Commentary on Sections Note on abbreviations Section 7: Removal of appeal to Secretary of State in respect of route licences
44.The UK has special procedures to govern the allocation of scarce capacity between airlines on routes between the UK and third countries, designed specifically for circumstances where market forces are prevented from operating properly owing to restrictions in bilateral air services agreements.
45.The available capacity is allocated by the Civil Aviation Authority following a public hearing at which the airlines concerned, and other interested parties, are allowed to, amongst other things, appear in person, produce oral and written evidence and have the opportunity of cross examination. The CAA considers this evidence and decides between the applicants on the basis of its view on which proposal will bring the greatest benefits to consumers. The successful airline or airlines are awarded the additional number of flights or passenger seats, and other airlines have their route licences conditioned to prevent them operating more (or perhaps any) services on the same routes until bilateral circumstances change.
46.Section 69A of the CA Act 1982 provided a right of appeal to the Secretary of State for Transport against a route licence decision of the CAA, by the application of air transport licence provisions with modifications. In his determination of an appeal the Secretary of State could uphold the CAA’s decision or direct it to re-hear the case or to reverse or vary its decision. Section 7 amended section 69A of the CA Act 1982 and regulation 27 of the Civil Aviation Authority Regulations 1991 (S.I 1991/1672) to remove this right of appeal. Affected parties will instead be able to challenge a decision of the CAA in the courts by judicial review. Subsections (2) and (3) achieve this amendment by modifying the application of the relevant sections of the CA Act 1982 to route licence cases. Subsection (3) ensures that, where the CAA has decided to transfer allocation from an incumbent airline, or issue a new allocation, the CAA may delay the date of implementation of the change in order to ensure continuity of service provision. Subsection (5) ensures that any appeal to the Secretary of State in train at the time of coming into force of this section is not affected by the amendments.