Air Traffic Management And Unmanned Aircraft Act 2021

Policy and Legal background (Parts 1 to 3)

Part 1: Airspace change proposals

Policy Background

2. Airspace is the volume of space above ground level, extending as far as aircraft can fly. Airspace has to be managed so it can be used safely and efficiently. The UK’s airspace structure is set out in the UK’s Aeronautical Information Publication, 1 with there being five classes of airspace: A, C, D and E (which are controlled airspace, requiring clearance to enter) and G (which is uncontrolled airspace). Airspace changes can include proposals, for example, to amend airport flightpaths, to change the classification of particular airspace or to alter high-level flightpaths.
3. A programme of airspace modernisation is underway to redesign the UK’s flightpaths to deliver quicker, quieter and cleaner journeys, and more capacity, for the benefit of those who use and are affected by UK airspace. It is being delivered by the aviation industry, with support from the independent regulator, the Civil Aviation Authority ("the CAA"), and from the Government, which is providing leadership and oversight of governance for the programme.
4. There are particular challenges in the highly congested airspace of the south of the UK, where there is a high level of interdependence between airports sharing the same airspace. Due to the complex nature of this airspace, the Government expect airports in the region to bring forward coordinated airspace change consultations in the coming years. Indeed, many airports have already begun their airspace change proposals, ahead of public consultations on flightpath options, likely in 2022.
5. Prior to the Act, there were no powers for the Government or the CAA to guarantee the progression of airspace change if an airport did not voluntarily participate in the airspace modernisation programme. That meant an airport could hold up another or several others, thereby delaying the programme. In addition, there were no effective levers to ensure the delivery of other airspace modernisation outcomes, such as those related to safety, capacity, management of noise impacts, air quality, fuel efficiency, improving access to airspace for all users (including where controlled airspace is no longer justified), military access, or to introduce new technology.
6. In December 2018, the Government launched a consultation entitled "Aviation 2050 – the future of UK Aviation", Annex A of which was entitled "Legislation to enforce the development of airspace change proposals". 2 The Government response to this aspect of the consultation was published in October 2019, and confirmed the Government’s intention to bring forward legislation regarding airspace change proposals. 3
7. Part 1 of the Act provides new powers for the Secretary of State (delegable to the CAA) to direct airports and other entities with functions relating to air navigation to progress ACPs, which will be linked to the CAA’s Airspace Modernisation Strategy.

Legal Background

8. The 2000 Act includes provision on air traffic services (Part 1, Chapter 1) and air navigation (Part 1, Chapter 3). Of relevance to Part 1 of the Act, under section 66(1) of the 2000 Act (air navigation: directions), the Secretary of State has a power to give directions to the CAA regarding air navigation. This was most recently done in the form of the Civil Aviation Authority (Air Navigation) Directions 2017, 4 direction 3(e) of which requires the CAA to prepare and maintain a strategy and plan for the use of all UK managed airspace (hereafter referred to as "the CAA’s airspace strategy", as defined in section 8(1). Part 1 of the Act contains provisions which enables the Secretary of State (or the CAA, if the function is delegated to it) to give directions to bring about airspace change, where this will assist in delivering the CAA’s airspace strategy.

Part 2: Air traffic

Policy Background

9. En route air traffic services are currently provided in the United Kingdom by NATS (En Route) plc ("NERL"), a wholly owned subsidiary of NATS Holdings Limited ("NATS") by virtue of a licence granted to it by the Secretary of State under Part 1 of the 2000 Act. The 2000 Act confers on the CAA, as the UK’s specialist aviation regulator, the role of economic regulator of NERL.
10. The CAA is responsible for monitoring and enforcing NERL’s compliance with the conditions of the licence and with its duties under section 8 of the 2000 Act. It also has powers to modify conditions of the licence, subject to its duties under section 2 of the 2000 Act. Its primary duty, one shared with the Secretary of State, is to maintain a high standard of safety in the provision of air traffic services. The CAA also has a number of duties secondary to this main duty (of which the first three are shared with the Secretary of State):
    • to further the interests of operators and owners of aircraft, owners and managers of aerodromes, persons travelling in aircraft and persons with rights in property carried in them;
    • to promote efficiency and economy on the part of licence-holders;
    • to secure that licence holders will not find it unduly difficult to finance activities authorised by their licences;
    • to take account of any international obligations of the United Kingdom notified to the CAA by the Secretary of State; and
    • to take account of any guidance on environmental objectives given to the CAA by the Secretary of State.
    In addition, both the CAA and the Secretary of State are under a duty to exercise their functions in such a way as to impose on licence holders the minimum restrictions which are consistent with the exercise of those functions.

11. There have been two serious system failures that have prompted reviews of the regulatory framework for NERL, including the enforcement and penalty regime. The first incident, a Voice Communications Systems (VCS) failure on 7 December 2013, which had a particularly disruptive effect on passengers, prompted a wide-ranging CAA review into the NERL licence and regulatory framework. The second incident involved a computer system failure on 12 December 2014, resulting in the CAA and NATS establishing an independent enquiry into its cause.
12. For both failures, the CAA was satisfied that there were no safety issues associated with NATS’s handling of the incident and there was no evidence that NATS was in breach of the service obligations in its licence. The independent enquiry into the 2014 system failure, however, made a number of recommendations to update and modernise the licensing framework. 5
13. In September 2016, the Government published a consultation document "Modernising the licensing framework for air traffic services" 6 . The Government’s response was published in February 2017 7 . The consultation related to proposals for:
    • amending the licence modification process to enable the CAA to make changes to the licence after consultation and conferring a right of appeal to affected parties;
    • conferring a wider range of enforcement tools on the CAA, and enabling the licence holder to appeal decisions to an appropriate body;
    • updating the Secretary of State’s powers to be able to amend certain licence provisions, in particular the period the licence continues in force.

14. Part 2 of the Act updates the regulatory framework governing the provision of air traffic services by repealing and replacing provision covering licence modification and enforcement in Part 1 of the 2000 Act. The new provision is modelled on the framework in Part 1 of the Civil Aviation Act 2012 relating to the licensing of airports, and contains a more comprehensive suite of regulatory and enforcement tools. The new framework will, amongst other things, enable the Secretary of State to modify a term of a licence as well as strengthen the CAA’s powers to modify a licence condition. There is a new procedure for modifying a licence condition (including new appeal rights conferred on the licence holder and certain other persons), and provision for enforcement in respect of the contravention of a licence condition or statutory duty (including power to impose financial penalties).
15. Part 2 also includes provision relating to airport slot allocation. The process of allocation of slots at capacity constrained airports is governed by retained Regulation (EEC) No 95/93, as amended, on common rules for the allocation of slots at Community airports ("Regulation 95/93"). The Regulation allows the Secretary of State to designate an airport as "coordinated" where there is significantly more demand from air carriers to use the airport than there is capacity available. These are often referred to as "level three" airports. In the UK, there are currently eight slot coordinated / level three airports: Birmingham, Bristol (Bristol is coordinated only at certain times of the year), Gatwick, Heathrow, London City, Luton, Manchester and Stansted.
16. Articles 8(2) and 10(2) of Regulation 95/93 provide that where an air carrier has operated slots allocated to it for at least 80% of the time during the scheduling period (winter / summer) for which the slots were allocated, the air carrier will be entitled to the same slots in the next equivalent scheduling period.
17. In response to the COVID-19 pandemic the European Union amended Regulation 95/93 to waive this 80% usage rule for the Summer 2020 scheduling period. The EU Commission was also given a delegated power to extend the duration of this waiver, which it exercised to include the Winter ‘20/21 scheduling period. The UK has supported this position to protect future connectivity, airline finances, and reduce the risk of empty, or near empty flights being run to retain slots under the 80% usage rule.
18. In anticipation of the end of the current waiver and the Transition Period, the Department for Transport laid regulations on 1 December 2020 to transfer the delegated power of the EU Commission to extend the waiver to the Secretary of State for Transport. Those regulations were debated in Committee in the House of Commons on 12 January 2021, and in Grand Committee in the House of Lords on 19 January 2021. A further set of regulations were laid on 26 February 2021 to extend the duration of the waiver for the summer season. As provided for in Regulation 95/93, this delegated power only lasted until 2 April 2021, and the waiver’s duration could only be set at the time of making the regulations. The decision to extend the waiver must be based on available data and there is currently a lack of forward demand data on which to justify an extension to include the Winter ‘21/22 scheduling period. Without primary legislation to give new powers, the 80% usage rule would therefore resume well before passenger demand is expected to recover.
19. Because slots at capacity constrained airports are scarce, they hold substantial operational, competitive and often financial value to air carriers. In the current context, where passenger demand has declined significantly due to the COVID-19 outbreak, if the 80% usage rule resumed, it is likely that air carriers could deem it in their commercial interests to continue to operate flights, despite associated costs both financial and environmental, with empty or near-empty aircraft. Having the ability to continue to provide a waiver from the 80% usage rule, or to vary the percentage for future seasons, will allow the adoption of appropriate measures to alleviate these costs and to support recovery of the aviation sector, as passenger demand for flights returns.
20. Part 2 gives the Secretary of State temporary power to implement alleviation from airport slots requirements for air carriers, in response to the impact of the COVID-19 pandemic, until such a time as passenger demand recovers (predicted to be 2025).

Legal Background

21. Part 2 of the Act will repeal and replace part of Chapter 1 of Part 1 of the 2000 Act, so as to update the regulatory framework which governs the licensing of air traffic services. Further legal background is explained (where relevant) in the related sections of these Notes.
22. Part 2 of the Act inserts new Article 10aa into Regulation 95/93. This new Article 10aa provides the Secretary of State with temporary power, exercisable until 24 August 2024, to make regulations to amend Regulation 95/93 or the Airports Slot Allocation Regulations 2006, to make provision about the allocation of airport slots to air carriers in respect of specified scheduling periods. The power would be exercisable only if the Secretary of State considers that as a result of COVID-19 there has been a reduction in the level of air traffic compared to the corresponding period in a relevant previous year and the reduction is likely to persist.

Part 3: Unmanned aircraft

23. This part of the notes provides an overview of the background to the policies relating to Unmanned Aircraft (UA) being taken forward in the Act.
24. The Act provides that "unmanned aircraft" means any aircraft operating or designed to operate autonomously or to be piloted remotely without a pilot on board. Drones and model aircraft are the most commonly used types of UA. These Explanatory Notes also use the term "tethered small unmanned aircraft" ("tethered small UA") where it is relevant. This is a term defined in the Air Navigation Order 2016 8 ("ANO 2016") as an unmanned aircraft- (a) having a maximum take-off mass (MTOM), within the meaning of Article 2 of the Unmanned Aircraft Implementing Regulation, of not more than 1kg; and (b) which is flown within limits imposed by a restraining device which attaches the aircraft to the surface or to a person on the surface. In the ANO 2016, "Unmanned Aircraft Implementing Regulation" means Commission Implementing Regulation (EU) 2019/947 of 24 May 2019 on the rules and procedures for the operation of unmanned aircraft. 9 This EU Regulation is also referred to in the Act, but as the "UK Implementing Regulation". In these Explanatory Notes this Regulation is simply referred to as the "Implementing Regulation". The term "UAS operator" is also used in both the Act and these Explanatory Notes. UAS operator is defined in Schedule 1 to the ANO 2016 as any person operating or intending to operate one or more UAS. The term "UAS" is used in both the Act and these Explanatory Notes and means unmanned aircraft system. This refers to a UA and the equipment used to control it remotely.
25. UA are used to great effect across a range of industries and sectors. Our emergency and search and rescue services use them to help keep people safe, and they reduce risks to people working in hazardous sectors such as the oil and gas industry. They are used across many other global industries, the public sector and charities to drive more efficient ways of working, to monitor environmental change, to deliver medicines, and to assist infrastructure inspections and construction.
26. The misuse of UA has increased in recent years, which poses safety and security concerns. In particular, the number of incidents of UA coming within unsafe proximity of manned aircraft increased from six incidents in 2014 to 125 in 2018. The number of incidents slightly decreased to 91 in 2019 and the figures for 2020 were naturally impacted by the pandemic. The significant disruption to operations at London Gatwick Airport in December 2018 was a stark example of the large economic and operational impacts UA can have when used with malicious intent.
27. To tackle this growing misuse of UA, the Act makes provision for the following:
    1. New powers for constables to allow them to better enforce offences relating to UA in the ANO 2016 and certain offences in the Prison Act 1952, the Prison Act (Northern Ireland) 1953, the Prisons (Scotland) Act 1989 and common law offences in Scotland. These include powers to require a UA to be grounded, to stop and search persons or vehicles in specific circumstances, to enter and search premises under warrant, to require production of evidence and information, to inspect UA and to issue fixed penalty notices ("FPNs") in certain situations.
    2. An amendment of the Police Act 1997 to enable the use of counter-UA technologies to prevent the use of UA to commit certain ANO 2016 offences, certain Prison Act 1952 offences, certain Prison Act (Northern Ireland) 1953 offences, certain offences at common law in Scotland, certain Prisons (Scotland) Act 1989 offences and an offence in the Aviation and Maritime Security Act 1990.
28. Prohibitions and offences relating specifically to the operation of UA are set out in the ANO 2016. Most of the substantive rules to which those prohibitions and offences relate are in the Implementing Regulation (now retained EU law). The Implementing Regulation became applicable on 31 December 2020 and considerable amendments were made to the ANO 2016 in December 2020 as a result. 10
29. The Implementing Regulation creates a new risk-based framework and lays down detailed provisions for the operation of UA in three different risk-based categories. This new regulatory framework is now reflected in the provisions of the ANO 2016. The basic features of the regulation of UA flights in the Implementing Regulation and the ANO 2016 are that a UA must not be flown without the consent of the CAA if the flight would be:
    1. within the flight restriction zone of a protected aerodrome;
    2. beyond the visual line of sight of the remote pilot;
    3. above 120m from the closest point of the surface of the earth;
    4. conducted with a UA which has a maximum take-off mass of 25kg or more;
    5. close to uninvolved people, over assemblies of people and (depending on the mass of the UA) close to residential, commercial, industrial or recreational areas;
    6. conducted while carrying any dangerous goods or dropping any material.
30. The Implementing Regulation contains a number of different registration requirements for UAS operators and competency requirements for remote pilots. The related offences are set out in the ANO 2016. The ANO 2016 also applies some of the registration and competency requirements in the Implementing Regulation to flights by tethered small UA. Under the ANO 2016 it is also an offence to recklessly or negligently endanger an aircraft (not a UA), and doing so can lead to an unlimited fine or a five-year prison sentence or both.

Finally, in the Aviation and Maritime Security Act 1990:

1. It is an offence to intentionally use a device (which can include a UA) to commit an act of violence which causes or is likely to cause death or serious personal injury, and endangers or is likely to endanger the safe operation of an international aerodrome or persons at the aerodrome. If a person is found guilty this can attract a sentence of life imprisonment.
2. It is an offence to intentionally use a device (which can include a UA) to disrupt services at an international aerodrome, in such a way as to endanger or be likely to endanger safe operation of the aerodrome or persons at the aerodrome, and this offence can attract a sentence of life imprisonment.
31. Two public consultations have informed the contents of the Act: "Taking Flight: The Future of Drones in the UK" 11 , which ran between 26 July 2018 and 17 September 2018, and "Stop and search: extending police powers to cover offences relating to unmanned aircraft (drones), laser pointers and corrosive substances", 12 which ran between 9 September 2018 and 22 October 2018.
32. The following legislation is referenced in Part 3 of the Act:
    1. Prison Act 1952;
    2. Prison Act (Northern Ireland) 1953;
    3. Magistrates’ Courts Act 1980;
    4. Magistrates’ Courts (Northern Ireland) Order 1981;
    5. Civil Aviation Act 1982;
    6. Police and Criminal Evidence Act 1984;
    7. Police and Criminal Evidence (Northern Ireland) Order 1989;
    8. Prisons (Scotland) Act 1989;
    9. Aviation and Maritime Security Act 1990;
    10. Criminal Justice Act 1991;
    11. Criminal Justice and Public Order Act 1994;
    12. Criminal Procedure (Scotland) Act 1995;
    13. Police Act 1997;
    14. Regulation of Investigatory Powers Act 2000;
    15. Criminal Justice Act 2003;
    16. Energy Act 2004;
    17. Constitutional Reform and Governance Act 2010;
    18. Criminal Justice and Courts Act 2015;
    19. Justice Act (Northern Ireland) 2015;
    20. Air Navigation Order 2016;
    21. Criminal Justice (Scotland) Act 2016;
    22. Investigatory Powers Act 2016;
    23. Justice Act (Northern Ireland) 2016;
    24. Data Protection Act 2018;
    25. Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation;
    26. Commission Delegated Regulation (EU) 2019/945 on unmanned aircraft systems and on third country operators of unmanned aircraft systems; and
    27. Commission Implementing Regulation (EU) 2019/947 on the rules and procedures for the operation of unmanned aircraft.

Grounding an unmanned aircraft

Policy Background

33. The Government considers it necessary for a constable to be able to require a person to ground a UA where there is reasonable belief that an offence has been, is being or is likely to be committed, as a means of providing immediate enforcement. This proposal was addressed in the consultation "Taking Flight: The Future of Drones in the UK". Most responses to this part of the consultation showed strong support for this new power, as many of those who responded felt it would improve enforcement and act as a more significant deterrent to anyone thinking of using a UA illegally.

Legal Background

34. There is no existing power which permits a constable to require a person to ground a UA in the circumstances provided for in the Act.

Stop and search

Policy Background

35. Between 9 September and 22 October 2018, the Home Office ran the public consultation, "Stop and search: extending police powers to cover offences relating to unmanned aircraft (drones), laser pointers and corrosive substances". The consultation included questions on UA on behalf of the Department for Transport to inform the content of this Act. Responses to the consultation were broadly unsupportive of proposals relating to UA. Many respondents felt that the intrusive nature of stop and search powers would be disproportionate to what they perceived as a lack of threat.
36. The consultation was conducted prior to events at London Gatwick Airport in December 2018. In light of those events, the Home Office response to the consultation, published on 20 February 2019, included, alongside proposals for stop and search powers to support the new offence of possessing a corrosive substance in a public place, a commitment to develop a stop and search power for offences relating to flying a UA in the flight restriction zone of a protected aerodrome. The consultation response also set out the Government’s intention to keep the further expansion of stop and search powers in relation to other offences involving UA under review. After further consideration, the Government decided that a stop and search power which would apply in relation to a limited number of offences in the ANO 2016 and prison offences was necessary.

Legal Background

37. The provisions in the Act provide the police with the power to stop and search any person or vehicle (or anything in or on a vehicle) in specific circumstances. This power applies where the constable has reasonable grounds for suspecting that they will find a UA, and/or any article associated with a UA, which is or has been involved in the commission of certain offences in the ANO 2016, or the Prison Act 1952 or equivalent legislation in Scotland and Northern Ireland. This power also applies in relation to certain prison offences involving the use of a UA where the constable has reasonable grounds for suspecting that they will find any other article. In this context, uses of a UA which would be caught by this power include, but are not limited to, flying a UA within the flight restriction zone of a protected aerodrome without permission from the CAA or using UA to commit prison-related offences, such as facilitating an escape or conveying prohibited items such as drugs, weapons, mobile phones or tools into a prison.
38. Schedule 8, paragraph 2(2) provides the power to stop and search in relation to suspected contraventions of the following offences:
    1. Article 94A of the ANO 2016, which provides that a UAS operator must not cause or permit a UA to be flown and a remote pilot must not fly a UA within the flight restriction zone of a protected aerodrome without the required permission.
    2. Article 239(4) of the ANO 2016, which provides that it is an offence to contravene or fail to comply with regulations made under article 239, under which the Secretary of State may make regulations prohibiting or restricting flying of all aircraft, including UA.
    3. Article 240 of the ANO 2016, which provides that a person must not recklessly or negligently act in a manner likely to endanger an aircraft, or any person in an aircraft.
    4. Article 265A(2) of the ANO 2016, the effect of which is that it is an offence for a UAS operator not to operate within the new risk-based framework of the Implementing Regulation.
    5. Article 265B(2) of the ANO 2016, the effect of which is that it is an offence for a remote pilot not to fly in accordance with the new risk-based framework of the Implementing Regulation.
    6. Article 265B(3) of the ANO 2016, to the extent an offence under that provision is a "relevant offence under article 265B(3) of the ANO 2016" as defined in paragraph 6 of Schedule 8. The offence applies to contraventions by a remote pilot of any of the requirements listed in that article. An example of a relevant requirement in relation to a relevant offence under article 265B(3) of the ANO 2016 is not to fly a UA above the maximum operating height permitted in the open category.
    7. Article 265E(7) of the ANO 2016, to the extent an offence under that provision is a "relevant offence under article 265E(7) of the ANO 2016" as defined in paragraph 7 of Schedule 8. The offence applies to contraventions by a remote pilot flying a tethered small UA of any of the requirements listed in that article. An example of a relevant requirement in relation to a relevant offence under article 265E(7) of the ANO 2016 is not flying a tethered small UA beyond visual line of sight.
    8. Certain offences under the Prison Act 1952:
       • Section 39 makes it a criminal offence to assist a prisoner to escape. This assistance can include bringing, throwing or conveying anything into a prison with the intention to facilitate the escape of a prisoner. Such actions could be carried out using UA.
       • Sections 40B, 40C and 40CB, which make it a criminal offence for someone to bring, throw or convey prohibited items into a prison, as well as to throw any article into a prison, where they do not have authorisation. Again, such actions could be carried out using UA.
    9. Offences in the Prison Act (Northern Ireland) 1953, the Prisons (Scotland) Act 1989 and common law offences in Scotland which are equivalent to those in the Prison Act 1952.
39. In order for a constable to exercise this stop and search power, the constable must have reasonable grounds for suspecting that they will find a UA or an article associated with a UA which is or has been involved in the commission of one of these offences. Additional requirements apply in respect of some offences.
40. Where relevant, the provisions in the Police and Criminal Evidence Act 1984 ("PACE 1984") apply to the seizure and retention of property.

Entering and searching premises under warrant

Policy Background

41. Offences specific to UA in the ANO 2016 are summary only offences, and therefore existing entry and search powers which exist for indictable offences cannot be used. In the consultation "Taking Flight: The Future of Drones in the UK", this power was discussed as a means to address this gap so that the police are able to adequately investigate offences relating to UA. Putting in place a warrant process provides an additional safeguard against potential misuse of this power by involving the independent judgement of a justice of the peace in England and Wales, a justice of the peace, a summary sheriff or a sheriff in Scotland, or a lay magistrate in Northern Ireland, necessitating the police to justify their case for a warrant to them.

Legal Background

42. The new entry and search powers in this Act provide the police with entry and search powers in relation to "relevant unmanned aircraft offences". The Act sets out in Schedule 8 at paragraph 5 the definition of a relevant unmanned aircraft offence, which includes various ANO 2016 offences and also offences in relation to prisons that can be committed with a UA.

Use of counter-unmanned aircraft technology

Policy Background

43. Counter-UA technologies exist and can be used to disrupt illegal UA use. The legal issues regarding their use depend on the way in which they exert their effect. Some of these systems interfere with or disrupt the electronic signals between the UA and its controller, which, if done without lawful authority, may amount to a criminal offence under the Wireless Telegraphy Act 2006. The use of kinetic counter-UA measures, such as net guns and tactical firearms, of which the effect is to physically disrupt the UA, could amount to unlawful property interference.
44. Section 93 of the Police Act 1997 provides for a limited number of named public authorities to authorise property interference or interference with wireless telegraphy that would otherwise be unlawful where it is believed to be necessary for preventing or detecting serious crime and where the action is proportionate to what it seeks to achieve. Section 93(4) of the Police Act 1997 defines "serious crime" in a number of ways, including by reference to offences for which a person "could reasonably be expected to be sentenced to imprisonment for a term of three years or more", or where the conduct involves violence, results in substantial financial gain, or is conducted by a large number of people in pursuit of a common purpose. Various offences involving UA, whilst having statutory maximum sentences higher than three years, have not involved sentences of that term. Other offences, such as some of the offences under legislation relating to prisons which concern the conveying of articles into prisons, attract maximum sentences of less than three years. Therefore, UA may be used to commit offences that would not constitute serious crime under the definition in section 93(4), since it would not be reasonable to expect a sentence of three years or more.
45. The Act provides, through an amendment of section 93 of the Police Act 1997, for the authorisation of property interference and interference with wireless telegraphy to detect or prevent certain offences using a UA. In addition, the Act extends the range of public authorities who can authorise interference with property and/or wireless telegraphy in order to prevent or detect offences committed using a UA. This is in recognition of the fact that those organisations are best placed to assess whether it would be necessary and proportionate to use counter-UA technology in relation to the relevant area.
46. The Act amends section 93 of the Police Act 1997 to permit the Civil Nuclear Constabulary (CNC) to apply for authorisations under Part III of the Police Act 1997 in relation to counter-UA activity. Currently the CNC is not listed in the relevant schedule of the Police Act 1997, and so the CNC is not able to self-authorise the use of counter-UA technology. The amendment gives the CNC the same powers available to all other police forces to respond to a UA incident and thereby enhances the protection of civil nuclear licensed sites.
47. The Act further amends section 93 of the Police Act 1997 to make provision for "prison authorisations". In respect of prisons, the "authorising officer" may be a member of senior management for prisons in England and Wales who is designated for this purpose by the Secretary of State. There are also equivalent changes in relation to Scottish and Northern Irish custodial institutions.

Legal Background

48. Schedule 8, paragraph 11 of the Act amends section 93 of the Police Act 1997 to insert a second limb (in addition to "serious crime") under which property interference and wireless telegraphy interference authorisations can be obtained by the named public authorities to cover the use of a UA in relation to a "relevant offence" (defined in paragraph 11(5) which covers certain offences in the ANO 2016, Aviation and Maritime Security Act 1990, Prison Act 1952 and equivalent legislation and/or common law offences relating to prisons in Scotland and Northern Ireland). The effect of this amendment of section 93 will be to expand the range of circumstances in which technology designed to counter-UA can be used to prevent UA being used to commit offences. Paragraph 11 of Schedule 8 also adds both the CNC, and members of senior management for prisons in England and Wales (and equivalent civil servants in Scotland and Northern Ireland) exercising their duties in relation to the relevant institution in the case of a prison authorisation, to the list of public authorities who can apply for authorisation to cover the unlawful use of a UA in these circumstances.
49. Schedule 8, paragraph 12 of the Act amends section 94 of the Police Act 1997 to enable a deputy or assistant chief constable in the CNC to authorise the use of counter-UA technology in the absence of the Chief Constable of the CNC, and to enable a member of senior management for prisons in England and Wales (and equivalent civil servants in Scotland and Northern Ireland) to authorise the use of counter-UA technology in the absence of the usual authorising official in the case of a prison authorisation.

Powers relating to the ANO 2016

Policy Background

50. Now that the Implementing Regulation is applicable and related offences are in force in the ANO 2016, UAS operators must register themselves:
    1. when operating any of the following UA within the lowest of the three categories of risk set out in the Implementing Regulation (the open category, as defined in Article 4 of that Regulation):
       1. a UA with a MTOM of 250g or more which can transfer at least 80 Joules of kinetic energy to a human on impact, or
       2. a UA equipped with a sensor able to capture personal data that is not classified as a toy.
    2. when operating in the second of the three categories of risk set out in the Implementing Regulation (the specific category, as defined in Article 5 of that Regulation).
51. Remote pilots flying a UA in the open category must comply with any relevant competency requirements set out in the Implementing Regulation and remote pilots flying a UA in the specific category must comply with the competency requirements set out in the consent from the CAA for the operation (the relevant operational authorisation, light UAS operator certificate ("LUC") or model aircraft club authorisation).
52. Prohibitions and offences relating to these registration and competency requirements and also new requirements in relation to tethered small UA were inserted in the ANO 2016 in December 2020 and duplicate or contradictory provisions were removed.
53. These measures aim to improve the education and accountability of UA users and the powers in the Act for constables to require proof of UAS operator registration or remote pilot competency will assist enforcement of these requirements. The powers will also help constables to enforce other ANO 2016 requirements by giving them the power to require production of evidence of any "relevant consent" from the CAA or any exemptions in relation to a provision of the ANO 2016 that apply to a particular flight. The power in the Act for a constable to inspect a UA will enable them to establish whether the above powers in relation to UAS operators and remote pilots are exercisable.

Legal Background

54. Schedule 9 of the Act refers to offences under the ANO 2016 and related requirements and creates police powers which can be exercised in relation to them. The articles of the ANO 2016 to which this Schedule relates are:
    1. Article 94A- Permissions for flights over or near aerodromes;
    2. Article 265A(1)(b)- Operational authorisation, LUC with appropriate privileges, or authorisation;
    3. Article 265A(1)(c)- Certification of UAS and UAS operator;
    4. Article 265A(5)(a)- Open category: registration of UAS operator;
    5. Article 265A(5)(b)- Open category: display of UAS operator’s registration number;
    6. Article 265A(6)(a)- Specific category: registration of UAS operator;
    7. Article 265A(6)(b)- Specific category: display of UAS operator’s registration number;
    8. Article 265A(7)(a)- Specific category: registration of UAS operator;
    9. Article 265A(7)(b)- Specific category: display of UAS operator’s registration number;
    10. Article 265A(9)(a)- Specific category: registration of UAS operator;
    11. Article 265A(9)(b)- Specific category: display of UAS operator’s registration number;
    12. Article 265B(1)(b)- Operational authorisation, LUC with appropriate privileges, or authorisation;
    13. Article 265B(1)(c)- Certification of UAS and UAS operator;
    14. Article 265B(5)(b)- Open category: having the appropriate competency in the intended sub-category of flight;
    15. Article 265B(5)(c)- Open category: carrying proof of competency;
    16. Article 265B(7)(b)- Specific category: having the appropriate competency;
    17. Article 265B(7)(c)- Specific category: carrying proof of competency;
    18. Article 265B(8)- Specific category: having the appropriate competency specified in the authorisation relating to the flight;
    19. Article 265E(1)(a)- Registration of tethered small UA of 250g or more;
    20. Article 265E(1)(b)- Display of registration number of tethered small UA aircraft of 250g or more;
    21. Article 265E(2)(b)(ii)- Tethered small UA of 250g or more: competency;
    22. Article 265E(3)- Tethered small UA: permission from CAA;
    23. Article 266- Exemption from Order.

Fixed penalty notices

Policy Background

55. FPNs provide an alternative means of enforcement in relation to offences. The use of FPNs reduces the burden on the courts and police, because a person who is issued an FPN and pays it within the required time frame will not be subject to the court process and associated costs that are incurred when a person is prosecuted. FPNs were proposed in the consultation, "Taking Flight: The Future of Drones in the UK" and received strong support from respondents for their introduction for minor offences relating to UA.
56. Whilst the Act provides the power to constables to issue FPNs for offences relating to UA, future secondary legislation will designate which offences are appropriate for an FPN. It is the Government’s intention that FPNs will be available to use for less serious offending only – for example, where a person had flown too close to uninvolved people but not caused, or intended to cause, any harm. The Department for Transport has developed a list of situations where issuing an FPN would not be appropriate e.g. where a person has endangered any other aircraft. These are reflected in the conditions for issuing an FPN, which have been incorporated into paragraph 1 of Schedule 10 to the Act. This will ensure that for more serious offending an FPN would not be issued and prosecution through the courts would take place instead.

Legal Background

57. Payment of an FPN is not an admission of guilt and payment of an FPN allows a person to avoid prosecution in relation to the offence.
58. Schedule 10 refers to the Magistrates’ Courts Act 1980 and provides in paragraph 9(15) that section 85 of that Act, which gives the power to remit a fine in whole or in part, applies to a sum registered in a magistrates’ court by virtue of paragraph 9. Section 85 of the Magistrates’ Courts Act 1980 provides that where a fine has been imposed on conviction of an offender by a magistrates’ court, the court may at any time remit the whole or any part of the fine. This may only be done when the court thinks this is just, having regard to a change of circumstances which has occurred in certain circumstances set out at section 85(1).