In mid-February, the CAA announced its intention to publish CAA Notices as a means of ensuring that “the regulatory framework remains responsive and adaptable to change.”
On the surface, these objectives almost appear noble. But when we peel back the layers, what emerges is a worrying erosion of the checks and balances that have underpinned aviation rule-making since the early 1990s.
A CAA Notice will be a mandatory stipulation of requirements and must be complied with. It will be reinforced by a rule, but the notice itself will be issued by the CAA rather than going through the rule-making process.
When concerns were raised about the advent of CAA Notices without any consultation, the response from CAA management was that there is no proposal to consult on the concept of Notices because these are currently permitted under Section 28(5) of the Act.
Section 28(5) was inserted into the Civil Aviation Act in 2010 and does confer certain powers to impose requirements or conditions; however, some seven years later, the CAA is being somewhat cute in its interpretation of how far the law-makers (Parliament) intended these powers to extend.
One of the positives of our system of government is that it keeps records, and these very clearly show that:
- In recommending amendment of the Civil Aviation Act to Cabinet, the Minister sought to grant the Director power to determine technical matters such as testing equipment, syllabi and examinations
- Cabinet agreed to amend the Civil Aviation Act to provide for rules that delegate to the Director the power to determine technical matters, such as testing equipment, syllabi, and examinations
- When introducing the amendments to Parliament for debate, the Associate Minister highlighted them as being about the power of the Director to determine technical matters under the Civil Aviation Rules.
Parliament intended the granting of powers to determine technical matters in a narrow range of areas. It never intended the establishment of a process where the CAA becomes the risk-definer, the solution-chooser, the rule-maker and the law-enforcer.
This entire CAA Notices concept is a flossed-up attempt by the regulator to twist the intent of the law-makers in order to extend its tentacles and shield itself from the scrutiny of its masters. Aviators will not have recourse to the MoT or Minister regarding the content of CAA Notices.
Rather than looking for mechanisms to increase its powers and subvert the checks and balances that exist, the CAA should be focusing on getting rules and rule amendments right the first time so that they progress through the existing process in a timely manner.