to activities that are undertaken by small businesses.
13.2 No specific action is proposed to minimise the impact of the requirements on small
businesses (employing up to 50 people).
13.3 The basis for the final decision on what action to take to assist small businesses is that
the corrections made by this instrument are limited to what is needed to ensure that
the regulatory regime on aviation safety continues to function effectively after exit
day.
14. Monitoring & review
14.1 The approach to monitoring of this legislation is for it to be monitored in the course of
normal departmental business.
14.2 As this instrument is made under the EU Withdrawal Act 2018, no review clause is
required.
15. Contact
15.1 At the Department for Transport, Duncan Nicholls, telephone: 07825 263 416 or
email: duncan.nicholls@dft.gov.uk or Mike Alcock, telephone: 07824 857522 or
email: mike.alcock@dft.gov.uk can be contacted with any queries regarding the
instrument.
15.2 Catherine Adams, Deputy Director for Aviation Strategy and Consumers at the
Department for Transport, can confirm that this Explanatory Memorandum meets the
required standard.
15.3 Baroness Vere of Norbiton, Parliamentary Under Secretary of State, at the Department
for Transport can confirm that this Explanatory Memorandum meets the required
standard.
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Annex
Statements under the European Union (Withdrawal) Act
2018
Part 1
Table of Statements under the 2018 Act
This table sets out the statements that may be required under the 2018 Act.
Statement Where the requirement sits To whom it applies What it requires
Sifting Paragraphs 3(3), 3(7) and
17(3) and 17(7) of Schedule
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Ministers of the Crown
exercising sections 8(1), 9 and
23(1) to make a Negative SI
Explain why the instrument should be
subject to the negative procedure and, if
applicable, why they disagree with the
recommendation(s) of the SLSC/Sifting
Committees
Appropriateness
Sub-paragraph (2) of
paragraph 28, Schedule 7
Ministers of the Crown
exercising sections 8(1), 9 and
23(1) or jointly exercising
powers in Schedule 2
A statement that the SI does no more than
is appropriate.
Good Reasons Sub-paragraph (3) of
paragraph 28, Schedule 7
Ministers of the Crown
exercising sections 8(1), 9 and
23(1) or jointly exercising
powers in Schedule 2
Explain the good reasons for making the
instrument and that what is being done is a
reasonable course of action.
Equalities Sub-paragraphs (4) and (5)
of paragraph 28, Schedule 7
Ministers of the Crown
exercising sections 8(1), 9 and
23(1) or jointly exercising
powers in Schedule 2
Explain what, if any, amendment, repeals
or revocations are being made to the
Equalities Acts 2006 and 2010 and
legislation made under them.
State that the Minister has had due regard
to the need to eliminate discrimination and
other conduct prohibited under the
Equality Act 2010.
Explanations Sub-paragraph (6) of
paragraph 28, Schedule 7
Ministers of the Crown
exercising sections 8(1), 9 and
23(1) or jointly exercising
powers in Schedule 2
In addition to the statutory
obligation the Government has
made a political commitment
to include these statements
alongside all EUWA SIs
Explain the instrument, identify the
relevant law before exit day, explain the
instrument’s effect on retained EU law and
give information about the purpose of the
instrument, e.g., whether minor or
technical changes only are intended to the
EU retained law.
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Criminal
offences
Sub-paragraphs (3) and (7)
of paragraph 28, Schedule 7
Ministers of the Crown
exercising sections 8(1), 9, and
23(1) or jointly exercising
powers in Schedule 2 to create
a criminal offence
Set out the ‘good reasons’ for creating a
criminal offence, and the penalty attached.
Subdelegation
Paragraph 30, Schedule 7 Ministers of the Crown
exercising sections 10(1), 12
and part 1 of Schedule 4 to
create a legislative power
exercisable not by a Minister
of the Crown or a Devolved
Authority by Statutory
Instrument.
State why it is appropriate to create such a
sub-delegated power.
Urgency Paragraph 34, Schedule 7 Ministers of the Crown using
the urgent procedure in
paragraphs 4 or 14, Schedule
7.
Statement of the reasons for the Minister’s
opinion that the SI is urgent.
Explanations
where
amending
regulations
under 2(2)
ECA 1972
Paragraph 13, Schedule 8 Anybody making an SI after
exit day under powers outside
the European Union
(Withdrawal) Act 2018 which
modifies subordinate
legislation made under s. 2(2)
ECA
Statement explaining the good reasons for
modifying the instrument made under s.
2(2) ECA, identifying the relevant law
before exit day, and explaining the
instrument’s effect on retained EU law.
Scrutiny
statement
where
amending
regulations
under 2(2)
ECA 1972
Paragraph 16, Schedule 8 Anybody making an SI after
exit day under powers outside
the European Union
(Withdrawal) Act 2018 which
modifies subordinate
legislation made under s. 2(2)
ECA
Statement setting out:
a) the steps which the relevant authority
has taken to make the draft instrument
published in accordance with paragraph
16(2), Schedule 8 available to each House
of Parliament,
b) containing information about the
relevant authority’s response to—
(i) any recommendations made by a
committee of either House of Parliament
about the published draft instrument, and
(ii) any other representations made to the
relevant authority about the published draft
instrument, and,
c) containing any other information that
the relevant authority considers appropriate
in relation to the scrutiny of the instrument
or draft instrument which is to be laid.
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Part 2
Statements required when using enabling powers
under the European Union (Withdrawal) Act 2018
1. Sifting statement(s)
1.1 The Parliamentary Under Secretary of State, Baroness Vere of Norbiton, has made the
following statement regarding use of legislative powers in the European Union
(Withdrawal) Act 2018:
“In my view the Aviation Safety (Amendment etc.) (EU Exit) (No. 2) Regulations
2019 should be subject to annulment in pursuance of a resolution of either House of
Parliament (i.e. the negative procedure)”.
1.2 This is the case because the instrument only corrects deficiencies and failures in
retained EU law that have arisen as a result of the UK leaving the EU and leaves the
technical requirements unchanged. It does not create any criminal offences or the
power to make regulations or raise fees.
2. Appropriateness statement
2.1 The Parliamentary Under Secretary of State, Baroness Vere of Norbiton, has made the
following statement regarding use of legislative powers in the European Union
(Withdrawal) Act 2018:
“In my view the Aviation Safety (Amendment etc.) (EU Exit) (No. 2) Regulations
2019 does no more than is appropriate”.
2.2 This is the case because this instrument only corrects deficiencies and failures in law
that have arisen as a result of the UK leaving the EU. These changes are necessary to
ensure that the legislation relating to aviation safety functions correctly after the UK
has left the EU. It leaves technical requirements unchanged and only makes changes
to the legislative and regulatory framework which are necessary for the legislation to
operate effectively.
3. Good reasons
3.1 The Parliamentary Under Secretary of State, Baroness Vere of Norbiton, has made the
following statement regarding use of legislative powers in the European Union
(Withdrawal) Act 2018:
“In my view there are good reasons for the provisions in this instrument, and I have
concluded they are a reasonable course of action”.
3.2 These are:
(a) ensuring that the legislation governing aviation safety in the UK continues to
function effectively once the UK has left the EU;
(b) enabling the UK to continue to comply with its obligations under the Chicago
Convention; and
(c) maintaining the existing regulatory framework and technical requirements for
aviation safety, minimising disruption to industry and recreational flyers.
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4. Equalities
4.1 The Parliamentary Under Secretary of State, Baroness Vere of Norbiton, has made the
following statement:
“The draft instrument does not amend, repeal or revoke a provision or provisions in
the Equality Act 2006 or the Equality Act 2010 or subordinate legislation made under
those Acts.”
The Parliamentary Under Secretary of State, Baroness Vere of Norbiton, has made the
following statement regarding use of legislative powers in the European Union
(Withdrawal) Act 2018:
“In relation to the draft instrument, I, Baroness Vere of Norbiton, have had due regard
to the need to eliminate discrimination, harassment, victimisation and any other
conduct that is prohibited by or under the Equality Act 2010”.
5. Explanations
5.1 The explanations statement has been made in section 2 of the main body of this
explanatory memorandum.
