By Nathan Coyne
It's March 2019, the day after Britain formally left the European Union. A passenger airliner taxis out to the runway at one of London's airports and receives clearance to take off.
Shortly after leaving the runway it hits a flock of birds in what is known as a bird strike, as occurred on 1,835 flights in the UK in 2016 according to CAA data. As a modern commercial airliner it is designed to withstand the impact and continue flying, but with an engine warning light flashing up – such strikes can cause serious damage – the captain decides to make an emergency landing.
The delay while the aircraft is inspected lasts four hours, much to the frustration of passengers. In the weeks that follow, and with a delay of that length, many of the passengers file for compensation.
If we were still in the EU, the passengers wouldn't be entitled to compensation. Because in the Peskova ruling of May 2017 the European Court of Justice (ECJ) decided that a bird strike was an 'extraordinary event' under EU flight compensation regulation 261 – with the result that airlines didn't have to pay compensation, just as they don't for delays caused by lightning strikes or severe weather events.
Prior to that ruling, British courts had determined that bird strikes were not 'extraordinary events', and thus delayed passengers did receive payouts.
So, surely now we had followed through with Theresa May's Lancaster House speech of two year's previously and 'taken back control of our laws', it would just be a case or reverting to the status quo prior to the ECJ ruling.
If only it was that simple. In fact we might be grateful that the aircraft was allowed to take off at all.
At a meeting in the House of Lords earlier this week, hosted by Labour party peer Lord Berkeley, we were informed that there was "no prospect of negotiations on transport for the foreseeable future."
Mark Watts, a former Labour MEP and co-ordinator of UK Transport in Europe told assembled members and lobbyists this was "the dire situation we are in."
"Most politicians do not believe transport is a priority. They never have done," he said.
And rather worryingly, given it is transport that provides the physical connection to Europe for movement of goods and people, there is "no prospect" of getting an agreement by next September.
Across aviation, rail, sea and road the concerns were mirrored.
There was the issue of safety certificates and operator licences. Would staff of British based companies be able to operate trains, lorries, aircraft in the EU on the day Britain leaves?
"We should not be planning for an independent aviation safety regulation [system]", said Andrew Haines of the Civil Aviation Authority.
What about European staff in UK companies? 20% of the skilled workforce in rail comes from the EU, according to John Thomas of the Rail Delivery Group. In London, the transport system simply wouldn't function, a representative from TfL told the room, without the contribution of EU members of the workforce, from rail engineers to the people who clean buses.
We heard how, far from pushing for a trade deal, many European corporations and industry groups see Brexit as an opportunity. It was no secret that Lufthansa and Air France wanted to make negotiations more difficult, we heard.
Uncertainty was pushing the likes of Easyjet to make contingency plans, with their recent application for an air-safety certificate in Austria part of a plan to ensure they can maintain intra-European flights post Brexit.
But the most interesting contribution of the evening came from Emma Giddings, a lawyer with Norton Rose Fulbright who examined the interrelationship of 'taking back control' and the need to maintain the trading relationship. She likened negotiations to a game of Kerplunk where if you "Iose too many straws you can end up losing your marbles".
Back to our birdstrike incident and that compensation payout. Whether it would be down to the British courts to decide comes down to the structure of UK/European aviation systems post Brexit.
Currently, the UK is party to the European Common Aviation Area (ECAA) agreement which grants permission for UK airlines to fly to 44 countries. But it is not exclusive to EU members, as it also incorporates Norway, Croatia, Iceland and Macedonia among others.
But, Giddings pointed out that any disputes that occur within the framework of the ECAA are of course settled by the jurisdiction of the ECJ. The Lancaster House speech promised to end the ECJ's jurisdiction in the UK which in theory would prohibit re-signing to the ECAA – raising the prospect that UK airlines could face more restrictions than their Macedonian counterparts in the immediate aftermath of Brexit.
The ECAA also assumes reference to the European Aviation Safety Agency (EASA), and not a domestic version. But if we did re-sign the ECAA, could the EASA, Giddings asked, compel the UK to accept legislation to which the UK did not agree?
There could be some room for manoeuvre. This comes in the form of a recent softening in the language coming out of Downing Street in relation to the ECJ, with a pledge to end "direct" jurisdiction. Not therefore the indirect jurisdiction which would result from re-signing up to the ECAA. A blurring of the red lines to retain market access.
So, will our airline passengers be liable for compensation following the birdstrike incident?
If we re-sign up to the ECAA, then we would still be liable to abide by EU261 – or the cut and paste copy of the regulation that will be assumed into British law – so the answer is almost certainly no.
But with transport negotiations yet to start and the balance between 'taking back control' and market access yet to be struck, the much bigger concern is just how much needs to be done to allow flights on the day after Brexit, to take off at all.
Nathan Coyne is a director at Senate Media, the publisher of Politics.co.uk, and a keen follower of transport policy issues.
The opinions in politics.co.uk's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners.
