Much of the uncertainty around a no-deal Brexit and transport relates to the impact it may have on the continuity of air travel and on road haulage and delays at UK ports. The Government believes a no-deal scenario could be managed in an “orderly” fashion and on 23 August 2018 the Department for Exiting the EU began to publish ‘technical notices’ on how to prepare for Brexit if there is ‘no deal’.526 The European Commission has also provided clarification on transport ‘no deal’ planning, including emergency measures to allow time-limited continuity for air transport and road haulage. However, significant uncertainty remains about the short-term impact of ‘no deal’ on some transport sectors.
On flights between the EU27 and the UK in the event of ‘no deal’, UK and EU licensed airlines would “lose the automatic right to operate air services between the UK and the EU without seeking advance permission.”527 The Government’s technical notice on air travel goes on to state that in this scenario the UK envisages granting permission to EU airlines to continue to operate and would “expect EU countries to reciprocate in turn”. It adds that:
In order to ensure permissions were granted and flights continued, the UK’s preference would be to agree a basic arrangement or understanding on a multilateral basis between the UK and the EU.528
The European Commission has since adopted emergency measures for air transport that will avoid full interruption of air traffic between the EU and the UK in the event of ‘no deal’. Specifically, the Commission has proposed a regulation to ensure temporarily, for 12 months, the provision of certain air services between the UK and the EU. This is subject “to the United Kingdom conferring equivalent rights to air carriers from the Union, as well as to the United Kingdom ensuring conditions of fair competition”.529
The Secretary of State welcomed the Commission’s proposal on air travel530 and Baroness Sugg recently said the Government was looking forward to “engaging with the Commission and other Member States on the detail of the proposed EU legislative measures to ensure that they deliver the continuity of services that both the EU and the UK want to see”.531 Provided the details can be worked through ahead of the Brexit deadline, it is
526 DExEU, UK government’s preparations for a ‘no deal’ scenario, 23 August 2018
527 DfT, Flights to and from the UK if there’s no Brexit deal, 24 September 2018
528 Ibid.; at the AOA conference in October 2018 Mr Grayling stated that one cause of disruption to flights could be EASA refusing or delaying the certification of UK-certified planes [“UK-EU Flight Disruption ‘Theoretically Possible’ in the Event of a No-Deal Brexit, Admits Chris Grayling”, The Independent, 29 October 2018]
529 European Commission, COM(2018) 890 final, 19 December 2018
530 DfT press notice, Department of Transport responds to European Commission contingency action plan, 19 December 2018
531 Aviation: Written question – HL12722, 21 January 2019
Full details on transport policy and Brexit, including what a longer term UK-EU partnership might look like, can be found in HC Library briefing paper CBP 7633
therefore unlikely that there would be a widespread disruption of these flights to and from EU27 countries in the short-term. While the International Air Transport Association also recently said that most flights would continue under a ‘no deal’ scenario, it could “could lead to a cap on flights that will stunt important economic opportunities and may lead to higher prices for consumers”. This is because the proposed guidance from the EU Commission in the event of ‘no deal’ calls for the current level of flights between the UK and the EU to be maintained but does not allow for an increase in flight numbers in 2019 compared to 2018.
On flights to and from the rest of the world, there is also unlikely to be significant disruption in a ‘no deal’ scenario. This is because the UK already has bilateral Air Services Agreements with 111 countries, including China, India and Brazil. For these countries, there will be no change under a ‘no deal’ scenario. For airlines from one of the 17 non-EU countries with whom air services to the UK are currently provided for by virtue of the UK’s membership of the EU, replacement arrangements are likely to be in place before Exit Day. The technical notice states that the UK “has already agreed a number of these agreements and is confident the remaining agreements will be agreed well in advance of the UK leaving the EU”.533 The UK negotiated new air service agreements with Canada and the United States in November 2018.
On air traffic management, the technical notice states that the UK would no longer be able to directly participate in the EU’s Single European Sky initiative, but that the UK “would continue to work through EUROCONTROL to ensure the safe and efficient management of airspace across its 41 members. The UK will continue to lead the way in providing safe and efficient air traffic control services”.534
The Government’s technical notice on aviation security states that if the UK leaves the EU in March 2019 with no agreement in place on aviation security, the existing regulations and procedures will be retained in domestic law under the EUW Act. It states that:
Given this, and the higher standards of aviation already in place in the UK, there is no reason for the UK’s aviation security regime not to be recognised by the EU as equivalent, which would mean no additional security restrictions would need to be imposed by either the EU or the UK. However, if the EU does not recognise the UK’s standards, there would be a number of possible implications for passengers and cargo.535
These could include passenger and baggage rescreening at EU airports for UK passengers catching an onward flight. The European Commission has
532 IATA press notice, Statement: Current Flights Protected, but Future Growth at Risk from No Deal Brexit, 15 January 2019
533 DfT, Flights to and from the UK if there’s no Brexit deal, 24 September 2018
534 Ibid. Eurocontrol was created via an international convention in 1960. It is an intergovernmental organisation with 41 Member and 2 Comprehensive Agreement States. The aim behind the creation of Eurocontrol was to have an organisation that would be entirely responsible for upper airspace in Europe. Its primary objective is the development of a pan-European air traffic management system.
535 DfT, Aviation security if there’s no Brexit deal, 24 September 2018
“indicated that they will not recognise the UK aviation security system”, with potentially “significant operational and cost implications for … EU airports, and passengers may have to factor increased time for rescreening into their travel schedule”.
With respect to cargo, the Commission has set out that, in the absence of any agreement, the default regulatory position will require carriers to hold ACC3 designations537 from an EU Member State in order to transport cargo from the UK into the EU. The technical notice states that the EU “has not yet provided details of how carriers should apply for an ACC3 designation”. The technical notice states that an outcome where the EU does not immediately recognise UK security standards as equivalent (given standards are higher than in the EU) would “have significant implications for the EU air cargo industry, their supply chains, and the consumers of the products to be shipped” and that the UK therefore expects that its recognition of EU security standards “will be reciprocated in turn by the EU”.538
The Government’s technical notice on aviation safety states that in the event of ‘no deal’, the functions currently performed by the European Aviation Safety Agency (EASA) in relation to approvals for UK designed aeronautical products and approvals for third country organisations would be conferred on the Civil Aviation Authority (CAA).539 This position was also made clear in European Commission Notice to Stakeholders.
The CAA has set up a microsite, explaining in more detail what would happen in the event of ‘no deal’, including information on several aspects of aviation safety:
1 Aerospace design organisations;
2 Aerospace maintenance organisations;
3 Aerospace production organisations;
4 Air Navigation Service Providers;
5 Airlines and AOC holders;
7 Approved Training Organisations;
8 Cabin crew;
9 Commercial pilots;
10 Continued Airworthiness Management Organisations;
11 Declared entities;
13 Engineering training organisations;
537 Air Cargo or Mail Carrier operating into the Union from a Third Country Airport
538 DfT, Aviation security if there’s no Brexit deal, 24 September 2018
539 Ibid.; the Civil Aviation Act 1982 (Amendment) (EU Exit) Regulations 2018 (see section 6.7, above) prepare for this contingency.
14 Flight training examiners;
15 Licensed engineers;
16 Private pilots; and
17 UK-registered aircraft: qualified owners
The CAA has also published a short paper explaining what a ‘no deal’ means for aviation safety regulation. One issue it deals with is that of commercial pilots.540 The CAA states that for most UK-registered commercial pilots, there would be little impact from ‘no deal’ as a consequence of global aviation rules.541 Pilots with UK licences who want to fly EU-registered aircraft post-Brexit would need to transfer their licence to another EASA member state before Brexit, or seek a second licence. If pilots currently hold a commercial licence from another EASA member state, they would need to seek validation from the CAA to operate UK-registered aircraft if they want to fly outside the UK. The CAA states that it “is currently developing processes to make this as seamless as possible”.542
UK airlines, aircraft manufacturers and other members of the aviation industry are now able to register with EASA as a ‘third country’, in preparation for a ‘no deal’.543
As mentioned, the European Commission has adopted emergency measures for air transport that will avoid full interruption of air traffic between the EU and the UK in the event of ‘no deal’. With respect to safety, the Commission has proposed a regulation to extend temporarily, for 9 months, the validity of certain aviation safety licences. This is subject “to the United Kingdom conferring equivalent rights to air carriers from the Union, as well as to the United Kingdom ensuring conditions of fair competition.”544 The Secretary of State welcomed the Commission’s proposal.545
On 12 October the Department for Transport published two technical notices on rail transport and rail safety and standards. The possible impact of a ‘no deal’ Brexit is likely to be less significant than that on other sectors, as most of the rail services operating in the UK are entirely domestic.
The principal operational considerations for the rail industry of a ‘no deal’ Brexit scenario relate to the cross-border passenger services and freight movements between the UK and France, Belgium, the Netherlands and Ireland. The Government said in its technical notice that it was seeking
540 Following some concerns from the CAA about how the issue had been reported by the media, see, e.g. CAA press notice, “CAA statement on Sky News aviation and Brexit story”, 11 September 2018.
541 Under the International Civil Aviation Organization (ICAO)
542 CAA, The CAA’s guide to Brexit No Deal & Aviation Safety, CAP 1714, 24 September 2018, pp5-6
543 EASA, Brexit [updated 2 October 2018]
544 European Commission, COM(2018) 890 final, 19 December 2018
545 DfT press notice, Department of Transport responds to European Commission contingency action plan, 19 December 2018
“bilateral arrangements with these countries…to facilitate the continued smooth functioning of cross-border rail services.”
The other main concerns from a ‘no deal’ Brexit for rail relate to the implications on licensing arrangements. On operator licensing, the Government proposed recognising operator licences in the UK that have been issued by another EU country for 2 years following exit day in a ‘no deal’ scenario. At this point an operator wishing to run services in the UK would need to apply to the Office of Rail and Road (ORR) for UK documentation. The Government added that because of the alignment with EU law in this area, “this would have a minimal impact on business and we would work with the ORR to ensure the application process is reasonable and proportionate.”547
However, the European Commission issued a notice to stakeholders in July 2018 indicating that, in the event of ‘no deal’, certificates and licences issued by ORR to operators currently running train services in the EU would not be valid. This would result in operators who run cross-border services and/or operate in both the UK and one or more EU countries being required to have relevant documentation issued by both the ORR and an EU licensing authority.
On train driver licences, the notice states that train drivers in the UK using licences and certificates issued in an EU27 country would also be able to continue using this documentation for up to two years from Exit Day or until they expire, whichever is earlier. They would then need to obtain a GB licence from the ORR. Anyone currently driving trains in an EU27 country on an ORR licence would need to obtain a new EU27 licence and certification documents from the national safety authority of the country they wish to drive into.548
On membership of the EU Agency for Railways (EUAR) and technical standards, the Government affirmed its intention not to seek membership of EUAR but only to disapply technical standards where there are clear benefits:
The technical specifications for interoperability and the safety regime have been developed by the EU Agency for Railways (EUAR) in conjunction with EU countries and stakeholders. As new rules and standards are developed by the EU after exit, as a third country, the UK will have the flexibility to align with or diverge from these as it wishes. We will only diverge where there are clear arguments for doing so and after fully engaging with industry to assess the impact – particularly the commercial and cost impact to industry.
To enable this flexibility, we do not intend to seek formal participation in the European Union Agency for Railways (EUAR) if there’s no deal. However, we encourage UK industry to participate with EUAR at technical and working level.549
546 DfT, Rail transport if there’s no Brexit deal, 12 October 2018
548 DfT, Meeting rail safety and standards if there’s no Brexit deal, 12 October 2018
549 DfT, ibid
13.3 Roads and vehicles
On driving in the EU27 in the event of ‘no deal’, the relevant technical notice states that a driving licence may no longer be valid by itself when driving in the EU and that anyone moving to an EU27 country to live may not be able to exchange their licence after the UK has left the EU.550
Drivers may be required to obtain an International Driving Permit (IDP) to drive in the EU27, which they would need to carry with a driving licence when driving outside the UK. DfT explains that there are two types of IDP:
There are 2 types of IDP required by EU countries. Each is governed by a separate United Nations convention.
One type is governed by the 1949 Geneva Convention on Road Traffic.
The other type is governed by the 1968 Vienna Convention on Road Traffic.
The version of the IDP you would require depends on which EU country you are visiting and whether it is party to the 1949 or the 1968 convention.
Each type of IDP is valid for a different period.551
It cautions that drivers would need both types of IDP if they are visiting EU countries covered by different conventions, for example France and Spain.552
The Government states that after Exit Day on 29 March 2019 (postponed to 31 January 2020, with a transitional period to effective withdrawal on 31 December 2020), arrangements for EU27 licence holders who are visiting or living in the UK would not change.553
On commercial road haulage in the event of ‘no deal’, the relevant technical notice reiterated much of the Government’s position as stated throughout the Haulage Permits and Trailer Registration Act 2018 (see HC Library briefing paper CBP 8297). It stated that EU27 countries may choose to recognise UK-issued operator licences and associated authorisations as they are based on the same standards as EU Community Licences and do not require further authorisations. The notice is clear that this cannot be guaranteed and adds that:
If they do not, UK hauliers will be able to use European Conference of Ministers of Transport (ECMT) permits if there is no deal. In addition, some old bilateral agreements between the UK and specific EU27 countries may come back into force. The UK would also seek to put in place new bilateral agreements with EU countries to provide haulage access. Some of these bilateral agreements would also require the possession of a permit to allow access to the EU country concerned.
ECMT permits will be available to enable journeys to the EU, but these are limited in number. The process for managing the issue of permits is set out in the 2018 Act.554 The Freight Transport Association, in evidence to the
550 DfT, Driving in the EU if there’s no Brexit deal, 13 September 2018
554 DfT, Commercial road haulage in the EU if there’s no Brexit deal, 24 September 2018
Lords EU Internal Market Sub-Committee in September 2018, raised concerns about the viability of such a permit system:
ECMT permits come with strict quotas that can only be raised if the 43 participating countries unanimously agree. The quotas for 2019 are already set and OECD countries do not intend to increase them for the following years. ECMT permits would cover 2% to 5% of transport needs and would only allow 1 224 UK haulage companies to operate in the EU. Similar restrictions would be faced by EU hauliers willing to operate in the UK. This would not only decimate the UK international haulage industry, it would also affect all sectors of the economy that rely on international just-in-time supply chains.555
The European Commission announced on 19 December 2018 that it had adopted a regulatory proposal to allow UK road haulage operators to temporarily, for a period of 9 months after the UK’s scheduled withdrawal date from the EU on 29 March, carry goods into the EU “provided the United Kingdom confers equivalent rights to Union road haulage operators and subject to conditions ensuring fair competition.” In response, the UK Government said that “the UK stands ready in principle to consider taking reciprocal steps for EU hauliers coming here.”556
On the Certificate of Professional Competence (CPC) for HGV drivers in the event of ‘no deal’, the technical notice states that the UK will maintain a CPC scheme and recognise EU27-issued CPC documentation.557 However, there is no guarantee of any recognition for UK-issued CPCs in EU27 countries. The technical notice states that:
UK drivers will be able to operate in the EU when driving trucks covered by an ECMT permit, or any existing, reinstated or new bilateral arrangements without the need of an additional qualification. However, to drive for EU operators, drivers holding a UK-issued CPC would also need to hold a CPC issued by an EU country.558
On bus and coach services in the event of ‘no deal’, the relevant technical notice states that UK bus and coach operators could no longer rely on automatic recognition by the EU27 of UK-issued Community Licences.559 It affirms the Government’s intention to accede to the Interbus Agreement in its own right by Exit Day “or as soon as possible thereafter should this prove necessary”.560 This “would enable UK operators to run occasional services into the EU. It cannot be guaranteed at this stage that the agreement would be extended to cover regular services”.561
On vehicle type approval in the event of ‘no deal’, the relevant technical notice states that type-approvals issued in the UK would no longer be valid for sales or registrations on the EU27 market and EU27 type-approvals would no longer be automatically accepted on the UK market. This means
555 Lords EU IMSC, Written Evidence – Freight Transport Association (TRA0017), September 2018, para 9
556 DfT press notice, Department of Transport responds to European Commission contingency action plan, 19 December 2018
557 DfT, Commercial road haulage in the EU if there’s no Brexit deal, 24 September 2018
559 DfT, Operating bus or coach services abroad if there’s no Brexit deal, 24 September 2018
that affected manufacturers would need to ensure that they have the correct type-approval for each market. It confirms that the UK will continue to recognise UN-ECE approvals for systems and components.
Finally, on vehicle insurance in the event of ‘no deal’, the relevant technical notice states that access to the Green Card-free circulation area would cease.563 This would mean that UK motorists would need to carry a Green Card as proof of third-party motor insurance cover when driving in the EU27, EEA, Andorra, Serbia and Switzerland.564 The converse would be true for EEA motorists wishing to travel to the UK with their vehicle.565 It goes on:
The validity of UK Green Cards in these countries is subject to agreements that need to be reached between the UK’s Motor Insurers’ Bureau and the relevant National Insurers’ Bureaux. These agreements ensure Green Cards are recognised and facilitate the settlement of claims for traffic accident victims.566
The main concerns for ports are the impacts of changes to customs, border and immigration processes in the event of ‘no deal’ and the knock-on impacts for inland transport of goods.
This concern is heightened for the Port of Dover, which handles up 17% of the UK’s total trade in goods, has more international lorries than all other UK ports combined and has the shortest sea crossing to Europe.567
In the event of a ‘no deal’ scenario, full third country controls on people and goods entering the UK from the EU and vice versa may be applied; although the Government has said that it “wants to work closely with Member States to introduce pragmatic arrangements to ensure the continued full flow of goods which would be to their benefit as well as ours.” According to the NAO:
…it could take up to three years to put new infrastructure in place because ports, airports and other border crossing point operators, which are responsible for funding infrastructure to deliver the border compliance regime, will need certainty about how the border will operate so that they can access the necessary finance and comply with local and national planning processes.
The additional controls on people and goods at the border could cause significant delays and have knock on effects to wider parts of the motor network. Imperial College London completed research into the impact of customs delays on the M20/A20 motorway in Kent. They found that two extra minutes spent on each vehicle at the border could more than triple the existing queues on the M20/A20, to 29 miles. At peak times, Kent could see nearly five hours of traffic delays.
562 DfT, Vehicle type approval if there’s no Brexit deal, 13 September 2018
563 The Green Card is an international certificate of insurance providing visiting motorists the minimum compulsory insurance cover required by the law of the country visited.
564 DfT, Vehicle insurance if there’s no Brexit deal, 24 September 2018
567 Port of Dover, It’s all Dover for boxed-in container ports, 11 October 2018
Managing traffic flow from the Port of Dover: Operation Brock
The DfT identified that a temporary solution was needed on the M20 near Dover to manage traffic flow as a contingency to mitigate the risk of cross-channel disruption including any that may be caused by new border arrangements following the UK’s exit from the EU. It is calling this work ‘Operation Brock’ (formerly ‘Project Brock’). The NAO explained in its July 2018 report:
The project aims to hold coast-bound lorries on the M20 while allowing non-port traffic to continue to move in both directions. Given the need to be ready by March 2019, the project is required to deliver at pace. It is sponsored by the Department and to be delivered by Highways England.
The details were summarised by Chris Grayling in October 2018:
Operation Brock consists of three phases, a contraflow queuing system on the M20, a holding area at Manston Airport and, if necessary, a holding area on the M26. The Department is working closely with the Kent Resilience Form, the Port of Dover, Eurotunnel and other associated bodies. The contraflow queuing system on the M20 will cost about £30 million to build and operate and would be used for all disruption events including those seen in 2015. The works required for the M26 are within the region of £5 million
The NAO stated that in March 2018 the DfT approved a preferred option for the work and formally delegated responsibility for the project’s delivery, including approval of the business case, to Highways England. Highways England awarded a contract on 11 May 2018, with a view that preparatory engineering and operational plans would be developed in parallel and work would begin in early July 2018.
In an October 2018 letter to the Chair of the Public Accounts Committee Bernadette Kelly said that the deployment of Operation Brock had “progressed… and is nearing completion”. She stated that “infrastructure work… is underway on the M20 between junctions 8 & 9. The project remains on track to be complete by March 2019”. Ms Kelly later told the Committee in oral evidence that DfT is spending “around £30 million to £35 million… on the infrastructure, principally for Operation Brock”.
The Government organised a practice-run in January 2019 of Operation Brock, which saw lorries congregate at Manston Airport near Ramsgate and travel to Dover. The DfT anticipated that up to 150 trucks would be involved, but 89 participated at the disused airfield which has a capacity of just under 4,000.
As part of its contingency planning, the Government announced in December 2018 that it had entered into three contracts totalling £103 million with ferry operators to provide additional ferry capacity and services into the UK. Two contracts went to established operators, Brittany Ferries (£46.6 million) and DFDS (£42.6 million). The third contract was awarded to Seaborne Freight (£13.8 million), a new operator to provide a new service between Ramsgate and Ostend. This capacity will be used “for critical goods such as medical supplies in the event of disruption to cross-Channel crossings”568
Ordinarily, public procurement follows a competitive tender process. However, in awarding £103m-worth of contracts, the DfT relied on an emergency exemption provided for by the Public Contract Regulations Act, which states public tender can be avoided. Questions have since been raised by Chair of the Transport Select Committee Lilian Greenwood as to why the Government
568 DfT, Haulage update: Written Statement to Parliament, 7 January 2019
awarded the contracts using the emergency exemptions and whether Seaborne freight were suitably qualified to deliver the services.
The Government also recently announced further contingency arrangements to mitigate the impact of a ‘no deal’ Brexit on roll on roll off locations like Dover or the Channel Tunnel. Currently, under import processes for trading with the rest of the world, goods are not released from customs control until you make a full import declaration and pay the duty owed in full. New Government guidance for importers and hauliers now means that they would be able to file a simplified form online in advance and pay duty later. These “transitional simplified procedures” are aimed at reducing possible delays at the border from the revised custom arrangements under a ‘no deal’ Brexit.
On 13 September the Department for Transport published two technical notices on maritime transport, covering maritime security notifications and seafarer certificates of competency.
On maritime security notifications, the relevant paper explains that under Article 6 of EC Regulation 725/2004, shipping companies (including ferries carrying passengers and lorries) are required to submit security information prior to entering an EU port. Sometimes this is referred to as a pre-arrival notification (PAN). Article 7 allows EU countries to issue exemptions from the requirement to provide this information to companies operating scheduled services between ports located in their territory, or between ports within their territory and that of another EU country.569
The DfT states that in the event of ‘no deal’ Article 7 exemptions would not be permitted from EU27 countries for vessels, irrespective of registration/flag, operating scheduled services from the UK.570 DfT advises shipping companies holding such an exemption to engage with EU27 countries to ensure they understand what information they would be required to provide and how it would be submitted. The UK intends to continue issuing exemptions for scheduled services from an EU27 country to a port in the UK, or between ports in the UK, after Brexit “regardless of the outcome of negotiations”.571
On seafarer certificates of competency, the relevant paper explains that at present, the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers (STCW) mandates that crew members carrying out certain duties must have a certificate of competency (COC). A COC must be renewed every five years. EU legislation has harmonised the way that EU countries apply the STCW requirements. This
569 DfT, Getting an exemption from maritime security notifications if there’s no Brexit deal, 13 September 2018
has led to two different procedures for recognising seafarers’ qualifications.
DfT states that in the event of ‘no deal’, endorsements issued before withdrawal by EU27 countries to seafarers holding UK COCs would continue to be valid until they expire. After exit, the rights and obligations placed on the UK as a signatory to the STCW convention would remain, including those for recognising certificates issued by third countries. Therefore, the UK Government’s intention is to:
- continue recognising all certificates that we currently recognise, including those issued by EU and EEA countries after exit
- seek third country recognition of UK certificates by the EU under the STCW convention573
It further explains that EU27 countries that wish to continue accepting new UK COCs would need to write to the European Commission, in accordance with the procedure in EC Directive 2008/106. They would then be able to recognise such certificates.
572 DfT, Recognition of seafarer certificates of competency if there’s no Brexit deal, 13 September 2018
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