My Lords, while I fully appreciate my noble friend’s concerns in respect of the general and business aviation sector, and the effect on that sector of allowing the CAA to make use of alternative civil sanctions in enforcing offences under an air navigation order, I oppose this amendment because it dilutes the intention of Clause 102.
Noble Lords may recall that my noble friend tabled, and this House debated, an identical amendment in Grand Committee before it was withdrawn, and there is more or less only one way for my noble friend to achieve his objectives. Before turning to the detail of the points made by my noble friend on this amendment, it is important to emphasise the purpose and importance of the clause this amendment seeks to alter.
Clause 102 amends Part 3 of the Regulatory Enforcement and Sanctions Act 2008 to enable the Secretary of State to make an order conferring on the CAA the power to make use of civil sanctions where it currently relies almost exclusively on criminal prosecutions. We believe that criminal sanctions are disproportionate in relation to some offences, such as minor breaches or offences of an administrative nature, especially when it comes to a normally diligent and conscientious person.
For example, the CAA has an enforcement function in respect of a number of offences using criminal sanctions which entail liability to a summary conviction and a fine. These include failing to return a certificate of registration to the CAA; failing to preserve a log book; failing to keep a personal flying log book; or failing to carry when in flight documents such as the licences of the flight crew of an aircraft or the certificate of registration in force for the aircraft. Another example is where an organisation does not hold an air travel organisers licence when it is required to do so—in other words when it is trading without the necessary licence. Should a person fail to comply with such a requirement, a civil sanction might well be considered to be a more appropriate enforcement action than criminal prosecution.
Providing the CAA with powers to address non-compliance using civil sanctions would help to reduce the risk of a compliance deficit where such offences might on occasion not be prosecuted at all because on the facts a criminal prosecution was considered disproportionate to the breach, excessively time consuming or expensive. However, my noble friend should be aware that the criminal standard of proof still applies. It needs to be more than just an alleged offence.
The purpose of providing the CAA with a range of additional enforcement tools as an alternative to a criminal prosecution is to allow more graduated and flexible enforcement. For example, some of the civil sanctions available under RESA are variable monetary penalties of an amount to be determined by the regulator; compliance notices containing a requirement to take specified steps to ensure an offence does not continue
or happen again; and enforcement undertakings where a person may volunteer a resolution by giving an undertaking to take one or more corrective actions.
Clause 102 enables the Secretary of State to confer civil sanctioning powers on the CAA in respect of offences under primary legislation and extends certain powers of the Secretary of State in the Civil Aviation Act 1982 to make criminal offences by secondary legislation. These include the power of the Secretary of State in Section 61 to create criminal offences under an air navigation order. Such orders set the rules, which the CAA largely enforces, that regulate air navigation in the UK. Conferring RESA civil sanctioning powers on the CAA in respect of offences under an air navigation order would require secondary legislation to be laid before Parliament.
Moreover, the instrument would be subject to full consultation and impact assessment, providing an opportunity for all interested parties to make their views known. We fully intend to write to stakeholders, including those in general aviation, informing them of the consultations in ample time to brief their members to involve themselves. We will involve as many individuals and groups as general aviation stakeholders bring to our attention.
The amendment would deprive the CAA of the use of civil sanctions in respect of offences in an air navigation order. This would significantly dilute the intended purpose of Clause 102 to allow the CAA to make use of alternative civil sanctions. My noble friend referred to the complexity of the ANO, but regretfully there are several regulations that are very complicated. I am interested in the ones on road vehicles, and the construction and use regulations are extremely complicated—and, in addition, refer to other European regulations and directives as well.
The inclusion of Section 61 of the 1982 Act is of central importance, as it will enable the Civil Aviation Authority to use civil sanctions in respect of offences in the air navigation order, which is the most significant instrument for the regulation of air navigation in the UK. Concerns have been expressed during the passage of the Bill as to CAA’s use of civil sanctioning powers. RESA contains a number of safeguards to this effect. For example, before making any order, the Minister must be satisfied that the regulator will carry out its activities in a way that is transparent, accountable, proportionate, consistent and targeted only at cases where action is needed. Prior to exercising any civil sanctioning powers, the CAA is required to consult on and publish detailed guidance on its use of civil sanctions and enforcement of particular offences. For these reasons, I hope that my noble friend will consider withdrawing his amendment.