had not been laid before theTrinidad Parliament. Since CivilAviation subordinate legislationpurports to be enforceable bycriminal proceedings (that is, you getpunished if you break it), it occupiesthe same position. In a remedial case,though, some latitude would beallowed, such as where a person wasbeing refused a licence which wouldenable a living to be earnt becausethe law had not gone through theproper procedure—righting a wrong,in other words.InterpretationExpressions in subordinatelegislation have the same meaningsas those in the Act behind it, unlessthere is a clear statement otherwise,so you can’t use “ordinarymeanings” as with normal statute. Infact, interpretation must be done interms of:·
a combination of the commonlaw rules for interpretation ofstatute·
the particular enabling Acts, and·
the context of the regulationconcernedusing the Interpretation Act 1978 as aguide, not the circumstances of thecase. This is because legislationcannot necessarily be taken to meanwhat it says because it may be badlydrafted, leaving the law open tointerpretations the enabling Acts donot permit, from which injusticecould result (Commissioners' Decision1/74). As far as we are concerned,the first interpretation is made in thecockpit. You (as Commander) havethe final authority as to thedisposition of your aircraft (ChicagoConvention Annex 2 Chapter 2, asembodied in the Civil Aviation Act1982), while you are in command,therefore your word is law untiloverturned by judicial review on anapplication made within 3 months bya person with a lawful interest.In the case of any dispute, thequestion of interpretation is alwaysprimarily a matter for the HighCourt, because a magistrate’s courttends to concern itself with fact andnot law (that is, as to whether a caseshould be brought in the first place),with the above methods of guidancebeing used as support in case ofambiguity. Any judgements resolvingthis would probably take place inaccordance with the spirit of the law,that is, what, in the judge's opinion,was the presumed intention of thosewho made it. Provided a literalinterpretation isn't absurd, then itapplies regardless of anyinconvenience it may cause (subjectto the doctrine of precedent).Legal Stuff 275PrecedentLaw arises from these judicialinterpretations as well, becausenotice is taken of them in laterproceedings, depending on the statusof the court in which they weremade. Interpretations made in theHouse of Lords (which is the highestcourt in the land) are binding on anylower courts, but not the other wayround—what a Crown Court may
think has no bearing on the House,although it does in Magistrate'sCourts, which are lower in status.This is known as judicial precedent,which, naturally, must be writtendown somewhere otherwisedecisions would get forgotten, hencethe expression case law. The idea isthat, once a legal issue is resolved, itdoes not need to be reconsidered inlater cases where the facts aresubstantially similar - the court mustuphold earlier decisions if there isnothing unique or different from theone being decided.In short, regulations under CivilAviation subordinate legislation aresubject to the same Parliamentarycontrol as the enabling powers andmust be interpreted and applied inaccordance with them.The above is similar in Canada.Decisions of the Supreme Court ofCanada are binding on all lowercourts but, since 1982, it has almostwholly restricted itself to hearingcases concerning alleged breaches ofindividuals’ charter rights. Thesealways arise in criminal cases wherean individual faces imprisonment,which is not the case for violationsof the Aeronautics Act andRegulations.SummarySo, to summarise, whether a lawaffects you or not depends on:·
The validity of the law itself·
If it's valid, whether it'senforceable·
Whether it's been interpretedcorrectly in the circumstances·
Whether the court actually hasjurisdiction.This is true in Canada as well, exceptthat the procedure to determinevalidity varies and the only invalidAct of Parliament would be onewhich is unconstitutional in itsentirety.With reference to jurisdiction,Section 99 (3) of the 1982 Act saysthat (for the purposes of conferringjurisdiction) any alleged offencesunder the ANO or Section 81 donot take place in an actual place, butonly in a deemed place, which meansthat cases can be heard at selectedplaces, to give some flexibility wherea British registered aircraft actsdangerously towards a Dutch ship ininternational waters, where thejurisdiction can therefore be given tothe place where the offender iscaught – the best example of thiswas the Lockerbie trial, where aScottish Court was convenedabroad. This point is also useful toyou, in that it means you may nothave to go to the court nearest to theplace you're supposed to havecommitted the offence, but couldchoose by manoeuvre somethingmore convenient, like where yoursolicitor lives, or where the juries aremore friendly.276 Operational FlyingTalking of Scottish Courts, be awarethat Scottish Law is based on RomanLaw (as is the law in France, whichaffects the law in Quebec) and
therefore different in many waysfrom the rest of the UK.NegligenceThe Common Law imposes on everycitizen a duty of care to otherpeople. Unfortunately, there is nostandard as to how much care isreasonable but, in aviation cases, youmay find that your duty is absoluteand anything, however remote, willbe judged as forseeable. Also, juriesgenerally consist of people whohaven’t a clue what aviation is allabout, and probably think thatplanes or helicopters are a painanyway, so behave accordingly (theywill certainly be aware that aviationcompanies are required to carry lotsof insurance, even if its existence isnot strictly relevant to a court).UK Air Transport LawAlthough you are usually concernedwith law that affects you as a pilot,Air Transport Law in the UK ismade in the same way as any other,by a mixture of Common Law, Actsof Parliament and subordinatelegislation which sometimesimplement international agreements(see later). Where the question ofinterpretation arises, reference issometimes made to Road Transportin comparison, especially forproduction of licences.The Civil Aviation Authority wascreated as a statutory body corporateby section 1 (1) of the Civil AviationAct 1971, which is now Section 2(1)of the Civil Aviation Act 1982.Under this Act, which receivedRoyal Assent on 5 August 1971, theAerospace Minister for the timebeing in office was made responsiblefor the organisation anddevelopment of Civil Aviation in itsmany and varied aspects.Thus, the CAA actually came intobeing in early 1972, combining underone Authority functions previouslycarried out by various organisationssuch as the Board of Trade, the AirRegistration Board and the AirTransport Licensing Board. In fact,up till the mid-30s, civil aviation wascontrolled by the Air Ministry, whichnaturally concentrated on militaryneeds. In 1936, the ARB was formedfrom various interested parties – itwas actually a limited companywhich had permission to drop theword from its title. The ARBsubsequently became theAirworthiness Division of the CAA.As a corporate body (which as anentity only consists of its BoardMembers, or the equivalent ofshareholders in a Limited Company,acting collectively), the functions ofthe CAA are specified in the statutecreating it. The 1971 Act wasrepealed and replaced by The CivilAviation Act 1982, which was aConsolidation Act, not debated inParliament (actual changes to the1971 Act would have been done by aCivil Aviation (Amendment) Act1982, a subtle difference).The manner in which the CAA is toperform its functions is given inSection 4. The regulation of thecarriage of passengers for rewardtakes place under Section 64. Section60 authorises things to be done byAir Navigation Order, which maypass functions on to the CAA, butthis is not mandatory. Section 2 (4)Legal Stuff 277points out that the CAA is not to beregarded as a servant or agent of theCrown, but section 20 (2) allows it toact on behalf of the Crown in clearlyspecified cases.There was an oversight inestablishing the CAA, in that theARB (a company limited byguarantee, which carried out many ofits functions previously) was subjectto the jurisdiction of theParliamentary Commissioner,whereas the CAA is not. Thisincreases the difficulties of gettingredress for wrongs committed.Para 2 of Pt III of Sch 13 to the CivilAviation Act, 1982 permits a statutoryinstrument carrying the title AirNavigation Order to make incidental,supplementary or transitionalprovisions. Here is a list of functionsthat may be conferred on the CAAby (or under) an Air NavigationOrder, from Section 3 (c):·
Registration of aircraft·
Safety of air navigation andaircraft (including airworthiness)·
Control of Air Traffic·
Certification of operators ofaircraft·
Personnel Licensing·
Noise Certification·
Certification of airworthiness ofaircraft·
Licensing of aerodromes
·
Approval of persons andequipment·
Approval of schemes for theregulation of flight times·
Validation of any certificate orlicenceOther functions were later added,such as receiving of MORs.However, there seems to be nothingthat permits an ANO to specify whoenforces it. There is also somequestion as to whether the provisionfor an ANO is actually made underpowers granted by Section 60, whichmeans it is not an ANO as defined,and may not be enforceable. Notealso that, although the ANO mayprohibit you from engaging in AirNavigation, certain activities arenothing to do with the subject, asthey take place outside chockson/chocks of (or rotor start torundown). Filling in Tech Logs isarguably one.Anyway, as the above functions arespecified by subordinate legislation,there is no power to be concernedwith anything not mentioned. Thereare two reasons for this.The first is that those activitieswould be ultra vires anyway, and thesecond concerns the CAA beingfunded by charges schemes, that is,other peoples' money. Funds utilisedfor anything not authorised areimproperly used, technically beingmisappropriation of funds. At first sight,it might seem that the CAA coulduse its funds to bring prosecutions,but the problem is that prosecutions(criminal ones, anyway) are broughtby the Crown (R v Fred Bloggs, forinstance) so these activities wouldhave to be specifically allowed underthe terms of sect 20 (2) of the CivilAviation Act 1982. The bringing ofcriminal prosecutions has not beenconferred on the CAA by ANO, andit cannot be because it is not listed in278 Operational FlyingSection 3 of the Civil Aviation Act1982 as a conferrable function (seeabove). Anyway, Section 2 (4)declares that the CAA is not to beregarded as an agent of the Crown.Close inspection of Section 2 alsodiscloses that the CAA is a juristicperson (e.g. artificially created),meaning that it is very definitelysubject to the ultra vires doctrine, sothe burden of proof falls upon thatperson to prove its right to doanything, the reverse position of anatural person, who is innocent untilproven guilty—the end result of thisis that an offence must be provedbeyond reasonable doubt in every respectbefore a prosecution brought by ajuristic person can be upheld againsta natural one (i.e. you).Any natural person (say aninvestigator) laying informationbefore a court on behalf of a juristicone (say, the CAA) must be dulyauthorised. This is Rule 4 (1) of theMagistrates Courts Rules 1981,which is in fact an instruction toofficers of those courts to ensurethat such is the case. If he's foundout then (or later) not to beauthorised for any reason, then the
person who laid the informationcould actually be considered to bethe prosecutor, which means thewrong person is on the charge sheetand possibly without properauthority to bring charges anyway.The ANO consists of Articles andSchedules, the latter beingamplifications of the former, sowhere an Article would require anaircraft to carry markings, the relatedSchedule would spell out how theyare to be made and positioned.Authorised PersonsAn Authorised Person is one whohas been given authority by the CAAto perform certain functions on itsbehalf. Paragraph 15 of Schedule 1to the Civil Aviation Act 1982 permits the CAA to authorise anymember or employee of it to do so.Because of the constraints ofsubordinate legislation, the activitiesof Authorised Persons must berestricted to those within the CAA'sresponsibility, that is, those inSection 3 of the enabling Act.CAA Resolution 21, dated 5 June1975, notes that a quorum forauthorising anyone to performfunctions on its behalf is onemember (a quorum is a minimumnumber of people). Therefore, aminimum of one member of theBoard of the CAA must form aBoard Meeting to do this. Thus, theappointment of an AuthorisedPerson must be made by at least oneperson authorised to authorise, so tospeak, be it a Board Member orsomebody duly delegated. If the cardcarried by the AP does not carry anyproper indication that the authoriserwas in fact so authorised then it maynot be valid (this may sound like acheap point, but as the CAA is not anatural person in its own right, itsrange of action is limited withoutproper procedures).To enable it to be produced in Courtas part of a case, that is, to beadmissible evidence, a document mustbe properly authenticated.Paragraphs 16 and 17 of Schedule 1(of the 1982 Act) provide that adocument received in evidenceshould have the seal of the CAA onit, and that the seal itself is not validunless authenticated by the signatureLegal Stuff 279of the Secretary of the CAA (orsomebody duly authorised by theBoard). In the light of this, unless adocument carried by an alleged APhas such a seal and signature on it,and is dated because it is subordinatelegislation, there may be no proof(acceptable to a court, anyway) thathe is in fact an AP, and thereforeprobably should not have wastedyour time asking all those questionsin the beginning.A constable is an Authorised Person,but don't forget to ask for hiswarrant card or note his collarnumber (every policeman has one,including detectives, so don't letthem tell you otherwise). Apoliceman in full uniform is properlyappointed, but if he's not wearing ahat, or his buttons are undone, hisauthority is in question (a motoristwas stopped by two policemen
without hats, and the charges werethrown out). He may be from plainclothes, of course, but "constable" inthe normal sense doesn't usuallymean "detective".StatementsStatements (made by you) can causea problem, especially with referenceto your Common Law Right ofSilence. If given, a statement shouldgive all relevant points, not just answersto the investigator's questions, whichmay only reflect what he wants tohear. What is actually relevant isnaturally open to argument, which iswhy you should either have expertassistance or stay silent. Where a juryis allowed to take notice of yoursilence, you could explain that youwere not convinced that such pointswere being covered.As nothing generally happens exceptby agreement (which means acontract is formed), there is animplication of confidentialitybetween you and the interviewer,essentially meaning that all that isdiscussed by yourselves should notbe relayed to third parties—thisincludes within the CAA, as theymake copies of everything.InterviewsThese are inquiries to which certainrules of procedure will apply, on topof natural justice. "Statutory Inquiry"is actually defined (in the Tribunalsand Inquiries Act 1971) as "aninquiry or hearing held or to be heldin pursuance of a duty imposed by aprovision contained in, or havingany effect under, any enactment".According to Sections 7 (2) and 7(3)(c) of the 1982 Act, the CAA is inall civil proceedings a Tribunalsupervised by the Council onTribunals. Where the CAA requestsan interview, which is a civilproceeding, Regulation 25 (2) of theCAA regulations imposes upon thema duty to disclose certaininformation relevant to thoseproceedings beforehand, whichcould include copies of the evidenceto which the inquiry relates. UnderSection 12 (1)(a) of the Tribunalsand Inquiries Act, it is the CAA'sduty to furnish a written statementof its reasons for an inquiry if sorequested at the time notice of theinquiry is given.In Canada, tribunals come underSection 29 (1) of the Aeronautics Act.Boards of Inquiry are establishedunder Part I of the Act in severalsections and are subject to the Actsenabling the TSTS.280 Operational FlyingProduction of LicencesThe ANO says that you mustproduce your licence to anAuthorised Person within areasonable time after such a requestfrom them. This request mustobviously be made personally,because you will need to check theircredentials, and because a request tosend your licence somewhere isactually one to "surrender", which isnot the same thing according to the1982 Act. The Act itself specificallymentions "custody", "production"and "surrender" as three separate
things, so the intention clearly is toregard them as such. A "reasonabletime" is as long as it takes to reachinside your navbag in an immediatepost- or pre-flight situation, orwithin five days of the originalrequest, like for driving licences.As the Civil Aviation Act only allowsprovision by the ANO for access toaerodromes and places where aircraft havelanded for the inspection ofdocuments, it’s arguable thatrequests for production are invalid ifdone at your home, for example. Aconstable, of course, can goanywhere within the limits settled bythe Act and the ANO. In practice,anyone wanting to see your licenceswill actually come and visit you ifyou are willing to allow it, but youmay be entitled to payment for yourtime, like any consultant, providedyou give advance notice that therewill be a charge.Log BooksA logbook is your personal andprivate property, not having beenissued to you under the ANO(actually, a Tech Log occupies thesame position). Also, according tothe relevant Article, only two classesof people are required to keep apersonal flying log book:·
Every member of the Flight Crewof a UK registered aircraft.·
Regardless of registration, thosequalifying for licence purposes.The Civil Aviation Act itself doesn'tmention Log Books, except tomention fleetingly that an AirNavigation Order is allowed to makeprovision for things to be done to"documents" other than licences,which presumably includes them.However, since the word "issue" ismentioned in the same breath, andlog books aren't issued to you,maybe it doesn't. In any case, fillingin logbooks is not within theordinary meaning of "air navigation".Actually, the question of logbookscan provide another usefulillustration of how interpretations ofthe law can vary. The ANO says thateveryone required to keep one needsto produce a personal flying logbookif requested to do so within twoyears of the last entry. Simpleenough, at first sight. But......One of the defined classes of personis "every member of the flight crewof an aircraft registered in the UK".The definition of "Flight Crew" (Art129) includes:“…those members of the crew of theaircraft (emphasis mine) whorespectively undertake to act as pilot,flight navigator, flight engineer and flightradiotelephony operator of the aircraft.”It could follow, therefore, that to beflight crew (and therefore subject tothe requirement to produce alogbook, or maybe anything else forLegal Stuff 281that matter) there must be anundertaking at the moment of therequest for production to act as suchon a particular aircraft, but, evenleaving aside that point, once you'vefinished flying and are off duty thereis no longer an undertaking to act as
flight crew, therefore there’s norequirement to produce a logbookwhen requested (in any case, theredoesn’t seem to be a requirement tocarry a log book in flight). In otherwords, as you're only Flight Crewbetween chocks away to chocks on(or rotor start to rotor rundown)that's when the requirement exists—the request to produce should bemade between those times (notethat, in some countries, the timingsare between boarding an aircraftwith the intention of flight to whenthe engines stop).Looked at this way, the logbookreferred to could be merely a recordof undertakings to act as flight crewof a particular aircraft which isclosed after each one and must beproduceable for two years. If so, acopy of the Tech Log for each flightwill do, if it has your name andaddress on it, as per the ANO.It just goes to show how much caremust be taken both in setting uplaws and reading them—that's whyit's a specialised job to draft Acts ofParliament.In Canada, a log book is requiredunder CARs (401.08(1)), for thosewho apply for or hold any flightcrew permit or rating, which alsosets out particulars of what’ssupposed to be in it. Its productionon request then flows from therequirement to maintain one toprove experience and recency.Prohibited AirspaceThis may only be created by theANO itself; the 1982 Act permitsaircraft to be stopped from flyingover such areas as may be specifiedin the Order. It also allows the ANOto provide for exemptions, so, unlessspecified in the ANO, or exemptunder the terms given in it,prohibited airspace does not exist.Mere "notification" of its existencemay not be enough.Commercial Air Transport?WARNING! This is complicatedand causes acute brainfade!Public, or Commercial, AirTransport is defined in the ANO asbeing where valuable considerationis given (or promised) for the carriageof passengers or cargo on a flight (itactually says in the aircraft on that flight,but you know what I mean). Aerialwork is anything else for whichvaluable consideration is given.In addition, it covers anyone oranything that may be carried free onthat flight, not being employees ofany air transport undertaking thatmay be operating it (although itlooks as if it's worded otherwise,company directors and anyoneworking on behalf of the CAA, suchas Authorised Persons and TREs,are employees for this purpose).Thus, if you carry a passenger (say, afriend) on a check flight who is notan employee or a director of yourCompany, it will be regarded asPublic, or Commercial, AirTransport, even though valuableconsideration is not promised orgiven. In the USA, even if you do ajob for charity that only gives you a282 Operational Flying
tax break, and even if you don’t takeadvantage of it, that’s the equivalent.If the valuable consideration allows aparticular person to fly an aircraft,then that is also Public Transport(unless it's being bought on HP or aconditional sale agreement).Presumably this is meant to coverself-fly hire, or maybe trial lessons,since the phrase used is "fly theaircraft" rather than "fly in theaircraft". Although that person maynot be an employee of the operatingorganisation, crews are notpassengers (although they may be forinsurance purposes, so I don't seewhere this one fits in, as CAT onlyexists when passengers or cargo arecarried for valuable consideration).However, these clauses are the onlyones to affect the averageprofessional. Otherwise, in broadterms, you are allowed to win prizesin air races (up to certain limits) andrecover direct costs and a pro ratacontribution to the amount of hoursflown every year if you go to airshows and the like. If a payment ismade to a (registered) charity (withCAA permission) that allowssomeone (maybe a prizewinner) tofly, that is a private flight. Equalcontributions to the direct costs of aflight borne by the pilot if up to fourpersons (including the pilot) fly in anaircraft are exempt, but direct costsdo not mean HP payments,insurance, hangarage.....There must also have been noadvertising for that flight, except inthe confines of a flying club, inwhich case all passengers (over 18)must be members. It also helps if thepilot is seen not to be employed assuch (this situation is what anyoneelse would call "cost-sharing"). Asimilar situation exists where a pilotreclaims direct expenses paid out onbehalf of an employer. There areother exemptions, such as joint orcompany owned aircraft.Remunerated parachute dropping(and positioning for it) is regarded asaerial work.In Canada, a Commercial Air Servicemeans any use of aircraft for hire orreward, and different regulationsapply for aerial work, air taxi,commuter or airline operations. AnAir Transport Service means acommercial air service operated totransport persons, their belongings,baggage, goods or cargo in anaircraft between two points (doesthis mean that if you take off andland from the same place you’re notan Air Transport Service?).Let's have a closer look at the words"valuable consideration" as anexample of not-so-good drafting.The word "consideration" meansmoney or something of money'sworth that is more than merelynominal. It is legal expressionreferring to something that is used tobind a contract, even the chocolatewrappers sent in to a manufacturerto obtain a free gift.The word "consideration" by itselfwould have been enough, butsomebody saw fit to add "valuable"in front of it, which changes the
position somewhat, because noweverybody has to rush around tryingto decide what that particular wordmeans and subsequently howvaluable should consideration be toqualify for the ANO?The actual definition there comesfrom the 19th Century, which reads:Legal Stuff 283"any right, interest, profit or benefit,forbearance, detriment, loss orresponsibility accruing, given, suffered orundertaken pursuant to an agreement,which is of more than a nominalnature."Try this instead:"Money or money's worth, which is morethan merely nominal (i.e. wrappers),including the release of debts, meaningmoney or anything capable of beingturned into money, possibly includingsome services which cannot."The real problem with this, though,lies with insurance. You may (or maynot) know that there is no such thingas a "contract" of insurance, becauseyou are betting; in this case, that youcrash your aircraft before a certaindate. The insurance people, ofcourse, are betting that you don't (oris it the other way round?).The trouble is that insurancecompanies are well known not topay if they can get away with it, so ifthey can prove that you were doingillegal Public Transport, you maywell find that your insurance isinvalid as well, not to mention beingcaught for third-party liability insome cases. Anyway, back to thesubject. The ANO (Art 6) says thatan Air Operator's Certificate is neededfor all flights that may come underthe definition of Public Transport:"an aircraft registered in the UnitedKingdom shall not fly on any flight forthe purpose of public transport, otherwisethan under and in accordance with theterms of an air operator's certificategranted to the operator….".Article 6 was originally Article 3A ofthe ANO 1960, and was inserted asan afterthought to it to cover AOCsthat would be unenforceable duringthe time gap until section 1 (2) (a) ofthe coming Civil Aviation(Licensing) Act 1960 came into forceon 30 March 1961. This section waslater repealed by the 1972 Act, sofrom that time the ANO could nolonger legally make provisions for anAOC with enforceable terms. Inother words, an AOC is not made bystatutory instrument.The 1982 Act says that onlystatutory instruments can establishenforceable terms; in other words,no enforceable law (that is, bycriminal proceedings) can be madebelow the level of a statutoryinstrument, which of course an AOCis not. AOC terms are laid down bythe CAA, which cannot issue SIs.By the way, the term "operator"above has been held by leadingcounsel to include the pilot (anyperson with the management for thetime being of an aircraft is regardedas being the operator). Reference toRoad Transport Acts shows that if ithad been intended that a "driver"was not to be an "operator", then
