Draft Civil Aviation Bill - Transport Committee Contents


4  Aviation security

From DfT to CAA

65. The draft bill contains provisions to transfer responsibility for regulating aviation security[84] from the DfT to the CAA.[85] The Secretary of State would retain responsibility for aviation security policy but operational security functions would pass to the CAA. The cost of security regulation—some £5 million a year—would also be transferred, from the taxpayer, via the CAA's charges, to the aviation industry and ultimately to the air transport user. The Government's view is that the aviation industry rather than the general taxpayer should meet these costs. It also believes that there would be benefits from locating the operational aspects of security within an operationally-focused organisation; and synergies from having a single regulator for both aviation security and safety.[86] The CAA endorsed the argument regarding the benefits of a single regulator.[87]

66. At the time of the Queen's Speech, it was not envisaged that the bill would include security measures. Indeed, these did not form part of the DfT's consultation and industry witnesses told us that they had not been consulted on this aspect of the draft bill.[88] Although not opposed to the measures in principle, the aviation industry has concerns. Dr Humphreys of BATA told us that there was a lack of clarity and consultation on the proposed division of responsibilities between the DfT and CAA. There was also concern about the additional costs that the aviation industry would face.[89]

67. While there may be synergies in combining safety and security regulation functions in one regulator, it is unusual to combine these functions with economic regulation, given the potential for conflicts of interest. We pressed the Minister on this point. Mrs Villiers responded that the CAA had successfully combined safety and economic regulation in the past and that it would be able to take a sensible and proportionate approach to the additional role of security regulator. She did not foresee any conflict of interest being created.[90]

Division of policy-making and operations

68. The UK has a relatively good aviation security record. Mr Moloney, representing the DfT Trade Union Side, warned against changing a critical system, developed in the aftermath of the Lockerbie bombing, which had proved its effectiveness.[91] He argued that the division between policy and operations was not always clear cut and that division between two organisations would be a recipe for confusion and delay, with the danger that things would fall "between two stools". He cited the example of the DfT's response, implemented within one day, to the potential threat posed by liquids on board aircraft. He doubted that such a response would be possible under the proposed arrangements.[92] He said that the Government's motive for the transfer was purely financial—to reduce costs to the taxpayer.[93] In his view, no efficiency case had been made and the "user pays" principle was not appropriate to aviation security.[94]

69. Representatives of airports[95] and airlines, while not opposing the proposals, also expressed concerns about the lack of details on the division of security functions. David Hart of BA said:

    There is a lack of clarity for us, as an airline, about exactly who will be doing what and how the policy decisions will be filtered down and implemented.[96]

The CAA was content with the proposals in the bill and emphasised that it would clarify the precise security roles and operational boundaries for itself and the DfT in the run up to the transfer of functions.[97] Chief Executive Andrew Haines pointed out, however, that the Secretary of State for Transport would retain emergency powers with respect to security. These include the power to issue security directions under the Aviation Security Act 1982.[98]

70. Mrs Villiers said that a separation of policy-making from operations was not unusual and cited the example of policing where policy is set by the Home Secretary and operational decisions are made by the police. She denied that ministerial accountability for aviation security would be reduced if the draft bill were to be enacted.[99]

71. We are concerned that the decision to transfer aviation security regulation functions from the DfT to CAA was included in the draft bill at a late stage and not subject to consultation. The Government needs to explain to the CAA, the aviation industry and others the detailed division of security responsibilities and how it would operate in the public interest before the bill reaches committee stage.

RETAINING EXPERTISE

72. Some 90 security posts, currently located within the DfT, would be transferred to the CAA, increasing its establishment by around 10%.[100] Mr Moloney said that many of the DfT staff currently filling these posts were long-standing civil servants who might not wish to join the CAA and might seek transfers to other parts of the civil service.[101] He warned that there could be a serious loss of expertise. Indeed, the Impact Assessment accompanying the draft bill states:

    RISK: That the CAA lacks sufficient security expertise, although the DfT and the CAA are working to mitigate this.[102]

73. It is important that the CAA has sufficient security expertise to undertake its new role. The DfT and CAA should investigate employment arrangements, possibly including secondments rather than transfers, to avoid losing experienced staff and expertise in the transfer of posts from the DfT to the CAA.

A more flexible approach to aviation security

AN OUTCOMES-FOCUSED RISK-BASED REGIME

74. The DfT currently operates a "direct and inspect" aviation security regime: it is moving towards an outcomes-focused risk-based (OFRB) regime whereby the Government and regulator would set security objectives and the aviation industry would have some flexibility over how those objectives were achieved. This process is outwith the draft bill but, unlike the transfer of security functions to the CAA, has been the subject of a separate consultation exercise, conducted in 2011. The two measures are separate but "complementary".[103]

75. Representatives of airports[104] and airlines[105] accepted that the UK's security record was good but took the view that the system could be improved.[106] They see the current "one-size fits all" regime as rigid and costly, imposing excessive costs, particularly on smaller, regional airports. An OFRB regime is seen as an opportunity to change this and to bring costs down through flexibility, savings and innovation.[107] Virgin Atlantic said

    Staying still is not an option [...]. An outcomes-focused risk-based security regime is the optimum, and that is what we should be aiming for.[108]

76. Witnesses supported the proposed changes to an OFRB regime. OFRB is already in use for aviation safety and has proven acceptable to industry and Government.[109] Witnesses were concerned however that the bill has progressed more quickly than the change to an OFRB regime and that functions and costs would be transferred without the potentially beneficial improvements to the security regime which might offset regulatory cost increases.[110] Dr Humphreys of BATA stated:

    The current security regime imposes costs on foreign and UK airlines of about £1 billion a year, and it would take only a small percentage improvement in that to generate significant amounts of money. On the other hand, we are apparently to be charged an extra £5 million, which is never welcome.[111]

Whilst there may be savings from an OFRB system, Sian Foster of Virgin Atlantic told us that "We do not expect any cost savings in the short to medium term".[112] The CAA acknowledged these concerns:

    But the industry have said they support the principle and what they now want to see is the detail. I think there is an industry nervousness that they may get the transfer to the CAA without the benefit of that regime. That is something we want to work with industry and the Department for Transport to nail. It is certainly outstanding work.[113]

LIMITS ON FLEXIBILITY

77. As well as concerns about the speed of progress, there are worries about the extent to which flexibility will be possible or beneficial under any security regime, given the strong compliance element that will inevitably remain.[114] Moreover, many aspects of aviation security policy are decided at the European level.[115] Industry is looking for greater clarity and reassurance from Government:

    [...] we have to move from the concept and ask what a tangible regime would look like. As soon as you ask that question, you get into issues such as whether you can apply this new regime to all security regulation or only to the parts where the UK regulates more stringently - which it does; the UK has its own measures, so there is a debate. The bulk of security regulation is made in Brussels at present and many of the UK's measures relate to Brussels measures, so whichever way you look at it, the road leads back to EU legislation.[116]

78. The experience of Manchester Airport with body scanners is an example of the potential for confusion and the risks of innovating. Manchester Airport introduced body scanners with the support of the UK Government.[117] However, the European Commission objected, both to the type of scanner used on safety grounds, and to the UK's "no scan, no fly" policy. Manchester Airport may be forced to remove the scanners later this year, at considerable cost. Unless greater certainty can be achieved, the direct and inspect regime may be preferable.

79. The introduction of a new outcomes based aviation security regime does not require legislation and is therefore not subject to a decision by Parliament, despite the significance of the change. Nevertheless, it is closely linked to the security proposals in the draft bill. The early introduction of the bill should require the Government to accelerate the development of the OFRB regime. If not, the aviation industry will incur additional security costs but no savings. OFRB also depends on policy decisions made at EU level, which will require the Government to take a proactive approach to EU aviation security policy; if not, OFRB may be of limited worth.

80. There is a danger that the aviation industry will incur the additional costs of security regulation but not the savings that may come from the proposed introduction of the outcomes-focused risk-based (OFRB) security regime. It will require a pro-active approach from Government towards EU aviation security policy. The Department for Transport must do more to reassure the aviation industry that the potential benefits from an OFRB regime will be delivered, to offset the additional costs that it is imposing. It should also publish an explanation of how the proposed changes to security regulation will be more efficient while maintaining high levels of aviation security. We further recommend that the transfer of security staff and costs is timed to occur with the introduction of the OFRB regime.


84   This includes rule-writing, inspection and enforcement of international, European and domestic regulations.  Back

85   Q 146 Back

86   Q 178 and Draft Civil Aviation Bill: An effective regulatory framework for UK aviation: Policy Paper, Cm 8234-I, November 2011, pp 19-20 Back

87   Q 111  Back

88   Q 69  Back

89   Q 7 Back

90   Q 181 Back

91   Ev 32  Back

92   Qq 80 and 83 Back

93   Ev 32 Back

94   Q 84 Back

95   Q 43 [Mr Siddall]  Back

96   Q 71 [Mr Hart] Back

97   Qq 112-113 Back

98   Draft Civil Aviation Bill: An effective regulatory framework for UK aviation: Policy Paper, Cm 8234-I, November 2011 p 20 Back

99   Q 180 Back

100   Ev 45 Back

101   Q 80  Back

102   Draft Civil Aviation Bill Vol 3: Impact Assessment, November 2011, p 16 Back

103   Q 152 [Mrs Villiers] Back

104   Q 43 [Mr Siddall]  Back

105   Q 71 [Mr Hart] Back

106   Q 47 [Ms Gilthorp] Back

107   Q 9 and Ev 15  Back

108   Q 65 [Ms Foster] Back

109   Q 111 [Dame Deidre Hutton] Back

110   Ev 60  Back

111   Q 65  Back

112   Q 68  Back

113   Q 115 [Mr Haines] Back

114   Q 122  Back

115   Qq 19 and 123  Back

116   Q 44 [Mr Siddall] Back

117   HC Deb, 21 November 2011, Col 15 WS, Airport Security Scanners,  Back


 
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Prepared 19 January 2012