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Civil Aviation Bill

 

     

These notes refer to the Civil Aviation Bill as introduced in the House of Commons on 9th June 2005 [Bill 12]

CIVIL AVIATION BILL

     

     EXPLANATORY NOTES

INTRODUCTION

1.     These Explanatory Notes relate to the Civil Aviation Bill as introduced in the House of Commons on 9th June 2005. They have been prepared by the Department for Transport in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY

3.     The Bill makes provision for various civil aviation matters:

Noise and emissions

4.     The Bill will make clear that an aerodrome authority may charge aircraft operators for use of the aerodrome by reference to the emissions from an aircraft (as well as to the noise produced). The powers of the Secretary of State to limit noise and vibration from the taking-off and landing of aircraft at a designated aerodrome will be widened and the operator of a designated aerodrome will be given the power to levy financial penalties on an aircraft operator who breaches noise abatement requirements imposed by the Secretary of State. Aerodrome operators of other aerodromes will be given new powers to make noise control schemes.

Public airport companies

5.     The Bill will confer upon the Secretary of State the power to remove certain restrictions which apply to the activities of local authority owned airport companies.

[Bill 12—EN]     54/1

Appeals in respect of route licences

6.     The United Kingdom has special procedures which govern the allocation of scarce capacity between airlines on routes between the UK and third countries, designed specifically for circumstances where market forces are prevented from operating properly due to restrictions in bilateral air services agreements. In the first instance decisions are taken by the Civil Aviation Authority ("CAA"), but there is a right of appeal to the Secretary of State. The Bill will remove the right of appeal and allow scarce capacity cases, which essentially concern airline competition and consumer issues, to be determined by the CAA, which is the UK body with greatest expertise in these matters.

Health

7.     The Bill will give the Secretary of State the power to require the CAA to provide advice and assistance in connection with the health of people on board aircraft. Existing provision will enable the CAA to pass on to the aviation industry the cost of carrying out this work. The Bill will also enable further provision to be made by Order in Council in the future to safeguard the health of air passengers and crew.

Air Travel Trust fund

8.     The Bill will make provision for the protection of consumers in the event of the failure of a UK tour operator by requiring air travel organisers to make contributions to the Air Travel Trust fund. The Secretary of State will be given the power to make regulations requiring air travel organisers to make contributions to the fund, through the CAA.

TERRITORIAL EXTENT

9.     Most provisions in the Bill extend to the whole of the United Kingdom. The exceptions are as follows:

  •      clause 4 (power for aerodromes to establish noise control schemes) and paragraphs 2 and 5 of the Schedule, which extend to England and Wales and Scotland; and

  •      clause 5 (public airport companies), which extends to England and Wales only.

COMMENTARY ON CLAUSES

Note on abbreviations

10.     In these notes-

  • "the 1982 Act" means the Civil Aviation Act 1982 (c.16);

  • "the 1986 Act" means the Airports Act 1986 (c.31); and

  • "CAA" means the Civil Aviation Authority.

Clause 1: Aerodrome charges

11.     The purpose of the clause is to replace section 38 of the 1982 Act with a new section on aerodrome charges. Section 38 applies to licensed aerodromes. These are aerodromes licensed by the Civil Aviation Authority under an Air Navigation Order for the landing and take-off of aircraft which can be used for the public transport of passengers, or for giving instruction in flying to a person, or for conducting a flying test.

12.     The new section 38(1) empowers an authority owning or managing a licensed aerodrome to fix its charges by reference to:

    —     the noise caused by an aircraft or the inconvenience resulting from that noise;

    —     the amount or nature of emissions produced by an aircraft or the atmospheric pollution resulting from those emissions;

    —     the effect of an aircraft on noise or atmospheric pollution in the vicinity of the aerodrome; or

    —     any failure of an aircraft operator to comply with noise or emission limits.

13.     The new section 38(2) sets out the purposes for which such charges can be made, namely:

    —     to encourage the use of quieter aircraft and reduce inconvenience from aircraft noise;

    —     to encourage the use of aircraft which produce lower emissions;

    —     to control noise and atmospheric pollution in the vicinity of aerodromes; and

    —     to promote compliance with noise and emission limits.

     

14.     The new section 38(4) empowers the Secretary of State to direct specified aerodrome authorities to fix their charges using the powers in subsections (1) and (2) of the new section 38.

Clause 2: Regulation by Secretary of State of noise and vibration from aircraft

15.     This clause amends section 78 of the 1982 Act. Section 78 enables the Secretary of State to take steps to limit or mitigate the effect of noise and vibration connected with the taking off or landing of aircraft at designated aerodromes (currently Heathrow, Gatwick and Stansted).

16.     Section 78(3)(b) currently permits the Secretary of State to limit noise and vibration by specifying a maximum number of aircraft movements. The limitations of these powers are apparent from the decision of the High Court in R v. Secretary of State for Transport ex p. LB Richmond and others [1993] All ER 577. In that case Mr Justice Laws held that the restrictions for night flights intended to come into effect at Heathrow, Gatwick and Stansted (which were based on a quota system according to the noise of the aircraft used) were unlawful, because they only sought to impose control by reference to levels of exposure to noise. Since this ruling, restrictions on night flights at the airports have incorporated a cap on the numbers of aircraft movements permitted in addition to a quota count.

17.     Subsections (2) and (3) amend section 78(3) and 78(3)(c), to give the Secretary of State more flexible powers. Using these amended powers, the Secretary of State will be able to impose restrictions that would limit cumulative amounts of noise caused by an aircraft using a designated airport. Such restrictions could apply (i) in a 24-hour period, or (ii) between specified times of the day or night or (iii) by season but without specifying a maximum number of movements. The restriction could, for example, take the form of noise quotas or a limiting noise contour area.

18.     The Secretary of State would retain the power to impose a cap on the number of aircraft movements, but the ability to impose other or additional controls would allow the Secretary of State the option of simplifying noise control regimes and provide a continuing incentive to switch to quieter aircraft at night, while permitting movements to grow with accompanying economic benefit. This could allow the imposition of overall noise contour limits for existing facilities. At present, such limits can only be imposed in relation to a planning decision for a new facility (as in the case of the Heathrow Terminal 5 decision), or voluntarily by the airport operator.

19.     Subsection (5) inserts a new subsection (6A) after section 78(6) of the 1982 Act, to augment the powers of the Secretary of State to give to the manager of a designated aerodrome such directions as the Secretary of State considers appropriate for the purpose of avoiding, limiting or mitigating the effect of noise and vibration connected with aircraft landing or taking off. The manager is placed under a duty to comply with any such directions. New section 78(6A) will allow directions under subsection (6) to be given for the purposes of avoiding, limiting or mitigating the effect of noise and vibration either generally or in any particular area, for example arising from use of a particular runway. So directions could be used to move noise from one area to another, even if this does not limit or mitigate the total amount of noise suffered generally, so long as it avoids, limits or mitigates the amount of noise in a particular area.

20.     For example, Heathrow has two main independently operable runways, as may other airports designated under section 78 in future. The power to direct the aerodrome manager to use a particular runway would provide local residents with predictable periods of relief from aircraft noise. Requiring aircraft to take off or land in a given direction at a given time could also reduce the numbers of people subjected to the most severe aircraft noise.

21.     Section 78(8) empowers the Secretary of State to require the manager of a designated airport to install, operate and maintain noise measuring equipment and to provide noise measurement reports as specified by him. The manager is placed under a duty to comply with any such requirements.

22.     Where an airport manager fails to perform any of the requirements set down in an order under subsection (8), section 78(9)(a) empowers the Secretary of State to take such steps as he considers appropriate to remedy that failure, including the provision, operation and maintenance of equipment. The Secretary of State may recover any expenses he has incurred in so doing: section 78(9)(b). Where the airport manager has failed to provide reports to the Secretary of State, he is guilty of an offence: section 78(9)(i) and (ii).

23.     Subsection (6) amends section 78(9) to provide that the maximum fine laid down in subsection (9)(i) is increased to level 5 on the standard scale (currently £5,000) and the daily fine in subsection (9)(ii) is not to exceed 10% of level 5.

Clause 3: Penalty schemes

24.     This clause inserts into the 1982 Act new sections 78A and 78B.

25.     Section 78 of the 1982 Act does not explicitly provide for aerodromes to impose financial penalties on aircraft operators for breaches of noise requirements set under section 78.

26.     The effect of new section 78A is to confer on the manager of a designated aerodrome a power to levy financial penalties on an aircraft operator in respect of any breach by that aircraft operator of noise abatement requirements imposed by the Secretary of State under section 78.

27.     New section 78A(8) requires the aerodrome manager to make payments, equal to the amount of penalties received, for the benefit of persons who live in the area in which the aerodrome is situated.

28.     New section 78B(1) to (4) enables the Secretary of State to direct an aerodrome manager to make, amend or revoke a penalty scheme and sets out the duty to consult before doing so.

29.     New section 78B(5) makes it an offence to fail to comply with a direction given under section 78B(1) with a provision for a daily fine if failure continues after any conviction.

Clause 4: Power of aerodrome authorities to make noise control schemes

30.     This clause inserts into the 1982 Act new sections 38A, 38B and 38C.

31.     Although the 1982 Act contains a number of provisions relating to environmental issues, those provisions do not include any explicit statutory provision for aerodrome operators to implement noise control schemes.

32.     New section 38A(1) to (5) mirrors for operators of non-designated aerodromes many of the provisions of section 78 (as amended by clause 2 of this Bill) permitting regulation by the Secretary of State of noise and vibration from aircraft.

33.     New section 38A(8) excludes any aerodrome already designated under section 78 of the Civil Aviation Act 1982 because in that situation the noise control regime would be set by the Secretary of State rather than the aerodrome operator.

34.     New section 38A(10) provides that the use of the powers contained in the new sections 38A, 38B and 38C does not prejudice the use of any other power at the aerodrome operator's disposal to control aircraft noise.

35.     New section 38B makes supplementary provision for noise control schemes. New section 38B(2) defines the maximum area within which the aerodrome operator's powers to control aircraft noise apply. There is also provision for the Secretary of State to define (by order) this maximum area, in respect of individual aerodromes.

36.     New section 38B(5) provides for consultation by the Secretary of State before making an order under subsection (2).

37.     New section 38C provides aerodrome operators with the power to impose penalties where the noise control scheme it is permitted to establish is not complied with.

38.     New section 38C(2) and (3) provide for a financial penalty to be imposed on an aircraft operator if he breaches the requirements of a noise control scheme.

39.     New section 38C(4) and (5) ensures that the scheme will provide for aircraft operators to be able to make representations to the aerodrome operator as regards the imposition of penalties and for the aerodrome operator to take such representations into account.

40.     New section 38C(6) requires the aerodrome authority to make payments, equal to the amount of penalties received, for the benefit of persons who live in the area in which the aerodrome is situated.

Clause 5: Public airport companies: power of Secretary of State to specify additional activities

41.     Section 17(4) of the 1986 Act bars a local authority owned airport company (known as a "public airport company"), or any subsidiary, from engaging in activities in which none of its shareholding local authorities has the power to engage.

42.     Clause 5 amends the 1986 Act in two ways. Subsection (2) amends section 17 of the 1986 Act to provide that the bar in section 17(4) shall not apply in relation to activities permitted under a new section 17A.

43.     Subsection (3) inserts a new section 17A into the 1986 Act which allows the Secretary of State, by regulations, to specify what activity will be a permitted activity. To be so specified, he must consider the activity to be incidental to or connected with the business of operating a commercial airport. The regulations may set conditions on the permitted activities, for example limiting their scope to activities of a commercial nature or to activities carried out in certain countries or territories. By virtue of section 79 of the 1986 Act, the regulations are subject to the negative resolution procedure.

Clause 6: Removal of appeal to Secretary of State in respect of route licences

44.     The UK has special procedures to govern the allocation of scarce capacity between airlines on routes between the UK and third countries, designed specifically for circumstances where market forces are prevented from operating properly owing to restrictions in bilateral air services agreements.

45.     The available capacity is allocated by the Civil Aviation Authority following a public hearing at which the airlines concerned, and other interested parties, are allowed to, amongst other things, appear in person, produce oral and written evidence and have the opportunity of cross examination. The CAA considers this evidence and decides between the applicants on the basis of its view on which proposal will bring the greatest benefits to consumers. The successful airline or airlines are awarded the additional number of flights or passenger seats, and other airlines have their route licences conditioned to prevent them operating more (or perhaps any) services on the same routes until bilateral circumstances change.

46.     Section 69A of the 1982 Act currently provides a right of appeal to the Secretary of State for Transport against a route licence decision of the CAA, by the application of air transport licence provisions with modifications. In his determination of an appeal the Secretary of State may uphold the CAA's decision or direct it to re-hear the case or to reverse or vary its decision. Clause 6 amends section 69A of the 1982 Act and regulation 27 of the Civil Aviation Authority Regulations 1991 (S.I 1991/1672) to remove this right of appeal. Affected parties would instead be able to challenge a decision of the CAA in the courts by judicial review. Subsections (2) and (3) achieve this amendment by modifying the application of the relevant sections of the 1982 Act to route licence cases. Subsection (3) ensures that, where the CAA has decided to transfer allocation from an incumbent airline, or issue a new allocation, the CAA may delay the date of implementation of the change in order to ensure continuity of service provision. Subsection (5) ensures that any appeal to the Secretary of State in train at the time of coming into force of this clause is not affected by the amendments.

Clause 7: Functions with respect to health

47.     Subsection (2) amends section 1(1) of the 1982 Act to extend the general duties of the Secretary of State relating to civil aviation to include measures for safeguarding the health of people on board aircraft.

48.     Subsection (3), which amends section 3(c) of the 1982 Act, confers on the CAA such functions relating to the health of such people as are provided for by or under any Air Navigation Order.

49.     Subsection (4)     amends section 16 of the 1982 Act. Firstly, this amendment makes clear that the Secretary of State can require the CAA to provide advice and assistance in connection with his civil aviation functions on a continuing basis. Secondly, the amendment precludes the CAA from recovering from the Secretary of State the cost of advice and assistance provided to him in relation to the health of people present on board aircraft. The CAA's health functions will be funded by a charges scheme already provided for under section 11 of the 1982 Act.

50.     Subsection (5) widens the scope of matters which may be dealt with in an Air Navigation Order to include provision for safeguarding the health of passengers and air crew.

Clause 8: Documentary evidence: updating of references

51.     The purpose of this clause is to amend section 96(1)(b) of the 1982 Act, in order to remove references to documents which are no longer in use and to substitute the current correct description.

Clause 9: Funding of Air Travel Trust Fund by contributions paid by air travel organisers

52.     Section 71 of the 1982 Act currently allows the Secretary of State to make regulations in relation to the provision of flight accommodation, under which powers the Civil Aviation (Air Travel Organisers' Licensing) Regulations 1995 have been made.

53.     This clause adds two new sections (71A and 71B) to the 1982 Act providing the Secretary of State with powers to make regulations requiring persons applying for licences by virtue of section 71 to make contributions to the Air Travel Trust. The contributions are to be in respect of the period for which the licences are to be issued.

54.     New section 71A provides as follows.

55.     Subsection (1) confers the general power to make such regulations, while subsection (2) sets out particular matters for which the regulations will be able to make provision.

56.     Subsection (2)(a) permits the regulations to prescribe the factors the CAA is to use when calculating contributions payable by applicants for licences.

57.     Subsection (2)(b) permits the regulations to authorise the CAA, with the consent of the Secretary of State and after consultation, to set the rates and dates for the payment of those contributions by different descriptions of persons.

58.     Subsection (2)(c) permits the regulations to require contributions to be paid, or undertakings to pay contributions to be given, before a licence is issued under section 71.

59.     Subsection (2)(d) permits the regulations to require licence holders to pay additional contributions where the contribution rate increases during the licence period.

60.     Subsection (2)(e) permits the regulations to require persons applying for the variation of a licence to pay additional contributions.

61.     Subsection (2)(f) permits the regulations to make provision for persons, in prescribed circumstances, to be reimbursed in respect of payments which they have made.

62.     Subsection (2)(g) permits the regulations to make provision for the payment of interest in relation to unpaid contributions and for this interest to be recoverable as a debt due to the Air Travel Trust.

63.     Subsection (2)(h) permits the regulations to make provision for the CAA to act as agent for the trustees of the Air Travel Trust in collecting and recovering contributions from licence holders, and for the reimbursement of associated costs.

64.     Subsection (2)(i) permits the regulations to make provision for the CAA to suspend the requirement to make contributions in respect of a period either generally or for a particular description of persons.

65.     Subsection (2)(j) permits the regulations to make provision for the CAA, after consulting the Secretary of State, to make exemptions from the requirement to make contributions on such conditions as the CAA thinks fit.

66.     Subsection (2)(k) permits the regulations to make provision to require the CAA to publish prescribed matters in a prescribed manner; this would allow regulations to require publication of details of exemptions in the CAA's Official Record.

67.     Subsection (2)(l) permits the regulations to make provision for creating criminal offences to be tried summarily and punishable with a fine which does not exceed level 5 on the standard scale (currently £5,000).

68.     Subsection (3) permits the regulations to authorise the CAA: a) to refuse to issue a licence to a person; b) to refuse to vary a licence held by a person and c) to vary, suspend or revoke a licence held by a person, if the person concerned has failed to comply with a prescribed requirement of the regulations or has breached an undertaking in relation to the payment of contributions.

69.     Subsection (4) disapplies section 4 of the 1982 Act in relation to any functions conferred on the CAA by regulations made under this new section. Section 4 relates to the performance by the CAA of its general functions.

70.     Subsection (5) defines the Air Travel Trust for the purposes of the new provisions of the 1982 Act.

71.     New section 71B provides as follows.

72.     Subsection (1) obliges the Secretary of State to consult the CAA and the trustees of the Air Travel Trust before making regulations under new section 71A.

73.     Subsection (2) requires the CAA, on being so consulted, to consult those who hold licences issued in accordance with section 71 and any other person who appears to the CAA to have an interest in the matter, so far as it considers it reasonably practicable to do so.

Clause 10: Miscellaneous provisions relating to the Air Travel Trust

74.     Subsection (1) obliges the Secretary of State to lay before Parliament a copy of every report received from the trustees of the Air Travel Trust in accordance with the terms of the trust deed.

75.     Subsection (2) seeks to prevent any court changing the terms of the deed establishing the Air Travel Trust unless the variation is sought by, or with the consent of, the Secretary of State.

76.     Subsection (3) defines the Air Travel Trust for the purposes of the clause.

Clause 11: Scotland

77.      Clause 11 amends the Scotland Act 1998 (Transfer of Functions to Scottish Ministers) Order 1999 to reflect the amendments to the 1982 Act being made by clauses 1, 3 and 4. The Order provides that certain functions conferred on a Minister of the Crown by the 1982 Act are, in or as regards Scotland, exercisable by the Scottish Ministers instead.

Clause 12: Consequential amendments

78.     Clause 12 and the Schedule amend the 1982 Act and the 1986 Act in consequence of the amendments of those Acts provided for in clauses 1, 3, 4 and 9.

Clause 13: Short title, commencement and extent

79.     Clause 13 provides for the Bill to come into force on a day or days to be appointed by order made by the Secretary of State and sets out the extent of different provisions of the Bill.

FINANCIAL EFFECTS

80.     The Bill's effects on public expenditure are expected to be de minimis. The Department already incurs costs in regulating noise at airports designated for the purposes of section 78 of the Civil Aviation Act 1982. The provisions of the Bill provide more flexible powers to regulate, but any effect on the current costs would be de minimis; nor would the provisions in themselves make it more or less likely that additional airports will be designated under section 78; as each case will continue to be considered on its merits. The powers of direction under section 38(2) of the 1982 Act (which would be replaced by new section 38(4)) have not to date been exercised, and therefore no increase in public expenditure is expected as a result of the new section 38. The provisions relating to health and the Air Travel Trust fund will result in a small reduction in public expenditure in the region of £2 million per annum.

IMPLICATIONS FOR PUBLIC SERVICE MANPOWER

81.     The Bill is not expected to increase public service manpower.

SUMMARY OF THE REGULATORY IMPACT ASSESSMENT

82.     The Regulatory Impact Assessment sets out the costs and benefits of the Bill's provisions. In summary the RIA concludes that the Bill will introduce a package of useful measures designed to improve environmental protection from civil aviation and improve consumer protection, without disproportionate regulatory impact.

83.     Copies of the RIA are available from the Department for Transport's website: www.dft.gov.uk or by contacting Avril Huston, Aviation Environmental Division, Department for Transport, Zone 1/33 Great Minster House, 76 Marsham Street, London SW1P 4DR.

EUROPEAN CONVENTION ON HUMAN RIGHTS

84.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Secretary of State for Transport has made the following statement:

    In my view the provisions of the Civil Aviation Bill are compatible with the Convention rights.

85.     Clauses 1 to 4 of the Bill engage article 8 of the Convention. The existing controls on night flights which operate at the UK's largest airports, Heathrow, Gatwick and Stansted, have been judicially considered to assess their compatibility with the Convention. In 2003 the European Court of Human Rights, sitting as a Grand Chamber, delivered its judgment in the case of Hatton and Others v. UK.

86.     The case had been brought by residents living in the vicinity of Heathrow who complained of intrusive noise from aircraft operating at night and alleged that Government controls on night flights at that airport gave rise to a violation of their rights under article 8.

87.     In Hatton the Court found that there had been no violation of article 8. There is no explicit right in the Convention to a clean and quiet environment, but where an individual is directly and seriously affected by noise or other pollution, an issue may arise under Article 8. The Court recognised the 'direct democratic legitimation' of national authorities and accepted the principle that they are better placed than an international court to evaluate local needs and conditions and reach a decision on general policy in circumstances where opinions within the democratic society may differ widely.

88.     The Government is content that its legislative proposals with regard to aircraft noise and emissions strike a fair balance between the rights and interests of the individuals affected by night noise and the conflicting interests of others and of the community as a whole. It is considered that clauses 1 to 4 of the Bill are compatible with article 8.

89.     Clause 6 potentially engages article 6(1) of the Convention because the amendment to the 1982 Act concerns the determination of a civil right. Although clause 6 removes the right of appeal to the Secretary of State, it leaves the decision of the CAA on allocating scarce capacity subject to judicial review, which in the Government's view is compatible with article 6(1).

90.     In areas of classic administrative decision-making, the European Court of Human Rights has held that the requirements of article 6(1) are fulfilled by a composite approach involving a decision on the merits by an administrative decision maker at first instance, combined with an appeal on a point of law only to an article 6 compliant Court such as the court hearing the judicial review.

91.     For the composite test to apply, two conditions must be satisfied. Firstly the decision must be in a "specialised areas of the law" which is clearly satisfied in relation to air route licensing. Secondly, there must be adequate safeguards at the first hearing. The critical issue is whether the administrative procedure provides the applicant with a fair opportunity to dispute the primary facts. The procedure at air route licence hearings is set out in regulation 26 of the Civil Aviation Authority Regulations 1991 (S.I 1991/1672). At a hearing, each party may amongst other things, appear in person, produce oral and written evidence and have the opportunity of cross examination. Accordingly, the Government is of the view that these procedural safeguards are met and that the composite test applies.

92.     It is considered that the charges to be levied upon the aviation industry under clauses 7, 9 and 10 engage article 1 of the First Protocol. However, the Government takes the view that the clauses strike a fair balance between the general interests of the community and the protection of the rights of individuals, including air passengers and the aviation industry and its shareholders. The clauses are therefore compatible with Convention rights.

 
 
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