Select Committee on European Union Fortieth Report


CIVIL AVIATION SECURITY (12588/05)

Letter from the Chairman to Karen Buck MP, Parliamentary Under Secretary of State for Transport, Department for Transport

  Thank you for your letter of 20 December 2005[21] in reply to mine of 9 November 2005 which Sub-Committee B considered at its meeting on 23 January 2006.

  Members noted your explanation as to why a Regulatory Impact Assessment on this document was not necessary or appropriate.

  We note that discussions on this document are on-going and that the European Parliament's First Reading is due to take place in April 2006. We are maintaining the scrutiny reserve but will review this after the First Reading and when we have received a further report from you on progress on the various issues of concerns that you raise in your letter.

25 January 2006

Letter from Derek Twigg MP, Parliamentary Under Secretary of State, Department for Transport to the Chairman

  Thank you for your letter of 25 January to Karen Buck in respect of Explanatory Memorandum (EM) 12588/05. I am writing to update you on developments.

  The proposed Regulation has now been discussed in a number of Council working group meetings, by the European Parliament's Transport and Tourism Committee and by the Economic and Social Committee. Good progress has been made in recent negotiations and the Transport Council was therefore able to reach a General Approach on 27 March. The Parliament has not yet considered the document, but it is thought that they may accept the proposal at First Reading, currently scheduled for April.

  As regards the issues of the proposal on which the Government had some difficulties:

    —  on Article 5, more stringent measures, there have been no further developments since Karen Buck's letter of 20 December 2005. The Commission retains its scrutiny reserve on the Council Working Group's proposed amendment but Member States including the UK stand firm in opposing the text as first advanced;

    —  on Article 6, more stringent measures requested by third countries, the Working Group has agreed an amendment to the effect that the Commission will "draw up", after consultation with the regulatory committee, an appropriate response to any such third countries' requests. The Commission and Member States are content with this;

    —  the proposed Article 17, agreements with third countries, has now been deleted. It was identified as being unnecessary, as a Council mandate would in any case be required before any Community negotiations with a third country could begin;

    —  Chapter 10, on in-flight measures, has now been further simplified and brought closer into line with existing International Civil Aviation Organisation (ICAO) requirements. The Commission appears content that this will achieve its stated objective of providing for the management of the interface between in-flight and ground security measures, particularly in respect of the carriage of weapons, without straying into areas of national competence. We are also content, while remaining aware that it will be necessary to closely monitor future developments in implementing legislation;

    —  the use of the term "entities" has now been more closely tied to bodies actually implementing security measures, rather than those simply abiding by them. This is an improvement, but there may still be a need to be seek specific derogations in the implementing legislation; and

    —  on cargo exemptions, the Commission takes the view that if the framework legislation were to contain provisions paralleling those for transfer passengers and baggage, other types of cargo exemptions would not be possible. The UK is of the view that options other than establishing "equivalency" (the intended basis for exemptions for transfer passengers and baggage) might be appropriate, in particular for all-cargo flights. We can therefore accept the text as it stands.

  The Gibraltar provision was also of interest to the Committee. The UK Government is currently involved in positive and constructive trilateral discussions with the Spanish and the Government of Gibraltar on a number of Gibraltar topics, including the airport. In the meantime, we are confident that the relationship we have with the Spanish intelligence community is such as to ensure that were any information about possible threats to Gibraltar airport to come to them, they would share it with us.

  Other Member States have voiced a number of concerns about the proposed regulation. These have usually been on points of detail, but discussions have particularly focused on two issues, derogations and mail:

    —  on derogations, Member States have been much exercised about possible consequences for small or specialised operations, which might be disproportionately affected if bound by all the provisions of this Community legislation. Our view has been that the Regulation should concentrate on more typical operations, and not build the text around exceptions. We have also contended that information about derogations—which might be exploited by terrorists—should not be put in the public arena. There now appears to be general agreement amongst Member States and the Commission that an Article allowing for derogations "justified by reasons relating to the size of the aircraft, or by reasons relating to the nature, scale or frequency of operations or of other relevant activities" will provide a sufficient basis for implementing legislation on any exemptions required. We are content with this;

    —  on mail, some Member States where a high proportion of mail is carried by air have argued for the retention of current exemptions from security controls for intra Community mail. The Commission is sympathetic, but we would prefer to see the Community adopting the UK practice of screening all mail above a certain weight and thickness, especially if it is carried on passenger flights. In any case, we see the matter as one for implementing legislation rather than this framework regulation. We shall be arguing thus in the further development of the draft.

  The European Parliament has responded positively to the proposal, accepting the security arguments for transferring much of the detail to the implementing legislation, which is subject to comitology rather than codecision. Most of the amendments they have so far put forward are in line with those suggested by the Council Working Group, and two of the exceptions—an obligation to involve stakeholders in any amendment process, and the continuance of the requirement for the Commission to produce an annual report—would cause us no difficulty.

  The Parliament has also raised the issue of the funding of aviation security measures. MEPs have expressed an interest in seeing Member States obilged to fund any measures they require which are above those set out in the legislation ("more stringent measures"). This would be counter to the UK's long-established "user pays" approach and may not be legally possible within the constraints of the Regulation. A Commission Communication on the funding of transport security is expected at Easter.

  The Economic and Social Committee's (ESC) study group on civil aviation security has also expressed general support for the text, while raising a small number of issues, such as provisions for disabled passengers, which may not be judged appropriate for a framework regulation on security. It too has voiced support for some state funding.

  I hope that you find this additional information helpful. I will, of course, write again when the outcome of the European Parliament's First Reading is known.

27 March 2006

Letter from the Chairman to Derek Twigg MP

  Thank you for your letter of 27 March 2006, replying to my letter to Karen Buck of 25 January 2006. Sub-Committee B considered your letter at its meeting on 24 April 2006.

  We are grateful to you for your full account of the negotiations on the proposed Regulation. We are pleased that much progress appears to have been made, although concerned at the continued presence of "more stringent measures" in Article 5 despite the ongoing opposition from Member States including the UK. We will maintain scrutiny on the proposal, and review this after your report on the First Reading in the European Parliament. Can you further explain your view that the European Parliament's approach to funding "might not be legally possible"?

  Furthermore, you mention a Commission Communication "expected at Easter"; can you inform us whether this has been produced?

25 April 2006

Letter from Gillian Merron MP, Parliamentary Under Secretary of State, Department for Transport to the Chairman

  Thank you for your letter of 25 April to Derek Twigg in respect of Explanatory Memorandum (EM) 12588/05. I am responding to the queries you raised regarding security funding and more stringent measures.

  When he wrote to you on 27 March, Derek Twigg noted that it might not be legally possible to include stipulations on funding in a European Regulation. This view was based on opinions expressed by the Commission during the negotiations on the current aviation security Regulation, 2320/02, and also on the fact that, as far as we are aware, no precedent exists for imposing such a requirement on Member States. We are presently consulting further on the issue.

  The publication of the Commission's Communication on funding—initially set for last December, then for Easter—has been further delayed, apparently to allow for the completion of a costs analysis. The Communication is now promised for the summer, but this also may prove optimistic.

  As regards the more stringent measures issue, you will wish to be aware that the European Parliament's Transport and Tourism Committee has voted against a proposed amendment, put forward by a UK MEP, which would have removed the text limiting Member States' freedom to act in this area without Community approval. My officials will provide more detailed briefing for MEPs ahead of the plenary vote, once we have received further legal advice, and will again stress the fundamental importance of this issue for the UK.

  I hope that you find this helpful. I will write again after the European Parliament has held its First Reading on the proposal, now scheduled for mid June, and will include any new information about the funding Communication and the wider financing question.

31 May 2006

Letter from the Chairman to Gillian Merron MP

  Thank you for your letter of 31 May 2006, replying to my letter to Derek Twigg of 25 April. Sub-Committee B considered your letter at its meeting on 12 June 2006.

  We would welcome an update from you following the First Reading in the European Parliament, which you expect in the middle of June. We would also be grateful to hear of the Government's final view on the legality of the stipulations on funding and on the issue of "more stringent measures", when it has been formed. We will maintain scrutiny on this proposal.

15 June 2006

Letter from Gillian Merron MP to the Chairman

  Thank you for your letter of 15 June regarding the proposed EC Regulation on civil aviation security. I am writing in response to the specific queries you raised on funding and more stringent measures and also to provide you with an update on progress following the European Parliament's First Reading earlier this month. There has been no further news on the Commission's Communication on funding, which is still expected before the summer recess.

  The First Reading took place on 15 June, with MEPs voting to accept all the amendments agreed by the Transport and Tourism Committee, the majority of which the UK can also support. The amendments do however include the funding provision, requiring Member States to finance themselves any measures they elect to implement which are above the baseline set out in the EU legislation.

  As you are aware, the government's initial reaction to the Parliament's suggested amendments on funding was to doubt that such requirements could, legally, be incorporated in a technical Regulation. This was also the initial view of the European Commission. Further investigation has, however, revealed that this is incorrect and the Commission has now informed Member States that precedents already exist.

  This finding does not, of course, alter the fact that the Commission and a number of Member States, including the UK, remain very much opposed to the inclusion of any measures on funding in the proposed Regulation. In an effort to convince the Parliament, we are preparing additional briefing material and are also seeking support from industry representatives. We believe that there are solid practical reasons for maintaining the "user pays" system—not least the considerable difficulties involved for industry in costing more stringent measures and for Member States in evaluating the calculations, along with the closely related issue of possible illegal state aids payments.

  We will also be alerting MEPs to the very real risk of losing the proposal altogether if the amendments on funding remain, through a negative Council vote. Many measures designed to better protect the travelling public would then be forfeit.

  As regards more stringent measures, we do not anticipate the same degree of divergence between our views and those of the Parliament. This is despite the fact that the First Reading vote rejected an amendment put forward by a UK MEP which would have restored the status quo, allowing Member States the continued freedom to introduce requirements over and above those set out in the Regulation. MEPs—and the rapporteur from the Transport and Tourism Committee—have generally made far fewer pronouncements on this issue and, where opinions are held, they are more divergent. We have hopes of a satisfactory resolution in the conciliation process, if not before.

  I will turn now to the small number of other amendments proposed by the Parliament which we could not support. These relate to:

    —  the involvement of the European Aviation Safety Agency (EASA) in aviation security—EASA is a relatively newly-established body and is not yet fully able to meet the demands of its safety remit. No case has been made for the extension of that remit to include security issues, which are dealt with separately by most Member States;

    —  a greater role for the Commission in approving Member States' decisions on derogations—Member States have the relevant local knowledge and may well have valid reasons for wishing to restrict circulation of the reasons behind such decisions (eg intelligence); and

    —  over-generous exemptions for mail—the existing legislation includes relatively generous exemptions for mail which some MEPS would like to see continued, contending that any additional measures would have a detrimental effect on postal deliveries. We do not support this view and believe on the contrary that controls should be tightened. The more stringent controls already in place in the UK have had no negative impact on the service. Retaining the exemptions is also likely to distort competition between postal agencies and other sectors of the industry.

  The Commission itself does not support the first two of these proposals but appears equivocal about (and inclined to support) the third.

  Generally, I do have to say that we are concerned by the apparent confusion in the Parliament between safety and security issues. This has led to an apparent lack of appreciation of the sensitive nature of security (meaning counter terrorism) matters and the need to restrict access to information, as well as proposals to include measures which have nothing to do with security. To give some examples:

    —  MEPs are seeking a greater role for the Parliament in approving implementing legislation and greater public access to issues discussed by the Regulatory Committee constituted under the framework legislation; and

    —  MEPs support a proposal to include provisions for dealing with passengers whose behaviour is "abnormal".

  Further briefing to point out the fundamental distinction between safety and security may be required.

  As regards Gibraltar, a subject of previous correspondence with your Committee, MEPs are now opposing amendments which would maintain the current position, which is that Gibraltar is not covered by the legislation, but is anyway protected in accordance with stricter UK requirements. This does not in itself present us with any problems, but might jeopardise the delicate tripartite negotiations currently being conducted between the Spanish, the Gibraltarians and ourselves.

  It is not expected that the Commission will issue an amended proposal; however I attach a paper issued by the Commission, giving further details of MEPs' views and the Commission's response (not printed). I hope that you find this, and the information I have provided above, helpful. If any further relevant information comes to hand in the near future, I will ensure that it is passed on to you as quickly as possible.

12 July 2006

Letter from the Chairman to Gillian Merron MP

  Thank you for your letter of 12 July, replying to my letter of 15 June. Sub-Committee B considered your letter at its meeting on 24 July.

  We are grateful to you for your update. The Committee shares your clearly expressed concerns over the apparent confusion between the concepts of security and safety in the debates over this Regulation, and the potential for harmful consequences to the UK's civil aviation security should it become law as amended. We would be grateful to you for a further update when negotiations have progressed and for your views on how each of the individual concerns you set out over the other proposed amendments has been addressed.

  We will continue to hold this proposal under scrutiny.

25 July 2006



21   Correspondence with Ministers 45th Report of Session 2005-06, HL Paper 243, pp 93-95. Back


 
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