31 March 2017

Brexit and Aviation Exits

'Brexit and the British Bill of Rights' by Tobias Lock, Tom Daly, Ed Bates, Christine Bell, Kanstantsin Dzehtsiarou, David Edward, Murray Hunt, Kagiaros Dimitrios, Fiona de Londras, Cormac Mac Amhlaigh, Christopher McCrudden and Anne Smith considers 'the mechanism and consequences of the United Kingdom’s exit from the European Union (‘Brexit’) and the plan to establish a British Bill of Rights'.

Its key points are:
  • The issue of consent regarding the initiation of Article 50 of the Treaty on European Union (TEU) to formally trigger the Brexit process under EU law is highly complex, relating to five cross-cutting dimensions: 
    (i) the involvement of the UK Parliament in the Brexit negotiations; 
    (ii) the consent of the Norther n Ireland Assembly to Brexit; 
    (iii) the consent of the Scottish Parliament; 
    (iv) the need for unanimous agreement by all EU Member States should the UK wish to reverse the triggering of Article 50; and 
    (v) the possible need to obtain the consent of the Republic of Ireland to Brexit as a fundamental alteration of the Good Friday Agreement. 
  • Brexit presents a clear reduction in formal protection of fundamental rights in the UK through discontinued application of the EU Charter of Fundamental Rights and Freedoms; 
  • Whether this reduction in rights protection can be addressed by other measures at the national level, particularly the inclusion of ‘lost’ EU Charter rights in a British Bill of Rights, is questionable; 
  • Brexit, a BBR, and other related policy pledges seeking to reduce the application of international human rights law to UK actors, taken within the current context and their likely consequences, represent a weakening of the human rights protection framework as a whole – a certain ‘disentrenchment’ of human rights, reversing the decades-long trend toward incremental expansion in the right protection afforded to individuals across the UK. 
  • Various existing government policy proposals aimed at ‘freeing’ the UK from intervention of the European Court of Human Rights appear to be rooted in misconceptions concerning the nature of the ECHR and international human rights law more generally. 
  • Regarding plans to repeal the Human Rights Act (HRA) and its replacement by a British Bill of Rights (BBR), this would not free the UK from its obligations to comply with the judgments of the European Court of Human Rights in cases where the UK is a respondent party. In fact, it might lead to an increase in the number of successful applications to the Strasbourg Court, diminish the possibility for meaningful dialogue between the Strasbourg Court and the British courts, and thereby amplify rather than lessen the impact of Strasbourg case-law. The only viable way to remove such obligations is for the UK to denounce (leave) the European Convention on Human Rights (ECHR). 
  •  Repeal of the HRA, its replacement with a BBR, and other related policy pledges seeking to reduce the application of international human rights law to UK actors, all ultimately appear to set a path toward withdrawal from the ECHR.
  • In this connection, it was noted that UK withdrawal from the ECHR system would be likely to lead to withdrawal from the Council of Europe, which would significantly undermine the UK’s reputation as a state that cares about human rights protection. The UK would be only the second country in Europe which is not a member of the Council of Europe; the other being Belarus with its very problematic human rights record.
  • Withdrawal by the UK would rep resent the first time a long-established Western democracy has left a major international human rights regime. Such a move would place the UK in the company of Greece under military rule in December 1969, when it left the ECHR system and Council of Europe, or more recently, Venezuela under Hugo Ch├ívez, which denounced the American Convention on Human Rights in 2012 in order to leave the jurisdiction of the Inter-American Court of Human Rights. 
  • Brexit poses real threats to the fragile peace in Northern Ireland, given that EU membership is central to the Good Friday Agreement, and given that EU law is dominant in areas that are clear ‘flash points’ for discord between the parties in the consociational government, such as equality legislation. 
  • Plans for repeal of the HRA, its replacement by a BBR, and other related policy pledges, pose threats not only to rights protection in the UK, but also to the rights protection (albeit limited) provided by the ECHR system in other states of the Council of Europe, given that UK withdrawal from the ECHR would be likely to trigger withdrawal by other states, such as Russia and Azerbaijan. 
  • The most fundamental conclusion from the workshop is that the current governmental approach to Brexit and a British Bill of Rights does not adequately appreciate, or address, the extraordinary complexity of human rights protection in the UK, which enmeshes protections across the international, EU, State, devolved, and bilateral planes. Until, and unless, policy formation begins to fully grapple with this complexity, serious rule of law and legitimacy questions will hang over the solutions presented by the Conservative government to the current constitutional entanglement.
The Airport and aviation security report by Senate Rural and Regional Affairs and Transport References Committee notes concerns regarding the Aviation Security Identification Card, including claims that 20% of airport staff with access to aircraft have criminal convictions (half of those being for serious crimes such as drug trafficking and assault).

It states
Chapter 2 examines the numerous reports and inquiries undertaken since 2002 investigating airport security issues, and the responses and actions that have been implemented following these reports. Of particular interest to the committee is the progress and implementation of the 2005 Wheeler Review recommendations. 
Chapter 3 examines a number of serious issues around passenger security screening at airports that emerged from evidence received as part of the inquiry, including the use of subcontractors for screening services at airports. It also considers reports regarding security systems in place at Sydney Airport, including potential vulnerabilities in Australia's aviation security framework. 
Chapter 4 examines matters arising from the Seven Network television report on aviation security that led to the referral of this inquiry. In particular the chapter considers whether the FOI process that informed part of the media reports led to a decrease in the voluntary reporting of security incidents to the department by industry stakeholders. . 
Chapter 5 considers the Aviation Security Identification Card (ASIC), the numerous reviews and reforms undertaken of the scheme, and potential shortcomings of the card, with impacts on airport security. This chapter also examines the related Visitor Identification Card (VIC) and issues with this program. 
Drawing on the evidence received by stakeholders and obtained by the committee as part of its inquiries, Chapter 6 considers the current programs underway to secure Australia's airports, and possible future areas for improved security measures. It evaluates whether, in light of incidents reported in the media and through   various reviews of airport security, the current security framework is adequate. It also considers the costs that may be involved in amendments to that framework.
The Committee recommends that
  • any future reviews of and amendments to aviation security regulation be risk-based and fit for purpose, with consideration given to the unique challenges faced by regional and rural airports and the overall diversity of Australian airports. 
  •  the Inspector of Transport Security complete and publish its review into aviation security training and education as soon as practicable. 
  •  the Department of Infrastructure and Regional Development develop a framework to ensure that subcontracted screening bodies have appropriate employment standards and provide security training and services consistent with those provided by screening authorities under the Aviation Transport Security Regulations 2005. The framework should take into account any inconsistencies in the training and education as identified by the Inspector of Transport Security. 
  •  the Australian Government amend the Aviation Transport Security Act 2004 to make it compulsory for aviation industry participants to report information currently captured under the voluntary reporting scheme. 
  •  the Australian Government review the feasibility of establishing a centralised issuing authority for Aviation Security Identification Cards. 
  •  the Australian Government consider the development of a national automatic notification system for aviation-security-relevant offence convictions of Aviation Security Identification Cards holders. 
  •  the Department of Infrastructure and Regional Development update the committee early in 2018, on progress and outcomes, following implementation of Stage Two of the Visitor Identification Card enhancements.
  •  the Australian Government consider mechanisms, including legislative amendment, to strengthen the Visitor Identification Card process, incorporating appropriate background checking where appropriate. 
  •  the Australian Government implement the regional aviation security awareness training package, in accordance with its 2015 commitment. 
Senator Xenophon commented
The inquiry drew out a number of issues in relation to aviation security. 
The first of these issues relates to security screening of passengers as they enter the airport. Evidence was presented to the committee that shows that current screening does detect contraband, but that there are holes. Examples were provided of prohibited objects discovered after passengers had boarded planes; objects including knives, tools (such as screwdrivers and pliers), scissors and box cutters, pepper spray, tasers and bullets. Problems identified by the committee in respect of screening included screening processes, the use of subcontracted security staff and inadequate staff training. Mr Kessing indicated that screening also lacks appropriate intelligence analysis, which has served other countries well. 1.10 The second issue relates to mandatory and voluntary reporting of ‘unlawful interference’ with aviation safety. The committee was presented with evidence to show that some in industry had a reluctance to make voluntary reports. 1.11 The third issue relates to the issuing and use of ASICs and VICs. The evidence provided to the committee, particularly the evidence of Mr Kessing, showed significant problems in relation to the ASIC and VIC vetting process – with up to 20 per cent of all non-Customs staff (i.e. baggage handling, cleaners, screening staff, aircraft catering etc.) with access to the sterile areas having criminal convictions, and about half of those were serious convictions, including drug trafficking, assault and the other misdemeanours. The vetting process is decentralised and has no notification scheme for an ASIC holder who may have been subject to a conviction after the card has been issued. /