Appendix 1
S.I. 2021/534
Air Navigation (Carbon Offsetting and Reduction Scheme for International Aviation) Order 2021
1.In its letter to the Department of 14th July 2021, the Committee requested a memorandum on the following points:
1. Explain why the signature block to this instrument does not record the Treasury’s consent recited in the preamble (having regard to the paragraphs relating to S.I. 2021/486 in our Fourth Report of Session 2021–22).
2. Explain—
(a) the difference between notifying a proposal for modification of an Emissions Monitoring Plan under article 26(1) and notifying a modification of an Emissions Monitoring Plan under article 27(1); and
(b) by reference to examples, the intended effect in practice of article 27(1) and how it compares to the obligation in article 26(1).
3. Explain what “the relevant aeroplane operator documentation” is intended to mean in article 28 and paragraph 4(3) and (7) of Schedule 4.
4. In article 37(7), explain—
(a) who is intended to be subject to the duty to use the data provided ICAO for the purposes specified in that paragraph; and
(b) where “Sectoral Growth Factor” is defined, or whether it is the same as the “Sector’s Growth Factor” to which the tables in Schedule 1 refer.
5. In relation to article 48(1), explain—
(a) why it is necessary to confer a power on the judge to “authorise a Regulator to designate an authorised person to exercise the power in article 47(1)(a)”, given that article 45(1) allows the Regulator to authorise a person to exercise the Regulator’s powers under Part 5; and
(b) why it does not confer a power on the judge to issue a warrant that allows a Regulator to exercise a power of entry directly, given that article 47(1)(a) applies to “a Regulator or an authorised person”.
6. Explain what notice is required to be issued under article 26(2), for the purposes of the right to appeal under article 65(1)(b) and the effect of the appeal under article 67(2)(c).
7. Explain why paragraph 1(2) to (6) of Schedule 1 only requires the compliance of aeroplane operators and Regulators, given that several of the requirements listed in the timeline and set out in the Order are imposed on the Secretary of State, and given that the corresponding Appendix of the Chicago Convention requires the compliance of “aeroplane operators and States”.
8. Confirm whether in Schedule 6—
(a) in paragraph 2(8) and (9), references to sub-paragraph (11) should be to sub-paragraph (10); and
(b) in paragraph 3(23), the reference to sub-paragraphs (5) to (7) should be to sub-paragraph (4), so as to reflect the cross-references in equivalent provisions of the Chicago Convention.
9. Explain how the deadlines in paragraph 2 of Schedule 7 and paragraph 2 of Schedule 8 will be calculated where the appeal is made in relation to a notice under the provisions listed in regulation 65(2), and in particular how an appellant will be aware of “the date of the decision” (in Scotland) or “the date on which the decision of the Regulator takes effect” (in Northern Ireland).
2.The Department’s response to each of these points is as follows.
3.“Explain why the signature block to this instrument does not record the Treasury’s consent recited in the preamble (having regard to the paragraphs relating to S.I. 2021/486 in our Fourth Report of Session 2021–22).”
4.Compliance with the precondition of consent required under s.60(3)(p) of the Civil Aviation Act 1982 was properly achieved by obtaining the requisite consent and recording that consent in the preamble, as presented in the Order. The consent is set out in the preamble in the form prescribed under the Statutory Instrument Practice (SIP) for instruments going before the Privy Council.
5.The Department notes the paragraphs relating to S.I. 2021/486 in the Committee’s Fourth Report of Session 2021–22. It recognises that whilst it is not a requirement in order that the instrument be lawfully made, the Treasury’s consent to the Order would usually be reflected in a signature. The Parliamentary Unit at HM Treasury determined that, as HM Treasury consent was not required on the face of the instrument, Treasury Commissioners’ signatures were not required, and accordingly provided consent in the form of an e-mail dated 26/03/2021. The Parliamentary Unit took the same approach that was taken with the Air Navigation Order 2016, which Treasury Commissioners did not sign.
6.“Explain—
(a) the difference between notifying a proposal for modification of an Emissions Monitoring Plan under article 26(1) and notifying a modification of an Emissions Monitoring Plan under article 27(1); and
(b) by reference to examples, the intended effect in practice of article 27(1) and how it compares to the obligation in article 26(1).”
7.The Department’s position is that article 26(1) requires modifications for an Emissions Monitoring Plan to be submitted to the regulator for approval. Article 27(1) supplements Article 26(1) in enabling minor, non-significant, modifications to be simply notified to the regulator, giving the Regulator a discretion to allow for a quicker process for changes that are not significant.
8.Examples of significant changes are provided in article 27(4). The Department considers that non-significant modifications include rectifying typographical errors and other changes analogous to those changes to a statutory instrument which can be effected by a correction slip.
9.“Explain what “the relevant aeroplane operator documentation” is intended to mean in article 28 and paragraph 4(3) and (7) of Schedule 4.”
10.The Department considers the words “relevant aeroplane operator documentation” to have their ordinary English meaning. Namely, that they cover any documentation that the aeroplane operator holds which is relevant to establishing fuel density, such as fuel specifications documentation, technical certifications of the fuels against international standards, blending ratios, invoices, etc, and any other documentation the aeroplane operator has in relation to the fuels being uplifted to their aircraft that are relevant to establishing the fuel’s density.
11.“In article 37(7), explain—
(a) who is intended to be subject to the duty to use the data provided ICAO for the purposes specified in that paragraph; and
(b) where “Sectoral Growth Factor” is defined, or whether it is the same as the “Sector’s Growth Factor” to which the tables in Schedule 1 refer.”
12.In including article 37(7) in this instrument, the Department sought to implement Annex 16, Volume IV, paragraph 2.5.2:
13.“2.5.2 State
2.5.2.1 If the aeroplane operator does not provide its annual Emissions Report in accordance with the timeline as defined in Appendix 1, then the State to which it is attributed shall engage with the aeroplane operator to obtain the necessary information. If this proves unsuccessful, then the State shall estimate the aeroplane operator’s annual emissions using the best available information and tools, such as the ICAO CORSIA CO2 Estimation and Reporting Tool (CERT) as described in Appendix 3.
2.5.2.2 If the State does not provide its annual aggregated Emissions Report to ICAO in accordance with the timeline as defined in Appendix 1, then the data provided by ICAO shall be used to fill these gaps and calculate the total sectoral CO2 emissions in a given year and the Sectoral Growth Factor, as defined in Chapter 3.”
14.However, the Department notes that there is no one other than the International Civil Aviation Organisation (ICAO) who will need to calculate the total sectoral CO2 emissions or the Sectoral Growth Factor, so the onus is therefore on ICAO to fill any gaps in reports submitted by a State, and any sanction for non-compliance is a matter for ICAO. Accordingly, and as the Department does not purport to impose obligations on ICAO, an international body, article 37(7) should be omitted from the instrument. Provision will be included in an amending Order accordingly.
15.“In relation to article 48(1), explain—
(a) why it is necessary to confer a power on the judge to “authorise a Regulator to designate an authorised person to exercise the power in article 47(1)(a)”, given that article 45(1) allows the Regulator to authorise a person to exercise the Regulator’s powers under Part 5; and
(b) why it does not confer a power on the judge to issue a warrant that allows a Regulator to exercise a power of entry directly, given that article 47(1)(a) applies to “a Regulator or an authorised person”.
16.The Department is grateful to the Committee for these questions and agrees that article 48(1) might have been drafted more clearly. The Department’s intention, in making this provision, was to be consistent with the approach taken in the Greenhouse Gas Emissions Trading Scheme Order 2020 which covers the UK’s domestic emissions trading scheme for aviation carbon emissions. The article should properly refer to the power of a judge to issue a warrant to authorise “the regulator or an authorised person” to exercise the power in article 47(1)(a). Provision to amend this article will be included in an amending Order.
17.“Explain what notice is required to be issued under article 26(2), for the purposes of the right to appeal under article 65(1)(b) and the effect of the appeal under article 67(2)(c).”
18.The Department acknowledges that there is no relevant notice that is required to be issued under Article 26(2) for the purposes of the right to appeal under article 65(1)(b) or the effect of the appeal under article 67(2)(c). Article 26(2) enables the aeroplane operator to resubmit an Emissions Monitoring Plan. Pursuant to articles 27(1) and (2), the modified Emissions Monitoring Plan is subject to a regulator decision to approve or confirm that the changes are not significant. As a right of appeal would lie against a regulator’s decision with regard to such resubmitted plans, the references to article 26(2) in articles 65(1)(b) and 67(2)(c) should instead refer to article 27(2). The Department commits to making the appropriate amendment.
19.“Explain why paragraph 1(2) to (6) of Schedule 1 only requires the compliance of aeroplane operators and Regulators, given that several of the requirements listed in the timeline and set out in the Order are imposed on the Secretary of State, and given that the corresponding Appendix of the Chicago Convention requires the compliance of “aeroplane operators and States”.
20.The Department acknowledges that paragraphs 1(2) to (6) of Schedule 1 should also refer to the compliance of the Secretary of State with the relevant requirements. The Department commits to making the appropriate amendment.
21.“Confirm whether in Schedule 6—
(a) in paragraph 2(8) and (9), references to sub-paragraph (11) should be to sub-paragraph (10); and
(b) in paragraph 3(23), the reference to sub-paragraphs (5) to (7) should be to sub-paragraph (4), so as to reflect the cross-references in equivalent provisions of the Chicago Convention.”
22.The Department acknowledges that references to sub-paragraph (11) in paragraphs 2(8) and (9) of Schedule 6 are in error. In paragraph 2(8) of Schedule 6, the cross-reference should be to sub-paragraphs “(10) to (13)”. In paragraph 2(9) of Schedule 6, the cross-reference to sub-paragraph (11) should also be to sub-paragraph (10).
23.Further the Department acknowledges that in paragraph 3(23), the reference to sub-paragraphs (5) to (7) are in error.
24.The Department commits to making the appropriate amendments.
25.“Explain how the deadlines in paragraph 2 of Schedule 7 and paragraph 2 of Schedule 8 will be calculated where the appeal is made in relation to a notice under the provisions listed in regulation 65(2), and in particular how an appellant will be aware of “the date of the decision” (in Scotland) or “the date on which the decision of the Regulator takes effect” (in Northern Ireland).”
26.The aeroplane operators that are administered by the regulators in Scotland and Northern Ireland will be subject to the provisions of Schedules 7 and 8, respectively. The dates of the decision or when the decision takes effect are indicated in the provisions referred to in article 65(2). They are case specific but include, for example, the expiry of a specified time period (deemed withdrawal of application), specific notices (information notices, penalty notices), a decision that the regulator may be asked to make (in determining confidentiality of information), calculations and estimates made to specific timeframes (specified in Schedule 1), and the date of issue of plans or conditions applicable to plans. The purpose of including these Schedules was to be consistent with the approach taken in the Greenhouse Gas Emissions Trading Scheme Order 2020 which covers the UK’s domestic emissions trading scheme for aviation carbon emissions. A notice which provides a decision provides a definite and fair point in time on which to base the date on which the decision takes effect.
Department for Transport
20 July 2021
Published: 17 September 2021 Site information Accessibility statement