S.I. 2007/274: memorandum from the Department for Transport

Air Navigation (Amendment) Order 2007 (S.I. 2007/274)

By a letter dated 7th March 2007 the Committee has asked for a memorandum on the following point -

New paragraphs 5(2)(a)(v)(bb) and 5(15)(a)(v)(cc) of Schedule 4 to the Air Navigation Order 2005 (inserted by article 4(11) and (13) of this Order) appear to apply from 1st January 2007. Explain whether this apparent retroactive application is intended and, if so, how this is authorised by the enabling legislation.

At the time this Order was drafted by the Civil Aviation Authority, it was anticipated that it would come into force before the end of 2006. It was not however desired to bring the requirements now set out in paragraphs 5(2)(a)(v)(bb) and 5(15)(a)(v)(cc) of Schedule 4 into force until 1st January 2007. The reason for inserting the date in these new paragraphs was, therefore, to ensure that the requirements did not come into force any sooner than 1st January 2007.

For various reasons, the Order will not now come into force until 15th March 2007. It was not intended that any part of the Order should have retrospective effect. The reference to 1st January 2007 in these provisions ought therefore to have been omitted. The need to do this was overlooked and the Civil Aviation Authority and the Department apologise for this oversight.

It might be argued that on their proper construction the requirements now set out in paragraphs 5(2)(a)(v)(bb) and 5(15)(a)(v)(cc) of Schedule 4 would not come into force until 15th March 2007 in any event. Nevertheless, in order to put the commencement date for these new requirements beyond doubt the Civil Aviation Authority intends to prepare another Air Navigation (Amendment) Order as soon as possible. However, it is acknowledged that such a future amendment will not have any substantive effect as regards the position in the period 1st January to 15th March.

Department for Transport

13th March 2007