Blakiston

This is my letter to my MP regarding the Drone Bill in advance of when it eventually makes it back onto the legislative programme. I address a number of concerns that I have relating to PfCO holders (commercial drone users) and how that interrelates with Police Powers.

My aim is to get the law amended to properly protect PfCO holders as they would be treated the same as nefarious drone users. If you are a PfCO holder or have an interest in helping this nascent industry grow, please share or copy and paste the letter into “writetothem” on the web (you have royalty free licence to do so!), which will find your MP for you. There are over 5000 registered PfCO holders in the UK.

My belief is that everyone in the industry should be heard and the initial consultation that informed this draft law could have cast a wider net.

Dear Mr Nicolson,

Re: Air Traffic Management and Unmanned Aircraft Bill [HL] 2019 (“the Drone Bill”)
Introduction

I am writing to you as I have genuine concerns that the Drone Bill as it is currently written does not properly represent my interests as a holder of a “Permission for Commercial Operations (PfCO).” The current Drone Bill’s passage was halted because of last year’s general election and made it as far as the first reading of the House of Lords on 22 October 2019. On reflection, it is abundantly clear that the Drone Bill requires further amendment before it commences its journey through both Houses as it is inadequate in many respects.

Summary of the Drone Bill

This is a Bill to make provisions about airspace change proposals and about the licensing regime for air traffic services under Part 1 of the Transport Act 2000, to confer police powers relating to unmanned aircraft and requirements in Air Navigation Orders and to provide for fixed penalties for certain offences relating to unmanned aircraft.

What is a PfCO?

The permission is issued by the Civil Aviation Authority to a drone pilot following extensive assessment of theory and practical ability that allows a drone pilot to fly drones commercially. Upon successful completion of the assessments, a drone pilot must submit a detailed Operations Manual to the CAA that governs every aspect of safe drone operations. This Operations Manual must be approved by the CAA in order for a drone pilot to be granted a PfCO. For the avoidance of doubt, ‘drones’ are also referred to as unmanned aerial systems (UAV’s). The significance of the PfCO is that it allows a drone pilot to operate at reduced distances when flying, which would not be apparent to the police.

As of 16 January 2020, there were 5,665 permit holders registered in the UK. This list of permission holders includes FTSE companies, manufacturers, universities, and drone companies amongst many others. I respectfully submit that The Drone Bill has been significantly influenced by the UK’s Counter-Unmanned Aircraft Strategy white paper and/or the singular example provided in the Taking Flight report to deal with reckless drone users. It is clear that the offences that have been included in the Drone Bill were directed for others, but not PfCO holders; and yet no protection is offered to PfCO holders.

The Issue

The tension under the Drone Bill is between the powers provided to the Police and PfCO holders specifically.

The Police shall be entitled to treat PfCO holders with the same powers that they would treat for example, a criminal attempting to smuggle contraband into prisons utilising a drone or a drone user that is non-compliant. This cannot be right. This is not in the interests of an industry that is developing and evolving at a significant pace and will ultimately stifle innovation and skill development amongst many other things. You are no doubt aware of reports that demonstrate the benefits of professional drone use to the UK economy.

The UK cannot afford to have a reputation for adversely affecting this industry’s development by virtue of the zealous use of police powers to curtail its development. This, I suggest, is one of the reasons why Australia’s CASA has delayed registration. By contrast, many other well developed ‘drone’ jurisdictions have not implemented such onerous powers that affect PfCO holder equivalents or at all; and the regulator have not suffered accordingly.

Example 1:

The law as it is currently written means that a police office can approach a drone pilot whilst the drone pilot is flying a UAV. The drone pilot is flying under its approved Operational Manual (approved by the CAA) and in accordance with Articles 95 must maintain a 30m distance from uninvolved persons for take-off and landing of a UAV (“zone”). The Drone Bill is silent on many fundamental issues, such as:

What happens when the Police Officer enters this zone?

What happens when the Police Officer requests the drone pilot to land the UAV? Failure to comply means that the pilot is automatically guilty of an offence and is liable to summary conviction.

What happens when the drone pilot attempts to land the UAV at an alternate landing zone because the police officer refuses to move outside of the 30m take-off and landing zone?
Who takes responsibility under Art 241 (not to endanger persons) when or if the drone collides with the police officer or others?

Does the drone pilot get prosecuted under Art 241 as it is considered a relevant ANO offence?

Does the drone pilot get prosecuted under another Article as it is considered a relevant ANO offence?

How is the matter reported to the CAA?

What is the position if the PfCO holder has a criminal record as a consequence of a fine or otherwise?

Example 2:

Let’s take this further, under the police powers, the Police Officer requests the evidence to demonstrate that the pilot has passed the registration test to establish the Flyer ID and/or the Operator ID and wants to see the UAV’s registration, whilst the drone pilot is flying. The drone pilot refuses because the drone pilot is flying and would be in breach of CAA regulations for not maintaining visual line of sight with the drone. Under the Drone Bill, that refusal could be taken as evidence for not complying with a Police Officer’s lawful instruction.

The Police Officer is then entitled to confiscate the PfCO’s drones and equipment;

The PfCO holder was intending to use the same drones and equipment for its clients but is no unable to do so. Who is responsible for such loss and damage?

The Police may be able to keep the equipment for as long as is necessary. Should the Police be responsible for the costs associated with retrieving the equipment from the Police as an application can only be made to a judge in a Crown Court?

Drone Bill

The current Drone Bill clearly does not address the concerns of PfCO holders as exemplified by two very brief examples above. The Drone Bill can be amended very easily and take account of the needs and requirements of this nascent industry, which is so important in establishing the UK as a market that supports this technology. The Drone Bill needs to exempt current PfCO holders or provide sufficient consideration to current PfCO holders (and its equivalent from June 2020 when EASA regulations are incepted) as the PfCO holders are:

Already managed by the CAA, who have the power to amend, suspend or revoke a PfCO holders’ permission at any time;

Already under a separate obligation to report incidents through Mandatory Occurrence Reports (MOR’s) through the ECCAIRS portal;

Often obligated to their insurers as an as an MOR may be required in the event of a claim. This is a financial incentive to operate correctly;

That a PfCO holder must maintain adequate insurance, unlike a hobbyist or nefarious drone user;

Are more informed by skills, knowledge and experience and are more likely to report other drone users who are acting illegally;
The CAA can still leverage a criminal prosecution against a PfCO holder for contravening the ANO.

Conclusion

It is clear that the Drone Bill, if it comes to pass, will not be conducive to the development of such an important industry. There is such a reliance on the fact that the Police will have the requisite education to be able to determine how to implement its powers, which are at the very least draconian when applied to PfCO holders. I am not against police powers per se, but as with any power, there must be a balance of the scales; and it is currently weighted in favour of the police.

There is great reliance on the fact that a Police Officer (whether on the ground or in any police station) must be able to as a minimum:

be able to understand all relevant provisions within the Air Navigation Order 2016 and (Amendment) 2019;

re able to recognise a certificate of registration document; recognise documentation, any other information or evidence that is of a description specified by the Secretary of State;

at any police station recognise required information, documentation or evidence within seven days and record the same;

inspect a UAV (possibly for Operator ID, but not clear!);

recognise evidence of a relevant ANO exemption;

recognise evidence of a relevant ANO permission;

understand what is ‘reasonable force’ for the purpose of conducting an inspection.

In my respectful submission, the above is not realistic nor achievable, and shall have a detrimental effect on all PfCO holders. The legislation was aimed at dealing with drone users that smuggle contraband into prisons or those that fly consistently over congested areas.

Recommendation

I recommend that PfCO holders, who are regulated by the CAA and have a current Permit are exempt from such regulation, or in the alternative, are provided with necessary recognition under the Bill that reflects the concerns illustrated above.

I trust the above is clear and would value your unconditional support in putting forward any amendment necessary to properly reflect the PfCO holder in the UK. Given my background with the CAA and as a barrister, I am happy to engage with the DfT at the right level.
Yours sincerely,

Mr Richard Ryan, barrister
(PfCO holder and studying drone law at PhD level)

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