CIVIL AVIATION SECURITY (12588/05)
Letter from the Chairman to Karen Buck
MP, Parliamentary Under Secretary of State for Transport, Department
Thank you for your letter of 20 December 2005
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
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
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;
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 derogationswhich
might be exploited by terroristsshould 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 exceptionsan
obligation to involve stakeholders in any amendment process, and
the continuance of the requirement for the Commission to produce
an annual reportwould 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
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 fundinginitially set for last December, then for Easterhas
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
31 May 2006
Letter from the Chairman to Gillian Merron
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
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
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" systemnot 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. MEPsand the rapporteur from
the Transport and Tourism Committeehave 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 securityEASA
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 derogationsMember
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 mailthe
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
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
We will continue to hold this proposal under
25 July 2006
21 Correspondence with Ministers 45th Report of Session
2005-06, HL Paper 243, pp 93-95. Back