The Aviation Law Review: United Kingdom
The United Kingdom has three constituent legal jurisdictions: England and Wales, Scotland, and Northern Ireland.2 However, civil aviation is regulated at national level. The UK government department responsible for civil aviation is the Department for Transport (DfT).3 The Secretary of State for Transport (SST), who heads that department, is charged by statute with the general duty of organising, carrying out and encouraging measures for the development of civil aviation; designing, developing and producing civil aircraft; promoting safety and efficiency in the use thereof; researching questions relating to air navigation; and organising, carrying out and encouraging measures for safeguarding the health of persons on board aircraft.4 The SST is also charged with carrying out specific duties in furtherance of the interests of air transport users regarding airport operation services.5 The SST is given a wide range of statutory powers in relation to the discharge of these duties.6
The principal regulator of civil aviation in the UK is the Civil Aviation Authority (CAA).7 It is a statutory body, with its constitution, functions and duties set by the Civil Aviation Acts of 1982 and 2012 as amended (CA Act 1982 and CA Act 2012 respectively).
The CAA has a wide remit. Its functions and duties embrace the licensing of air transport and the provision of accommodation in aircraft; the provision of air navigation services; the licensing and economic regulation of aerodromes; the registration of aircraft; the safety of air navigation and aircraft; the health of persons on board aircraft; the control of air traffic; the certification of aircraft operators; the licensing of air crew; and certain responsibilities concerning national security.8 The CAA is also designated as the UK body responsible for exercising a number of powers under EU regulations concerning civil aviation in areas falling within its responsibility. It is given a wide range of statutory powers in relation to the discharge of its duties.9
The CAA has the general objective that it must perform its functions in the manner that it considers best calculated to ensure that British airlines10 provide air transport services that satisfy all substantial categories of public demand11 at the lowest charges consistent with a high standard of safety in operating the services, an economic return to efficient operators on the sums invested in providing the services and securing the sound development of the UK's civil air transport industry. In addition, it aims to further the reasonable interests of users of air transport services.12
As a matter of UK law, an international treaty or convention does not have direct domestic effect. Accordingly, even when signed and ratified by the UK, an international treaty or convention will only have domestic legal effect when incorporated into UK law by statute, whether directly or indirectly.
The UK is party to the Chicago Convention on International Civil Aviation 1944.13 It is also party to the 'Two Freedoms' agreement of the same date.
The UK ceased to be a Member State of the European Union on 31 January 2020. However, it will continue to apply EU law as if it was a Member State until the end a transitional 'implementation period' which is currently due to end on 31 December 2020.14 It is thereby currently still subject to EU law. In particular, EU regulations continue to have direct application in the UK for the time being.
The law related to aviation in force in the UK is therefore currently to be found in UK statute, secondary legislation made pursuant to such statute (by way of statutory instrument or Order in Council), EU regulations and related jurisprudence of the Court of Justice of the European Union (CJEU), as well as the common (i.e., judge-made) law.
As and when the transitional implementation period ends,15 the then existing EU derived domestic legislation, EU regulations and related jurisprudence of the CJEU will continue to form part of the UK's law by reason of the European Union (Withdrawal) Act 2018 (as amended) unless, until or to the extent that the UK legislates to the contrary (but EU law created after that date will not do so). The UK has introduced a considerable volume of statutory instruments that amend UK legislation and amend or revoke extant EU Regulations in order to determine what is to be retained in UK law from the end of the implementation period, including many related to aviation.
The UK remains part of the 'single aviation market' for Community air carriers within the EU, as provided for by Regulation (EC) No. 1008/2008, until the end of its exit implementation period. Outside of this area, route access to and from the UK is via either a horizontal agreement made between the EU and the non-Member State or a bilateral air services agreement made between the UK and the state concerned.16 As and when the UK's exit from the EU is completed, all route access to and from the UK will be by bilateral air services agreements. The CAA has the task of determining the allocation of scarce capacity on any route that is the subject of any such air services agreement.17
The UK is also currently subject to EU law on such matters as state aid and slots.18 As to competition law, see Section VI.
The Cape Town Convention 2001 and associated Aircraft Protocol have force of law in the UK in the form of and as provided by the International Interests in Aircraft Equipment (Cape Town Convention) Regulations 2015.
Legal framework for liability
i International carriage
The UK is party to the Warsaw Convention 1929, Hague Protocol 1955, Montreal Additional Protocols (MAP) Nos. 1 to 4 of 1975, the Guadalajara Convention 1961 and the Montreal Convention 1999.
The Montreal Convention 1999 currently has force of law in the UK in respect of the liability of a 'Community air carrier'19 concerning passengers and their baggage by reason of Regulation (EC) No. 2027/97 (as amended),20 and in respect of any other carriage to which it applies by reason of Section 1 of the Carriage by Air Act 1961 as amended (1961 Act) and as Schedule 1B to that Act.21 The revised liability limits of the Montreal Convention set by ICAO, with effect from 30 December 2009, have been implemented in the UK.22 But the further revisions set with effect from 28 December 201923 are yet to be implemented.
Subject to specified defences, it is a criminal offence for a Community air carrier to fail to comply with the tariff requirement contained in Article 3a of Regulation (EC) No. 2027/97 or the notification provisions contained in its Article 6.24
It is a general rule of UK law that authorities on the Warsaw Convention 1929 are equally referable to the Montreal Convention 1999.25 Further, it is established that where either convention applies, it provides the exclusive causes of action and remedy.26
The Warsaw Convention 1929 as amended at The Hague 1955 (Warsaw-Hague) has force of law in the UK as set out in Schedule 1 to the 1961 Act, while the Warsaw-Hague Convention as further amended by MAP No. 4 has force of law as set out in Schedule 1A to the same Act. The Guadalajara Convention also continues to have force of law in relation to carriage governed by the latter two conventions.27
The 1961 Act provides that if more than one of the aforesaid conventions applies to a carriage by air then the most recent one has force of law.28
In relation to international carriage to which none of the aforesaid conventions apply, the Warsaw Convention 1929 as amended by MAP No. 1 and the Guadalajara Convention 1961 continue to have force of law as set out in Schedule 3 to the Carriage by Air (Applications of Provisions) Order 2004 (2004 Order), while the Warsaw and Guadalajara Conventions continue to have force of law as set out in Schedule 2 to that Order in relation to carriage, to which Schedule 3 does not apply.
The UK is not a party to the Rome Conventions of 1933 or 1952 on surface damage, nor to the Montreal Protocol of 1978 on that topic. Further, it has yet to even sign the Unlawful Interference Compensation Convention 2009 or the General Risk Convention 2009.
Liability for surface damage is, however, provided for in relation to all carriage (irrespective of whether it is international) by Section 76(2) of the CA Act 1982. It permits damages to be recovered on a strict liability basis for material loss or damage caused to any person or property on land or water by, or by a person in, or an article, animal or person falling from, an aircraft while in flight, take-off or landing (unless the loss or damage was caused, or was contributed to, by the negligence of the person by whom it was suffered); with that liability being upon the owner of an aircraft unless it has been bona fide demised, let or hired out for any period exceeding 14 days to any other person by its owner, and no pilot, commander, navigator or operative member of its crew is in the employment of the owner, in which event the liability is upon the person to whom the aircraft has been so demised, let or hired out.
ii Internal and other non-convention carriage
By reason of Regulation (EC) No. 2027/97, the liability of a Community air carrier in respect of all passengers and their baggage is governed by the Montreal Convention 1999 for the purposes of English law, regardless of whether the carriage is international or domestic (see Section II.i).29
Any other UK domestic carriage of persons, baggage or cargo performed by an aircraft for reward, or gratuitously by an air transport undertaking, is governed by Schedule 1 to the 2004 Order. This applies a slightly modified version of the Montreal Convention to such carriage. It has been held in relation to its predecessor (which made the same provision in relation to the Warsaw-Hague-MAP No. 4 Convention)30 that it applies when the place of departure, place of destination or an agreed stopping place is within the UK or other British territory.31
Where carriage by air falls outside the above provisions (such as gratuitous carriage by a private person) any liability of the carrier in respect of passengers, baggage or cargo will fall to be determined according to the common law – predominantly via the tort of negligence, or an express or implied contractual duty of reasonable skill and care. With regard to tortious liability there is persuasive authority that the maxim res ipsa loquitur applies in respect of an air crash against the owner or operator of the aircraft concerned, so as to impose a rebuttable presumption of liability in negligence.32
As to surface damage, see Section II.i.
iii General aviation regulation
The convention-based schemes (outlined in subsections i and ii) of liability in relation to 'aircraft' have been held to apply to helicopters33 and hot-air balloons,34 but not to a tandem heavier than air non-powered paraglider.35 Liability in respect of any means of carriage not by an 'aircraft' will fall to be determined according to the common law (i.e., the law of contract and/or tort, in particular, negligence).
As to surface damage, see Section II.i.
iv Passenger rights
Regulation (EC) No. 261/2004 (on denied boarding, cancellation or long delay) currently has direct effect in the UK (see the European Union chapter of this publication).36 Non-compliance with certain provisions of this regulation is a criminal offence.37 However, to date, no successful prosecutions have been recorded, although the CAA, which is the UK's national enforcement body for this regulation, has undertaken numerous compliance investigations and initiated enforcement proceedings against several air carriers at various times.
Regulation (EC) No. 1107/2006 (on rights of disabled persons and persons with reduced mobility when travelling by air) also currently has direct effect in the UK and is addressed in the 'European Union' chapter of this publication.38 Although a claim by a qualifying person may be made for any infringement of this Regulation, including for compensation for injury to feelings,39 no such damages are recoverable where the complaint falls within the scope of the Montreal Convention.40
Directive (EU) 2015/2302 has been given effect in the UK in the form of the Package Travel and Linked Travel Arrangements Regulations 2018.41 These give various rights to consumers in respect of any contract for carriage by air sold or offered for sale with other travel services so as to form a 'package' or 'linked travel arrangement'.42 They include information requirements, transferability of bookings, protection against price revision, alterations to essential terms and improper performance, rights of termination and to refund, and protection against insolvency. See further Section V.
The UK does not have any other domestic provisions dealing specifically with the rights of air passengers. The general UK statutory consumer protection law is, however, applicable, except where its application to contracts of carriage by air is expressly excluded.
v Other legislation
No person may make available in the UK accommodation for the carriage of persons on flights in any part of the world unless they are the operator of the relevant aircraft, the holder of an Air Travel Organiser's licence (ATOL) granted by the CAA, or are exempt or exempted from the need to hold an ATOL.43 Non-compliance with these restrictions is a criminal offence.44
The general provisions of UK law may also give rise to liability. However, no action lies in respect of trespass or nuisance by reason only of the flight of an aircraft over any property at a height above the ground, which, having regard to wind, weather and all the circumstances of the case, is reasonable, or the ordinary incidents of such flight, so long as the provisions of any Air Navigation Order and any orders under Section 62 of the CA Act 1982 have been duly complied with.45 For these purposes, 'flight' is not restricted to lateral travel from one fixed point to another, but rather embraces all movement that takes place between the take-off and landing of an aircraft.46
It is to be noted that the UK has stringent anti-bribery rules, as contained in the Bribery Act 2010. As to competition law, see Section VI. As to product liability law, see Section VIII.iii.
Licensing of operations
i Licensed activities
A person must not operate an aeroplane registered in the UK on a commercial air transport operation other than under and in accordance with the terms of an EU air operator certificate (AOC)47 granted to that person by the CAA.48
In order to be able to carry passengers, mail or cargo for remuneration or hire, that person will also need a valid operating licence granted by the CAA pursuant to Chapter II of Regulation (EC) No. 1008/2008.49 This requires, among other things, that its principal place of business is located in the UK (see further Section III.ii). It is dealt with substantively in the 'European Union' chapter of this publication.50
Although such a (UK) Community air carrier51 is currently entitled to operate intra-Community air services as of right as part of the single EU aviation market,52 it can only operate services to or from elsewhere if it holds a route licence granted by the CAA that authorises it to operate those flights53 (and subject to the availability of traffic rights under any relevant air services agreement with the destination state (see Section I). In practice, such a licence will allow any operations within the area permitted by the holder's AOC, although it may be subject to restrictions in specific circumstances.
A person without an applicable EU AOC must not operate a UK-registered aircraft for the purposes of any public transport54 flight other than under and in accordance with a national AOC granted to that person by the CAA.55 Further, any such other carriage for reward of passengers or cargo can only be performed if the operator holds and complies with the terms of an air transport licence granted by the CAA.56
ii Ownership rules
It is a requirement of an EU operating licence (see Section III.i) that Member States or nationals of Member States own more than 50 per cent of the undertaking to which it is granted and effectively control it, whether directly or indirectly through one or more intermediate undertakings (except as provided for in an agreement with a third country to which the EU is a party).57 This and other requirements of Regulation (EC) No. 1008/2008 for the licence holder are dealt with in the 'European Union' chapter.58
As mentioned in Section III.i, it is also a requirement of an EU operating licence that the applicant's principal place of business is in the issuing Member State (i.e., in the current context, the UK).59
A UK national AOC is not subject to any express statutory ownership rules. However, unless the SST otherwise consents, an air transport licence can only be granted to a UK national or a body that is incorporated under the law of a part of the UK or a relevant overseas territory, and is controlled by UK nationals.60
iii Foreign carriers
An aircraft registered elsewhere than in the UK must not take on board or discharge any passengers or cargo in the UK where valuable consideration is given or promised for their carriage, unless the operator or charterer of the aircraft, or the government of the country in which the aircraft is registered, has been granted permission to take on board or discharge any passengers or cargo for such purpose by the SST or the CAA, and any conditions to which such permission may be subject are satisfied; or the aircraft is flying pursuant to traffic rights conferred upon a Community air carrier as part of the single EU aviation market; or an AOC has been issued to the operator of the aircraft pursuant to the Air Navigation (Overseas Territories) Order 2013.61
The decision to grant such permission is normally made by the CAA, but it must take into account any advice given to it by the SST62 (including as to circumstances in which the SST expects to determine an application for permission).63
Safety and security
Regulation (EU) No. 2018/1139 on common rules in the field of civil aviation (the Basic EASA Regulation) and its implementing regulations64 currently have direct effect in the UK, with their application being acknowledged and enforced by the ANO. Together these regulate safety in relation to, among other things, airworthiness, flight crew licensing and training, and aircraft operation with regard to EASA aircraft.65 They are dealt with in the 'European Union' chapter of this publication.66 The corresponding national regulation in relation to non-EASA aircraft is provided for separately in the ANO. The CAA is the relevant UK regulator in both instances.
The ICAO Annex 13 civil aviation safety investigation authority for the UK is the Air Accidents Investigation Branch of the DfT (AAIB).67 Its functions, duties and powers are set by a combination of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 2018 and Regulation (EU) No. 996/2010 (EU Regulation 996).68 All air accidents and serious incidents occurring in or over the UK must be reported to it pursuant to these regulations.
A report of the AAIB is admissible in civil proceedings in England and Wales as evidence of the facts that it states and as expert evidence in relation to the opinion it gives where that is the product of a special expertise that its authors can be taken to or do have, but is not admissible for the opinion it expresses on facts that require no such expertise to evaluate.69 In contrast, information and evidence obtained or created in the course of its investigations cannot be disclosed by the AAIB to any other person for purposes other than safety investigation, unless the court orders it to do so upon satisfaction that the benefits of the disclosure for any other purpose permitted by law outweigh the adverse domestic and international impact that such action may have on that or any future safety investigation.70 Although a voice or flight data recorder may be ordered to be disclosed on this basis,71 it is almost inconceivable that an order would be made for the disclosure of a statement made to the AAIB in the course of its investigations.72
Regulation (EU) No. 376/2014 on the reporting, analysis and follow-up of occurrences in civil aviation currently has direct effect in the UK.73 The CAA is the competent UK authority for such mandatory occurrence reporting.
Regulation (EC) No. 785/2004 (as amended) currently has direct effect in the UK. It specifies minimum insurance requirements for all aircraft operators and air carriers flying within, into, out of or over the territory of an EU Member State in respect of liability for passengers, baggage and cargo, and third parties.74 The CAA is the designated UK authority for monitoring compliance with this regulation.
The Civil Aviation (Insurance) Regulations 2005 create sanctions for non-compliance with various provisions of Regulation (EC) No. 785/2004, including a number of criminal offences.75 They also specify the minimum level of passenger insurance for non-commercial operations by light aircraft.
The aviation sector is subject to the general provisions of UK competition law, the principal components of which are: in relation to anticompetitive behaviour and abuse of dominant position, Chapters I and II of the Competition Act 1998 (as amended) respectively, which reproduce Articles 101 and 102 of the Treaty on the Functioning of the European Union; and in relation to merger control, Part 3 of the Enterprise Act 2002 (as amended) and the EU Merger Regulation No. 139/2004.76 The UK's national competition authority for these purposes is the Competition and Markets Authority (CMA).77 Its powers and duties are set out in the aforementioned Acts as amended. Part 6 of the Enterprise Act 2002 imposes criminal liability upon individuals in relation to the making and implementation of cartel arrangements. As to state aid see Section I.
The CA Act 2012 makes specific provision for the regulation of the operators of 'dominant airports' and gives the CAA related duties and powers. These are concurrent with the CMA's duties and powers.78 The CAA also has competition powers in respect of air traffic services. The CAA has set out how it will apply its powers and duties in its Guidance on the Application of the CAA's Competition Powers.79
Regulation (EU) No. 2019/712 on safeguarding competition in air transport currently has direct effect in the UK80 and is addressed in the 'European Union' chapter of this publication.
In England and Wales,81 if death is caused by any wrongful act, neglect or default, then any action for damages against another person that the deceased could have brought (had his or her death not ensued) can be brought for the benefit of his or her dependants.82 The recoverable damages are for their loss of dependency on the deceased (calculated on a multiplicand/multiplier basis), for loss of the pecuniary value (including gratuitous services) that was or would have been provided by the deceased, as well as for funeral expenses.83 Any benefits that have accrued or will or may accrue to any person from the deceased's estate or otherwise as a result of his or her death are to be disregarded.84 Damages for bereavement are also recoverable, but only for the benefit of a limited class of persons85 and in a prescribed amount – currently £15,120.86 See Section VIII.i.
Establishing liability and settlement
Each of the UK's three legal jurisdictions has a separate court system, each with their own rules of procedure but subject to a common apex in the UK Supreme Court. There is also some variation between the substantive law in each jurisdiction, in terms of both applicable domestic statute and common law.
In each jurisdiction, civil proceedings may be commenced in one of two levels of court depending on the value and complexity of the claim: in England, in the High Court of Justice or county court; in Scotland, in the Outer House of the Court of Session or sheriff court; and in Northern Ireland, the High Court of Justice or county court. In all of these courts the determination is, in general, by judge alone.
There is currently no compulsory alternative dispute resolution scheme in force in the UK with regards to any class of aviation dispute, including in respect of claims against carriers by consumers.
The time limit for bringing a claim in the UK depends on the nature of the cause of action relied upon. In relation to convention-based liability an action must be brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.87 In England and Wales, the general law as to time is set out in the Limitation Act 1980 (as amended). It sets primary (but in certain circumstances displaceable) requirements that an action founded on tort, contract or to obtain any sum recoverable by virtue of any enactment, shall not be brought after the expiration of six years from the date on which the cause of action accrued,88 and that an action for personal injury or death shall not be brought after three years from the later of the date of accrual of the cause of action or of knowledge.89 A claim for fixed compensation under Regulation (EC) No. 261/2004 is subject to a six-year limitation period.90
Subject to the court having jurisdiction to entertain an action made against the defendant concerned,91 there is no artificial restriction upon who may be added as a defendant to any action (whether carrier, owner, pilot, manufacturer or otherwise).
In England and Wales, where the same damage is caused to a claimant by the default of two or more persons then each wrongdoer is liable for the whole damage, regardless of whether any other person is also held liable. The allocation of liability between wrongdoers may be the subject of contractual agreement (e.g., providing for guarantee or indemnity). Any person liable in respect of any damage suffered by another may also be entitled to recover a contribution from any other person liable in respect of the same damage via the Civil Liability (Contribution) Act 1978, in such amount 'as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question'.
ii Carriers' liability towards passengers and third parties
The nature of a carrier's liability will depend upon the cause of action concerned. It is strict in respect of convention liability,92 where the relevant conditions of liability contained in the convention are met, and for surface damage.93 Otherwise, liability will generally be fault-based. The person making a claim bears the burden of proof. The requisite standard of proof is the balance of probabilities.
Any convention liability will be subject to any applicable limit of liability contained therein.94 There is no artificial financial limit in respect of surface damage or for fault-based liability at common law.
iii Product liability
Directive 85/374/EEC (on liability for defective products) has been implemented into UK law by the Consumer Protection Act 1987 (CPA) as amended.95 It provides that (subject to the provisions of its Part I) the producer, any person who holds himself or herself as the producer, the importer and, if the supplier fails to state whom he or she bought the product from, the supplier, of a product is liable where any damage 'is caused wholly or partly by a defect in [the product concerned]'.96 For these purposes, a 'product' means 'any goods', including aircraft, and a product that is comprised in another product;97 there is a 'defect' if 'the safety of the product is not such as persons generally are entitled to expect';98 and 'damage' means 'death or personal injury or any loss of or damage to any property (including land)'.99 However, the CPA does not apply to:
- property that, at the time it is lost or damaged, is not 'of a description of property ordinarily intended for private use, occupation or consumption' and not 'intended by the person suffering the loss or damage mainly for his own private use, occupation or consumption';
- loss of or any damage to the product itself; or
- loss of or any damage to the whole or any part of any product that has been supplied with the product in question comprised in it.100
It, therefore, does not provide for liability in respect of damage to business property or pure economic loss, and does not require proof of fault. It is subject to specified defences, including state of the art.101
Aside from the CPA, there is no specific statutory scheme for product liability of relevance to the aviation sector.104 Outside the CPA's scope, product liability therefore falls to be determined according to the general common law of contract or tort (in particular, negligence).
An award of damages by UK courts is determined by a judge, rather than a jury. As a general rule, an award is limited to an amount equalling the loss actually suffered, and exemplary or punitive damages are not recoverable (and in the case of Montreal Convention-based liability they are expressly prohibited).105
In the case of personal injury, in England and Wales, general damages are recoverable for pain, suffering and loss of amenity. The amount awarded is usually set by reference to the Judicial College Guidelines and past case law. General damages may also be awarded for such things as handicap on the labour market and loss of congenial employment. In addition, special damages may be awarded for the pecuniary loss suffered for such things as loss of earnings and pension, medical or other expenses, cost of care and the cost of adaptive equipment. Future loss is calculated on a multiplicand/multiplier basis, with the multiplier set by reference to actuarial tables. As to compensation in cases of wrongful death, see Section VII.
The UK government provides a comprehensive system of social security benefits and a National Health Service (NHS), which is essentially free to users. There is statutory provision for the recovery from a tortfeasor of certain benefits and NHS charges by the Compensation Recovery Unit of the Department for Work and Pensions.106 Benefits paid by an agency of another EU Member State may also be recoverable.107
The CAA has regulatory responsibility for drones weighing less than 150kg.108 The safety regulations for these drones (referred to as 'unmanned aircraft' in the UK regulations) are set out within the Air Navigation Order.
On 11 June 2019, the European Commission introduced a package of regulations specific to the use of Unmanned Aircraft Systems (the European UAS Regulations) consisting of Commission Implementing Regulation 2019/947 of 24 May 2019 on the procedures and rules for the operation of unmanned aircraft (the Implementing Regulation) and Commission Delegated Regulation 2019/945 of 12 March 2019 on unmanned aircraft and on third country operators of unmanned aircraft systems (the Delegated Regulation). Both regulations entered into force on 1 July 2019, however, only the Delegated Regulation is applicable in the UK at the time of writing. The Implementing Regulation will not become applicable in the UK until 1 November 2020.109 The European UAS Regulations cover a broad scope, including provisions that address 'non-aviation safety' issues related to drones such as privacy and security, as well as aviation safety regulations for drones.110
Until the European Implementing Regulation is applicable, the national regulations of the UK must be followed. The current UK regulations for drones are set out below.
Drone operations in the UK must be approved by way of a special permission from the CAA, except where a 'small unmanned aircraft'111 is operated for recreational purposes and in accordance with particular operating conditions.112 Those operating conditions include: (1) that a person does not cause any article or animal to be dropped from the drone so as to endanger person or property; (2) that the remote pilot is reasonably satisfied that the flight can be safely made; (3) that the remote pilot maintains direct, unaided visual contact with the drone sufficient to monitor its flight path in relation to other objects, property or persons; (4) that the operations will be conducted at a height of no more than 400 feet above the surface; and (5) that the flight does not enter a flight restriction zone of a protected aerodrome.113 Additional operating requirements apply to drones fitted with surveillance equipment.114
In 2019, the CAA extended the flight restriction zone at and around protected aerodromes, within which flights by small unmanned aircraft must not take place without permission from the relevant air traffic control unit, flight information service unit or airport operator.115 The regulations place responsibility on both the drone operator and the remote pilot to ensure that a drone is not operated within a flight restriction zone.116
Anyone responsible for a drone weighing between 250 grams and 20 kilograms must register as an operator with the CAA, upon which they will be issued with an operator's registration number which must be displayed on the drone. Operators of drones that fall within this weight category must also pass an online test prior to commencing operations.117 Remote pilots flying a drone who hold a current CAA permission or exemption from drone operations, such as a permission related to commercial operations, are exempt from having to undertake the online test. This registration system was introduced in November 2019 and was developed to align with the requirements set out by EASA for the proposed future EU drone registration system.
The UK has a Confidential Human Factors Incident Reporting Programme (CHIRP), which is run by a charitable trust.118 It provides a totally independent, confidential (but not anonymous) reporting system for all individuals employed in or associated with the aviation industry, making available a means by which they are able to raise safety-related issues of concern without being identified to their peer group, management or regulatory authorities. This allows for the collection of confidential safety data. When appropriate, CHIRP acts or advises on information gained through the confidential reports it has received.
There is also an independent UK Airprox Board (UKAB),119 to which a report can be made of a situation in which, in the opinion of a pilot or air traffic services personnel, the distance between aircraft, as well as their relative positions and speed, have been such that the safety of the aircraft involved may have been compromised (an 'Airprox'). The UKAB provides impartial assessments on cause and risk for all Airprox reported in UK airspace. When appropriate, it makes safety recommendations aimed at reducing the likelihood of a recurrence of any given Airprox event. No names are published in UKAB's reports, in order to encourage an open and honest reporting environment.
Protection is afforded to whistle-blowers within the civil aviation industry pursuant to the general provisions of the Public Interest Disclosure Act 1998, which protects them from detrimental treatment from their employer where they make a protected disclosure.120
As to mandatory reporting, see Section IV.
The year in review
Over the past year, aviation in the UK has continued to be affected, and distracted, by the uncertainty caused by the unfolding saga of Brexit. On 23 June 2016, the UK government held a referendum asking whether the UK should leave the EU. It resulted in a majority voting in favour of Brexit (51.9 per cent to 48.1 per cent). On 29 March 2017, the UK government acted upon this result by giving notice to the European Council that the UK is to leave the EU. Pursuant to the terms of Article 50 of the Treaty of Lisbon, this meant that the UK would cease to be an EU Member State on 29 March 2019 unless the European Council, in agreement with the UK, unanimously decided to extend the UK's membership beyond that date. Formal negotiations between the UK government and the EU on the terms of Brexit and the UK's future relationship with the EU, including with regard to the application of EU law in and by the UK, commenced in June 2017 and remain ongoing. In 2018 an agreement was reached between the negotiators that there would be a transition period from 30 March 2019 until 31 December 2020 during which the UK would retain all of the advantages and benefits of EU membership,121 but not on what the position would be thereafter. In the event, the UK government failed get approval from the UK Parliament before the expiry of the 29 March 2019 exit deadline for the draft withdrawal agreement that it had negotiated with the EU, and the UK's exit date was then extended until 31 January 2020, whereupon it formally left the EU. However, it will continue to apply EU law as if it was a Member State until the end a transitional 'implementation period' which is currently due to end on 31 December 2020.122 Negotiations as to the UK's relationship with the EU and EU law thereafter are in progress. As to the consequences of Brexit, see Section XII.
As with the rest of the world, 2020 has also seen the unprecedented effects on the UK as a result of covid-19, which was declared a global pandemic on 11 March 2020. Although this has not caused the UK to formally close its borders, the severe drop in passenger numbers travelling into, out of and within the UK due to the restrictions imposed by the UK government on movement of UK persons, as well as similar restrictions on travel and movement applied in other countries, has led to a very significant reduction in all aviation activities in the UK. At the time of writing, the effects of this are ongoing and predicted to continue to be felt for a prolonged period. It is reasonable to anticipate that the consequences of covid-19 will have a profound effect on the size and shape of the UK aviation industry for some time to come.
The saga of the development of new runway capacity in the South East of England has taken another twist during the course of the last year, with the Court of Appeal holding that the government's designation in favour of the development of a third runway at Heathrow airport in its 'Airports National Policy Statement' was unlawful because it failed to take into account the 2015 Paris Agreement.123 On 7 May 2020, the Supreme Court gave permission for this decision to be appealed to it.
In October 2019, the UK government published its 'Consultation Response on Legislation for Enforcing the Development of Airspace Change Proposals' in follow-up to its consultation on the future of UK aviation to 2050.124 Legislation is apparently to follow.
As can be seen in this chapter, EU law currently plays a very significant role in the law applicable to aviation in the UK. It also provides the basis upon which UK air carriers have access to the single EU aviation market and, similarly, the air carriers from other EU Member States have access to the UK. As matters stand at present, it is far from clear whether, and on what terms, this will continue to be the case once the UK completes its current transition period from EU membership, or what the wider economic implications of Brexit will be. For these reasons alone the UK aviation market and aviation law are likely to endure a considerable period of uncertainty over the next few years. However, that uncertainty is now compounded considerably by the impact of the covid-19 pandemic and the recession it is precipitating. There can be little doubt that we are in for evolutionary times.
1 Robert Lawson QC is a partner and Jess Harman is an associate at Clyde & Co LLP.
2 Although the Channel Islands (i.e., the Bailiwicks of Guernsey and Jersey) and Isle of Man enjoy a unique relationship with the United Kingdom through the Crown, in the person of the Sovereign, they are not part of the United Kingdom but rather are Crown Dependencies. See, for example, R (Barclay) v. Lord Chancellor and Secretary of State for Justice  AC 276.
3 In relation to the DfT generally, see www.gov.uk/government/organisations/department-for-transport.
4 Civil Aviation Act 1982 (as amended), Section 1.
5 Civil Aviation Act 2012, Section 2.
6 As set out in the Civil Aviation Acts 1982 and 2012.
8 See, in particular, CA Act 1982, Section 3.
9 Principally, as set out in and under the CA Acts 1982 and 2012.
10 i.e., those having power to provide air transport services and appearing to the CAA to have their principal place of business in the UK, the Channel Islands and the Isle of Man, and to be controlled by persons who are UK nationals or from the time being approved by the SST for this purpose: CA Act 1982, Section 4(2).
11 So far as British airlines may reasonably be expected to provide such services.
12 CA Act 1982, Section 4 and CA Act 2012, Section 1.
13 The Chicago Convention is given domestic effect in the UK largely by and under the CA Act 1982.
14 As to which, see Sections XI and XII.
15 As to which, see Sections XI and XII.
16 Article 6 of Chicago Convention maintains such a requirement for schedule services (in respect of contracting states), c.f. the general waiver for non-scheduled services in its Article 5.
17 As to which, see the Civil Aviation (Allocation of Scarce Capacity) Regulations 2007. As from the expiry of the UK's EU exit implementation period, these will apply as amended by the Operation of Air Services (Amendments etc.)(EU Exit) Regulations 2018.
18 As from the expiry of the UK's EU exit implementation period, these will apply as amended by the Air Services (Competition)(Amendment)(EU Exit) Regulations 2019 and the Airport Slots Allocation (Amendment)(EU Exit) Regulations 2019 respectively.
19 Namely, a carrier within the meaning of that phrase in Regulation (EC) No. 2027/97: 1961 Act, Section 14. Its Article 2 defines this as a carrier with a valid operating licence granted by a Member State in accordance with Regulation (EEC) No. 2407/92. That regulation has since been repealed and replaced by Regulation (EC) No. 1008/2008, as to which, see Section III.i, below.
20 Namely, by Regulation (EC) No. 889/2002.
21 By reason of amendment made by the Air Passenger Rights and Air Travel Organisers' Licensing (Amendment)(EU Exit) Regulations 2019, upon completion of the UK's EU exit the former route will only apply in relation to UK air carriers.
22 By the Carriage by Air (Revision of Limits of Liability under the Montreal Convention) Order 2009.
24 Air Carrier Liability Regulations 2004 (as amended). By reason of amendment made by the Air Passenger Rights and Air Travel Organisers' Licensing (Amendment)(EU Exit) Regulations 2019, upon the completion of the UK's EU exit this will only apply in relation to UK air carriers.
25 See, for example, Barclay v. British Airways Plc  QB 187 at .
26 Sidhu v. British Airways Plc  AC 430; Stott v. Thomas Cook Tour Operators Ltd  AC 1347. But see Dawson v. Thomson Airways Ltd  1 WLR 883 and Gahan v. Emirates  1 WLR 2287, upholding an exception to this in respect of claims for compensation for delay in arrival at the destination pursuant to Regulation (EC) No. 261/2004.
27 As set out in the Carriage by Air (Supplementary Provisions) Act 1962.
28 Section 1(4).
29 By reason of amendment made by the Air Passenger Rights and Air Travel Organisers' Licensing (Amendment)(EU Exit) Regulations 2019, upon the expiry of the UK's EU exit implementation period this will only apply in relation to UK air carriers.
30 The Carriage by Air Acts (Application of Provision) Order 1967.
31 Holmes v. Bangladesh Biman Corpn  AC 1112.
32 George v. Eagle Air Services Ltd  1 WLR 2133 at –.
33 See, for example, Fellowes (or Herd) v. Clyde Helicopters Ltd  AC 534.
34 Laroche v. Spirit of Adventure (UK) Ltd  QB 778.
35 Disley v. Levine  1 WLR 785.
36 Upon the expiry of the UK's EU exit implementation period, it will continue to apply as amended by the Air Passenger Rights and Air Travel Organisers' Licensing (Amendment)(EU Exit) Regulations 2019.
37 The Civil Aviation (Denied Boarding, Compensation and Assistance) Regulations 2005. Upon the completion of the UK's EU exit, this will apply as amended by the Air Passenger Rights and Air Travel Organisers' Licensing (Amendment)(EU Exit) Regulations 2019.
38 Upon the completion of the UK's EU exit, it will continue to apply as amended by the Air Passenger Rights and Air Travel Organisers' Licensing (Amendment)(EU Exit) Regulations 2019.
39 The Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2014, Regulation 24.
40 Stott v. Thomas Cook Tour Operators Ltd  AC 1347.
41 Upon the completion of the UK's EU exit, these regulations will continue to apply as amended by the Package Travel and Linked Travel Arrangements (Amendment)(EU Exit) Regulations 2018.
42 For the meaning of these terms see Regulation 2(5) and 2(3) of the Package Travel and Linked Travel Arrangements Regulations 2018.
43 Civil Aviation (Air Travel Organisers' Licensing) Regulations 2012 as amended (2012 Regulations), Regulation 9. Upon the completion of the UK's EU exit, these will continue to apply as amended by the Air Passenger Rights and Air Travel Organisers' Licensing (Amendment)(EU Exit) Regulations 2019.
44 2012 Regulations, Regulation 69.
45 CA Act 1982, Section 76(1).
46 Peires v. Bickerton's Aerodromes Limited  1 WLR 2865.
47 Namely, whichever of an EU-OPS AOC or a Part-CAT AOC is applicable to the operation in question. An EU-OPS AOC is one granted pursuant to Annex III of Regulation (EEC) No. 3922/91 as amended: Air Navigation Order 2016 (ANO), Article 2 and Schedule 1. It is required for A to A commercial transport aeroplane operation, i.e., an operation performed by an aeroplane powered by a propeller engine with a maximum operational passenger seating configuration of nine or fewer seats and a maximum take-off mass of 5,750 kg or less; for the purpose of transporting passengers, cargo or mail for remuneration or other valuable consideration; starting and ending at the same place: see ANO, Articles 102 and 2, and Schedule 1. A Part-CAT AOC is one granted under Annex II to Regulation (EU) No. 965/2012 (EASA Air Operations Regulation) authorising the holder to operate commercial transport operations: ANO, Article 2 and Schedule 1. It is required for the purposes of transporting passengers, cargo or mail for remuneration or other valuable consideration that is carried out in accordance with Annex III and IV of the EASA Air Operations Regulation, but that is not an A to A commercial operation: see ANO, Articles 103 and 2, and Schedule 1.
48 ANO, Articles 102 and 103. Upon the completion of the UK's EU exit, this will be subject to amendment by the Aviation Safety (Amendment etc.)(EU Exit) Regulations 2019, so as to omit Article 102 (requirement for an EU OPS air operator certificate).
49 Certain related provisions are contained in the Operation of Air Services in the Community Regulations 2009.
50 Upon the completion of the UK's EU exit, the same provisions of Regulation (EC) No.1008/2008 and the Operations of Air Services in the Community Regulations 2009 will apply to UK air carriers as modified by the Operation of Air Services (Amendment etc.)(EU Exit) Regulations 2018 as amended.
51 That is, an air carrier with a valid operating licence granted by a competent licensing authority in accordance with Chapter II of Regulation (EC) No. 1008/2008, in this instance by the CAA.
52 See Regulation (EC) No. 1008/2008, Chapter III.
53 As to which, see CA Act 1982, Section 69A, and Civil Aviation Regulations 1991, Part III. Upon the completion of the UK's EU exit and subject to any agreement with the EU, including in relation to any further transitional arrangements (as to which see Sections XI and XII, below), UK air carriers will lose their right to operate intra-Community services as of right. From that time the route licensing requirement of Section 69A of the CA Act 1982 will apply generally, as amended by the Operation of Air Services (Amendment etc.)(EU Exit) Regulations 2018. Significantly, it is a condition of a route licence that the applicant (carrier) is a UK national or a body which is incorporated under the law of any part of the UK and is controlled by UK nationals, unless the SST otherwise consents to the grant of the licence. The 1991 Regulations will then apply as amended by the Aviation Safety (Amendment etc.)(EU Exit) Regulations 2019.
54 The meaning of 'public transport' for these purposes is rather convoluted and is qualified by various special rules and exceptions, as to which, see ANO, Articles 6 to 16 (upon completion of the UK's EU exit, as amended by the Aviation Safety (Amendment etc.) (EU Exit) Regulations 2019). However, at its core, it embraces any flight that is not for the purposes of commercial air transport but for which valuable consideration is given or promised for the carriage of passengers or cargo.
55 ANO, Article 101(1). The CAA must grant such a certificate if it is satisfied that the applicant is competent to secure the safe operation of aircraft of the type specified in the certificate on flights of the description and for the purpose specified, having regard in particular to the applicant's previous conduct and experience, equipment, organisation, staffing, maintenance and other arrangements: Article 101(2). Upon completion of the UK's EU exit, Article 101 will apply as amended by Aviation Safety (Amendment etc.) (EU Exit) Regulations 2019.
56 CA Act 1982, Section 64. As to the grant of such a licence see Section 65 and the Civil Aviation Regulations 1991, Part III. Upon completion of the UK's EU exit, a UK air carrier that has a valid operating licence granted by the CAA pursuant to Regulation (EC) No. 1008/2008 as amended by the Operation of Air Services (Amendment etc.)(EU Exit) Regulations 2018 will continue to not need an air transport licence as a result of the exception to that requirement contained in Section 64(2)(d) of the CA Act 1982. For the position in relation to the 1991 Regulations see footnote 53.
57 Regulation (EC) No. 1008/2008, Article 4(f).
58 Upon the completion of the UK's EU exit, the operating licence holder requirements contained in EU Regulation (EC) No. 1008/2008 will apply to UK air carriers as amended by the Operation of Air Services (Amendment etc.)(EU Exit) Regulations 2018. Significantly, the amendments exclude the ownership and control requirements per Article 4(f), and also provide a new, narrower, definition of 'principal place of business'.
59 For the position after the completion of the UK's EU exit see the preceding footnote.
60 CA Act 1982, Section 65(3).
61 ANO, Article 250. A breach of this article is a criminal offence: see ANO, Article 265. Upon the completion of the UK's EU exit, the exception in respect of traffic rights conferred upon a Community carrier as part of the single EU aviation market will cease to apply by reason of amendment made by the Operation of Air Services (Amendment etc.)(EU Exit) Regulations 2018, and ANO, Articles 250 and 265 will apply as amended by the Aviation Safety (Amendment etc.) (EU Exit) Regulations 2019.
62 See ANO, Article 250(3)–(7).
63 As to the application process itself, see www.caa.co.uk/Commercial-industry/Airlines/Licensing/Foreign-carrier-permits/About-foreign-carrier-permits/.
64 Including those commonly known as the EASA Aircraft Certification Regulation, the EASA Continuing Airworthiness Regulation, the EASA Air Operations Regulation, the EASA Aircrew Regulation and the EASA Aerodromes Regulation.
65 i.e., an aircraft that the Basic EASA Regulation and its implementing regulations require to hold an EASA certificate of airworthiness, an EASA restricted certificate of airworthiness or an EASA permit to fly.
66 Upon the completion of the UK's EU exit, they will continue to apply with the modifications made by the Aviation Safety (Amendment etc.)(EU Exit) Regulations 2019 as amended by the Aviation Safety (Amendment etc.)(EU Exit) (No.2) Regulations 2019.
67 In relation to the AAIB generally, see www.gov.uk/government/organisations/air-accidents-investigation-
branch. For the relationship between the DfT and AAIB see https://www.gov.uk/government/publications/protocol-the-role-of-air-marine-and-rail-accident-investigation-branches-and-their-relationship-with-
68 Upon the completion of the UK's EU exit, the latter will continue to apply with the modifications made by the Aviation Safety (Amendment etc.)(EU Exit) Regulations 2019.
69 Rogers v. Hoyle  QB 265.
70 EU Regulation 996, Article 14. A Coroner has no power to order such disclosure: R (on the application of the Secretary of State) v. Her Majesty's Senior Coroner for Norfolk  EWHC 2279 (Admin).
71 See, for example, Lord Advocate, Petitioner  SLT 450.
72 Chief Constable of Sussex Police v. Secretary of State for Transport  EWHC 2280 (QB). In BBC v. Secretary of State for Transport  4 WLR 23, the court refused an application made by media organisations for disclosure of film footage taken by a pilot from the cockpit of an aircraft involved in a fatal accident even though it had been played to the jury in open court during a criminal trial of that pilot.
73 Upon the completion of the UK's EU exit, it will continue to apply with the modifications made by the Aviation Safety (Amendment etc.)(EU Exit) Regulations 2019 as amended.
74 Upon the completion of the UK's EU exit, it will continue to apply with the modifications made by the Civil Aviation (Insurance)(Amendment)(EU Exit) Regulations 2018.
75 Upon the completion of the UK's EU exit, they too will continue to apply in the UK with the modifications made by the Civil Aviation (Insurance)(Amendment)(EU Exit) Regulations 2018.
76 For the position upon the completion of the UK's EU exit, see the Competition (Amendment etc.)(EU Exit) Regulations 2019 as amended.
77 In relation to the CMA generally see www.gov.uk/government/organisations/competition-and-
78 As to this concurrent relationship, see: the Competition Act 1998 (Concurrency) Regulations 2014 (upon completion of the UK's EU exit, as amended by the Competition (Amendment etc.) (EU Exit) Regulations 2019); and the Memorandum of Understanding between the Competition and Markets Authority and Civil Aviation Authority – concurrent powers (9 February 2016).
79 CAP 1235, dated 12 May 2015: https://publicapps.caa.co.uk/docs/33/CAP1235%20GuidanceontheApplicationoftheCAAsCompetitionPowers%20May2015.pdf.
80 Upon completion of the UK's EU exit, it will continue to apply as amended by the Air Services (Competition) (Amendment and Revocation) (EU Exit) Regulations 2019.
81 As to Scotland and Northern Ireland see Section VIII.i, below. There are broadly similar, but in some respect distinct, rules as to damages in these two jurisdictions. However, a review of the differences is beyond the scope of this chapter.
82 Fatal Accidents Act 1976 (as amended) (FAA 1976), Section 1. Section 1(3) gives a list of who may qualify as a 'dependant' for these purposes. Section 2 sets a general rule that the action must be brought in the name of the executor or administrator of the deceased. It also provides that only one action may be brought in respect of the death.
83 Where the death is not instantaneous, the deceased's pre-death losses are recoverable by his or her estate pursuant to the Law Reform (Miscellaneous Provisions) Act 1934. This could include any pre-death pain and suffering.
84 FAA 1976, Section 4.
85 i.e., the wife or husband or civil partner of the deceased; or where the deceased was a minor who was never married or had a civil partner, his or her parents if he or she was legitimate and his or her mother if he or she was illegitimate.
86 FAA 1976, Section 1A.
87 i.e., per Article 29 of the Warsaw Convention and Article 35 of the Montreal Convention.
88 See its Sections 2, 5 and 9 respectively.
89 See its Sections 11 and 12 respectively.
90 Dawson v. Thomson Airways Ltd  1 WLR 883.
91 Including as provided for by any exclusive jurisdictional code, such as that in respect of a claim against a carrier as contained in the Warsaw and Montreal Conventions, at Articles 28 and 33 respectively; see Deaville v. Aeroflot Russian International Airlines  2 Lloyd's Rep 67.
92 See Section II.i and ii.
93 As discussed in Section II.i.
94 See, for example, Articles 21 and 22 of the Montreal Convention, as incorporated into English law as Schedule 1B to the 1961 Act and revised by the Carriage by Air (Revision of Limits of Liability under the Montreal Convention) Order 2009.
95 Upon the completion of the UK's EU exit, the Act will continue to apply as amended by the Product Safety and Metrology etc. (Amendment etc.)(EU Exit) Regulations 2019.
96 CPA, Section 2.
97 CPA, Sections 1(2) and 45(1).
98 CPA, Section 3.
99 CPA, Section 5.
100 CPA, Section 5.
101 CPA, Section 4.
102 CPA, Section 2(5) and (6).
103 CPA, Section 7.
104 Save with reference to employees, as to which see the Employer's Liability (Defective Equipment) Act 1969.
105 See its Article 29.
106 In respect of England and Wales, see the Social Security (Recovery of Benefits) Act 1997 and Part 3 of the Health and Social Care (Community Health and Standards) Act 2003 (as amended) respectively.
107 See Donkers v. Storm Aviation Ltd  1 All ER (Comm) 282.
108 Pursuant to Regulation (EC) No. 216/2008, unmanned aircraft weighing 150 kilograms or more are regulated by EASA and are subject to the same regulatory requirements as manned aircraft. Regulation (EC) No. 216/2008 will remain in force until the European Commission package of regulations relating to the use of Unmanned Aircraft Systems comes into force in the UK on 1 November 2020. At that time, the Basic EASA Regulation will also apply to all unmanned aircraft irrespective of weight. Upon the completion of the UK's EU exit, the Basic EASA Regulation will continue to apply with the modifications made by the Aviation Safety (Amendment etc.)(EU Exit) Regulations 2019 as amended by the Aviation Safety (Amendment etc.)(EU Exit) (No.2) Regulations 2019.
109 The UK has elected that it will not apply the Implementing Regulation before 1 November 2020 due to the disruption caused by the covid-19 pandemic. The UK's position upon completion of EU Exit is not yet clear. However indications of the potential position are set out in CAP 1789, as to which see the next footnote.
110 Further guidance on these regulations can be found in the CAP 1789, dated 29 April 2020: https://publicapps.caa.co.uk/docs/33/CAP1789%20April%202020.pdf.
111 A 'small unmanned aircraft' is defined in the ANO, Schedule 1, as any unmanned aircraft, other than a balloon or a kite, having a mass of not more than 20kg without its fuel but including any articles or equipment installed in or attached to the aircraft at the commencement of its flight.
113 ANO, Articles 94 and 94A as amended by Air Navigation (Amendment) Order 2019.
114 ANO, Article 95.
115 ANO, Article 94A. These rules came into force under the Air Navigation (Amendment) Order 2019 on 13 March 2019.
116 ANO, Article 94A.
117 ANO, Articles 94C–94F.
120 This includes a disclosure that a criminal offence, failure to comply with a legal obligation, or the endangerment of the health and safety of any individual, has occurred, is occurring or is likely to occur.
122 See the European Union (Withdrawal) Act 2018 (as amended).
123 R. (on the application of Friends of the Earth Ltd and others.) v. Secretary of State for Transport v. Heathrow Airport Ltd and others  EWCA Civ 214.