Civil Aviation Bill

Memorandum submitted by the British Airline Pilots’ Association (BALPA) (CA 03)

 

About us

1. Over 80% of the UK’s commercial pilots are members of BALPA and we are recognised as the main partner in 26 airlines covering all major UK operations. Our vision as an association is "to make every flight a safe flight" and have enjoyed working in partnership with the CAA over a number of years to make the UK one of the safest aviation industries in the world.

Summary

2. We are pleased to have been asked to present evidence to the Public bill Committee. In summary we argue:

a. That publication of this Bill with the surrounding debate of the CAA’s "primary duty" should trigger a more fundamental discussion as to whether economic, safety and security duties can be overseen by a single regulator – as illustrated by the CAA’s difficulty over new EU flight time limitation proposals

b. That if there is not to be a split in duties then the composition of the CAA Board should better reflect those it represents

c. That there should in any event be an independent scientific governance board

d. That if there is not to be a split in duties then the HSE should audit the CAA’s performance in safety and the NAO should audit its delivery of value for money

e. That the use by which medical data collected on pilots is used needs to be controlled

f. That experience on the effectiveness by which airports deal with security suggests there needs to be continuing Parliamentary oversight if delegation of power is not to become security anarchy.

Primary duty

3. We are concerned that the speed with which this Bill is being introduced will prevent a more profound discussion on the critical issue of what exactly is the CAA’s primary duty.

4. BALPA was formed in 1937 following the actions of the CEO of Imperial Airways who, responding to commercial pressure, was forcing professional pilots to operate when it was not, in the professional judgment of those pilots, safe to do so. The UK Parliament, to its eternal credit, became involved and this lead to the Cadman Report and the establishment, by Lord Reith, of a Whitley council.

5. Seventy five years later we are seeing a re-emergence of this dilemma. Which is why we are a) concerned that the focus of this Bill is on economic regulation and b) that the growing support for a fresh definition of "users of air transport services" is unbalanced in that it sees the user purely in economic te rms.

6. We strongly agree with the Transport Committee in pointing out that it is "unusual" for safety and security regulation to be combined with economic regulation. We believe that whilst ever the CAA is responsible for both economic and safety (and now security as well) there will be a tension.

7. It is not surprising, given the economic function of the CAA, that there is a close relationship between the airlines and the regulator. We do not question that but a large number of our members find the relationship too close with more than half believing that the CAA is too easily influenced by airlines. [1]

8. We increasingly believe these tensions cannot be reconciled. We fully understand the economic pressure on airlines as a result of issues such as heavy aviation taxation, constrained capacity and the global economic environment. Thus we believe it would be in the interests of aviation safety to completely separate the two functions. We note that this is not within the scope of the Bill but, as representatives of the most frequent end users who ultimately have all end users in their care, we believe we would be failing in our professional duty not to raise this with the committee.

9. Indeed the Transport Committee questioned Rt Hon Theresa Villiers MP in the oral evidence session on this point; she responded that CAA had managed these two functions well in the past. Even if that is the case, the increased economic pressure on airlines and the fierce commercial environment in which they operate has changed significantly over recent years.

10. As an example the current CAA/airline co-position on unsafe and unscientific flight time limitation regulations coming out of the European Aviation Safety Agency (EASA) is a practical demonstration of this conflict. [2] This is highlighted even further at the EASA level where we believe the Regulatory Impact Assessment (RIA) of the flight time limitations proposals were conducted in such a way as to leave it incomplete, having been inadequately resourced and premised on methodologies which were inadequate and prone to generate inaccurate calculations of cost associated with any improvement in the level of safety. On the other hand, the RIA did take into account commercial considerations, which we consider could have resulted in a misuse of powers and which were taken into account in such a way as to potentially breach the EU requirements of transparency and equality.

11. The pressure, therefore, to adopt unsafe regulations in order to promote the economic success of the industry is present. We believe that this conflict may give rise to some unintended consequences, the antidote to which is to have one regulator promoting the economic interests of the industry, and a separate one ensuring high safety standards.

12. If the more than 50% of our members are correct and the CAA is too easily influenced by airlines, this is matter of concern. The CAA needs to give leadership to the industry, not follow it. If it tries to do that with both the economic and safety functions we believe the likelihood of falling short is increased.

13. Our desire to see the economic and safety functions separated notwithstanding, and as long as the CAA does indeed retain both functions, BALPA believes that the CAA’s primary duty should be its safety regulation function and that the superiority of this function should be emphasised in the Bill.

CAA Governance

14. Sir Joseph Pilling, in his 2008 report of the strategic review of the CAA, recommended that modernising the CAA’s governance structure would help the CAA to maintain its general standing and record of success. Another recommendation was that the CAA Board should be allowed to appoint its own executive directors and determine their remuneration packages. The Bill contains provisions that make these changes.

15. We are concerned on two counts.

16. Firstly pilots’ collective operational experience – amounting to many millions of flying hours – finds no representative voice on the CAA Board. Pilots look to the CAA as carrying the torch for safety but increasingly see it as a remote body that is too close to airline management.

17. We believe that any delegation of power to the CAA to appoint its own Board should be matched with a requirement to ensure the Board is reflective of the industry and those whose livelihoods – indeed their lives – are dependent on it. That does not mean we are looking for a Board of industry delegates; but if the CAA is to have the confidence of those it serves then it must be seen to be representative and listen to that still quiet voice that tells it like it is at the sharp end.

18. Secondly, and given its importance as a regulator of a potentially dangerous industry, we would welcome a greater focus on scientific governance. Our position on the dual safety and economic function issue has been strengthened due to our recent disappointments with what we consider to be the lack of expertise – medical and scientific – within the CAA and the lack of reliable scientific research on which decisions and recommendations have been based.

19. We have often been disappointed about the level of expertise in the CAA and what we consider to be the lack of scientific rigour in analysing safety issues and in sponsoring research work. An example of this, as referenced above, is the recent apparent inability to correctly assess the safety impact of EASA’s flight time limitation proposals.

20. We would like to propose that any delegation of power to the CAA should be matched with a requirement under statute to establish a scientific governance board that should be required to include independent experts in their field. Should such a board be correctly constituted this would also give the CAA’s work, research and analysis more credibility.

Efficiency Duty and oversight

21. It is anomalous that the CAA sits outside of normal oversight procedures. In contrast with regulators such as the Office of Rail Regulation (ORR) and the OFCOM, for example, the National Audit Office (NAO) has no remit. There is no reason that the CAA should not be subject to NAO oversight, and we have strong reason to believe that the NAO should take an interest in some specific aspects of the CAA’s work.

22. However, the NAO’s oversight would only be in the realm of value-for-money and efficiency. As we argue in this submission the role of the CAA is much wider and embraces safety which, in many other industries, has important oversight by the Health and Safety Executive. But whilst the Health and Safety Executive (HSE) is responsible for regulating the occupational health and safety of all work activities on and around an aircraft when on the ground, they do not extend to pilots whose health and safety responsibility rests with the CAA.

23. If our argument that the time has come to split the CAA’s dual responsibilities is not supported then we believe it right that the CAA’s safety regime should be subject to external audit by the HSE

Medical Information

24. Clause 104 of the Bill outlines procedures for the disclosure of anonymised medical information. We support measures to increase medical and scientific understanding of flight crew health risks and are satisfied that no information about flight crew would be disclosed which could identify them, however, we have concerns about the potential impact of this clause.

25. The CAA could collect data from pilots, sell that data to a third party and the pilots who provided the data receive no benefit at all. The committee may care to investigate whether there is scope to restrict how personal data may be sold to companies as distinct from use by, for example, a university research unit.

Security

26. The Bill confers certain aviation security functions on the CAA, including the review of aviation security directions, advice and assistance to industry and compliance. The Secretary of State remains responsible for aviation security policy and making aviation security directions.

27. But pilots’ day-to-day experience suggests that there needs to be a lot more detail than this and we share the Transport Committee’s concern that there is insufficient detail to properly assess how this transfer will work. We note especially the difficulty in distinguishing between security policy issues (to be retained by DfT) and operational issues (to be transferred to CAA). Others in the industry including, for example, British Airways, have also highlighted a lack of clarity in this regard [1] .

28. We have major operational concerns about giving airports more power to make up their own rules on security. In a recent poll [2]

a. 89% of pilots believed that security arrangements need to be changed

b. 85% of pilots said airports don’t understand the views of pilots on security arrangements

c. 76% would not report a bad exeprience because nothing would be done about it

d. Only 28% said they trusted airports to make sensible security decisions

29. More worryingly more than half (53%) of pilots agree that going through airport security checks makes them feel less able and ready to fly. This issue has been highlighted in reports from the independent Confidential Human Factors Incident Report Programme (CHIRP).

30. Enforcing the same screening processes on pilots as on high-risk passengers is not justified. These screening processes occur in the pilots’ safety-critical pre-flight planning period. Ineffective screening processes at this time can, in fact, be counter-productive to safety as they can leave pilots with insufficient time to properly complete their pre-flight duties and can leave them in a stressed state which is not conducive to flight safety.

31. Pilots are not asking to be immune from security checks; 62% of pilots agree that they should go through them for the safety of passengers. But in reality the risk posed by flight crew is minimal and, as in the United States, should be changed to ensure a lighter touch. Delegating more power to airports will result in different procedures at different airports and will further frustrate pilots as they attempt to gain access to the secure zone to do their job.

32. In its current form the Bill will make the situation we have described worse. The delegation of security powers to the CAA and thence to airports will put oversight of these issues beyond parliamentary reach which we believe may be a matter of concerns for the Committee.

February 2012


[1] Telephone Polling conducted by Com R es between 20 th and 30 th September 2011. Representative sample of 500 pilots.

[2] BALPA would be happy to provide more information to the Committee on the issue of Flight Time Limitations as the current EASA proposals in that regard are the biggest threat to aviation safety for a generation. However, we note that this issue is not central to consideration of the Bill itself.

[1] House of Commons Transport Committee, Draft Civil Aviation Bill: Pre-Legislative Scrutiny, Thirteenth Report of Session 2010-12, para. 69.

[2] Telephone Polling conducted by Comres between 20th and 30th September 2011. Representative sample of 500 pilots.

Prepared 22nd February 2012