Grand Father rights?

[Pace]

Does anyone know under what circumstances "Grand Father" allowances are given in respect to rule changes?

There are rule changes which can be not only costly but time consuming to an extent that a pilot may not be able to operate or may even loose work through those changes!

There must be guiding principals where Grand Father allowances are offered and given.

You have been doing X safely and legally for years. Along come the regulators and stop you! In the process incurring huge costs on you in both time and money.

Effectively you are stopped dead in your tracks! who is legally liable for your losses ?

Anyone know especially what determines Granfather right allowances and why they are given ?

Pace

[Spitoon]

It will depend on why the rules have changed and how much scope the local regulator has to allow grandfather rights. Each case is assessed individually in my experience - and sometimes a transition period is specified rather than an open-ended right for anyone who is already doing 'it' to continue to.

Strangely enough, my experience suggests that the CAA tries to permit people to continue to work if there is no unacceptable risk in doing so - part of the problem is that society is becoming more and more risk-averse as time passes and the CAA has to reflect this.

[IO540]

In a fundamental sense, the Crown has immunity and is able to pass legislation which results in an economic loss to a person or a business. There is ample case law over the centuries and basically the victim is on a hiding to nothing.

But today the situation is much more complex because in many areas the organisation is required to follow procedures (such as an impact assessment) and if these are not followed correctly then the resulting rule change is vulnerable to a Judicial Review.

That's the scene in the UK. I don't know anything about this but there may be additional EU rulemaking procedures.

[Whopity]

One of the best and longest standing examples of grand father rights is the BCPL (Restricted). This came about because a law change would have prohibited aeroplane pilots from giving remunerated instruction on a PPL consequently, they were given a BCPL, free gratis as a grandfather right. Now the CAA is requiring them (contrary to Sched 8) to buy an additional JAA licence if they wish to examine.

Revalidation Examiners were given grandfather rights to continue as there is no such thing under JAR-FCL. Another example was when Single Pilot TRI/TREs became CRI/CREs under JAR-FCL; this lead to a quite absurd situation of one AFI (ME) becoming a CRE and able to test his supervisor!

In the main a grandfather right gets around a law change and prevents loss of an existing privilege. There is no set rule for applying such criteria which is usually used to get around an ill conceived change. When EASA wipe the slate clean and start with a new set of rules, it will be interesting to see if there are any more grandfather rights! Don't bank on it.

[BroomstickPilot]

Hi Pace,

Does anyone know under what circumstances "Grand Father" allowances are given in respect to rule changes?

There is no legal principle of 'Grandfather rights'. It is an informal term, with no legal backing, used to describe a concession given to persons who may have practiced in some area of expertise or trade for a considerable length of time, but who are now faced with rule changes they could not have envisaged at the time they commenced to practice whichever skill or expertise is in question.

Now that is all that can be said about 'circumstances'.

However, the nature and extent of such rights is always decided on a strictly ad-hoc basis in relation to a specific situation.

However, if no 'grandfather rights' are given and the person affected is not consulted before the new rules come into force, and the rule change is likely to deprive him/her of his/her living, then he/she may perhaps have a line of action against the rule-makers on grounds of the common law principle of 'Natural Justice'.

Broomstick.

[Pace]

if no 'grandfather rights' are given and the person affected is not consulted before the new rules come into force, and the rule change is likely to deprive him/her of his/her living,

Broomstick

Thanks for that! There are two parts which you have placed above. "not consulted" and "deprive him/her living".

What does consulted refer to?? Is it that you just have to be aware of rule changes which may come into force that will effect you?

Deprive a living might be relevant to myself being paid to fly a N reg Jet in Europe if I was stopped from doing so but how would that effect someone who for instance bought an aircraft to get him home at weekends from say London to Scotland?

He may in good faith have spent money achieving an IMCR to fly in worse weather and a rule change IE abolition of the IMCR could cost him dearly.

It would not directly deprive him of his living as he could always catch a train to get back at weekends. It would nevertheless cost him through no fault of his own.

Pace

[Fuji Abound]

Pace

FWIW I have always thought that if the IMCr is abolished without a satisfactory alternative there could well be a legal challenge. Given AOPAs stance on the matter they might well want to make such a challenge on behalf of their members - I suspect they would find wide spread support.

I think this is one of the reasons why FCL008 is proceeding so carefully.

In so far as your circumstances are concerned I think matters may be less straight forward. The withdrawl of the right to operate stems not from a change in licensing granted directly by the governing authority but rather a change in the recognition of foreign licenses. In other words you are not being denied a license privilige granted by the CAA simply be denied the right to exercise that privilige in European airspace unless certain conditions are met.

However I would take comfort that as much as EASA might like to abolish flag of convenience licenses and aircraft politically this is as much a hot potatoe as the IMCr - I suspect a much hotter potatoe given the financial clout and influence of some of the bigger operators. EASAs only hope is to find a way of sidelining the small private operators on the N reg whilst leaving the bigger fish to play. If they find one then I suspect every SEP owner on the N reg will have a problem and doubtless so will a few of the CAT operators who are exclusively based in Europe.

Lets hope they save themselves a lot of aggravation and fudge both these issues as I suspect they will. It is just a matter of finding a fudge everyone can live with. :}

[Pace]

Fuji

I think they would have problems with European discrimination Laws as well if they tried to be selective.

That also raises the question of the IOM register. More and more aircraft appear to be heading that way.

change in the recognition of foreign licenses.

Dont think under international law and icao they could do that?

Pace

[BroomstickPilot]

Hi Pace,

Let me say at the outset, I am not a lawyer. However I did read law at one time during my mis-spent youth. I can, however, give you a general idea of the law, but you need to consult a real lawyer on your personal legal situation. However in general the following is what I believe you will find to be the case.

What does consulted refer to? Is it that you just have to be aware of rule changes which may come into force that will effect you?

British statutes frequently provide for the Minister/Secretary of State to have powers to make regulations. These generally have a provision requiring that the Minister/Secretary of State should enter into active consultation with interested parties (i.e. usually by writing to their trade bodies to seek their views or holding meetings with these regarding the proposed regulations,) before finalising the new regulations.

If the Minister/Secretary of State fails to do so, then his/her new regulations could be challenged in court on grounds that he/she had acted 'ultra vires', (i.e. beyond his/her powers) by creating the new regulations without consultation.

Deprive a living might be relevant to myself being paid to fly a N reg Jet in Europe if I was stopped from doing so but how would that effect someone who for instance bought an aircraft to get him home at weekends from say London to Scotland?

Fuji has largely answered this question. I would only add that it is of relevance within which legal administration your contract of employment to fly the 'N Reg' was made. Was you contract entered into under English Law, under US Law, or the law of some other country?

In regard to the IMCR holder, it is important to recognise that in principle in any conflict between English Law and EU Law, EU Law ALWAYS takes precedence. This is why the current discussions on the IMCR at European level are so vital. Whatever is decided will be the law in the EU. However, there is provision in EU law for the UK to deviate from the EU decision by filing a difference from EU law with EASA. Something Member States only do as a last resort, as it tends to have a damaging effect on their relationship with the EU.

Broomstick.

[Fuji Abound]

I think BroomStickPilot has given a very good summary.

In so far as the legislation that makes up the discrimination laws I dont see how these would help. The Race Discrimination Act would seem to be the only legislation that could be relevant, but I dont see that it is.

Pace, as you kow there are numerous examples where National Authorities have departed from their ICAO "obligations" and ICAO specifically recognises the right of member states to do so. In fact America has departed from their ICAO obligations in the terms of their instrument rating. It is my guess that on legal grounds EASA would not have too many problems dealing with this issue, but, as I suggested earlier, I think the political hurdle is the much more difficult one for them to tackle.

Clealry EASA would not want to hamper commercial operations but I think their is a real appetite to curtail the explosion in N reg light aircraft. The danger is that if they decide to tackle just this problem people like yourself dont fall into the gap between international commercial operations and private puddle jumpers.

[Pace]

Fuji

I am no legal expert but I do know that The French, Germans and UK have tried and failed a number of times and that N reg has been the thorn in their side for years.

Europe seems to have been powerless in the past so what has changed?

Pace

[IO540]

Today's copy of Flight Training News says (page 7):

Zoltan Kazatsay, depute DG for Energy and Transport of the EC, said "Changes to existing rules will only be proposed if justified by safety considerations".

We all know there is no safety issue with foreign reg / foreign license operations in Europe....

[EddieHeli]

If they want to stop the proliferation of N reg operators they only need to make the Euro rules and regulations less onerous and introduce a sensible PPL/IR.

With regards to new laws ruining peoples livelihoods what about when Guns were outlawed after the Dunblane massacre.

The bad guys have more guns than ever and the law abiding members of shooting clubs and sports shooters training for international competitions were immediately deprived of that opportunity.

So don't hold your breath waiting for common sense to prevail.

[IO540]

There is a big difference between banning guns (which had the support of the illiterate / tabloid classes i.e. the vast majority of the public, was a purely domestic measure, was dead easy to implement, trivial to police using the existing framework for legal gun control, so the net political payoff was substantial) and banning the use of foreign licenses (which has no support except among few obvious business interests like flying schools, has difficult international /treaty implications, is hugely complicated to law-make, virtually impossible to police using any existing framework, and at the end of it there is no political payoff for those behind it).

[Fuji Abound]

Europe seems to have been powerless in the past so what has changed?



Nothing.

As I suggested earlier I think it is a tough one for them to crack not for legal but for political reasons.

[BroomstickPilot]

Hi Pace,

Europe seems to have been powerless in the past so what has changed?

Actually, quite a lot. However, all of this has occurred incrementally and over many decades as a result of a series of international treaties.

Add to this the fact that we have only once been allowed by our own parliament to have a say (by referendum) in what is agreed with Europe, and you have creeping federalisation, proceeding almost unnoticed by Joe Public, on the 'boiled frog' principle.

Other than a few newspaper reports of varying quality at the time of signing, the British public has never really been encouraged to inform itself about the content and effect of these treaties.

(Actually, even in 1971 when we did have our one and only referendum on our membership of the 'Common Market', massive government funds were ploughed into the 'YES' Campaign, while the 'NO' Campaign's resources were a fraction of that amount. Call that fair? I don't. Ever since then, the attitude of the British public to the EU has been one of grudging acceptance alloyed with disinterest and apathy).

That's why the power wielded by Europe comes as a surprise.

Broomstick.

[vee-tail-1]

As regards Grandfather Rights for maintenance of EASA aircraft.
My French registered Robin ATL has been maintained according to French rules, which allow owners to do much of the work. Under EASA part M this is forbidden, and all work has to be done by sub parts F,G,& I at great expense. But the French GSAC have proposed Grandfather Rights to grant suitably experienced and qualified owners a restricted part 66 maintenance licence. So enabling us to carry on as before and save sheds of money. However GSAC have not had too many English owners of French aircraft applying for this French concession. So I am still waiting for a decision. If anyone is interested will keep you posted.