Research and analysis

RPC opinion: aviation consumer rights – tansport vires and reform power

Published 12 June 2026

Lead department: Department for Transport

Summary of proposal: The proposal is to restore legislative powers which would enable the UK to make and amend air passenger rights regulations via secondary legislation.

Submission type: options assessment – 3 July 2025

Legislation type: primary legislation

RPC reference: RPC-DfT-25064-OA (1)

Date of issue: 6 August 2025

RPC opinion

Fit for purpose:

• the options assessment (OA) evidences the problem under consideration
• the department presents 3 long-list options, using critical success factors to justify the selection of the short-list options, although the OA could have included a do-nothing option in the short-list
• the proposal does not have any immediate regulatory impacts on business and only provides the ability to implement future policies through secondary legislation
• in light of this, the department has provided a sufficient qualitative assessment of the full impacts to justify the selection of the preferred way forward

RPC summary

Rationale: Green

The OA evidences the problem under consideration but could benefit from providing further evidence to illustrate the problems for consumers and the problem of using primary legislation. The OA could also consider additional market failures that might be present.

Identification of options: Green

The OA sets out the long-list options but could use the Green Book’s options framework-filter. The OA provides sufficient justification for the short-list options, assessing each option against critical success factors. This could be improved by using the Green Book’s defined success factors. The OA provides a sufficient small and micro business assessment.

Justification for preferred way forward: Green

The department explains that, as the proposal does not have any immediate impacts and only provides the ability to implement currently unknown future policies through secondary legislation, the OA does not include any monetised costs or benefits. In light of this, the department provides a sufficient qualitative assessment of impacts, However, the OA could further indicate the scale of the impacts that may occur at secondary stage. The OA justifies the selection of Option 2 as the preferred way forward.

Regulatory scorecard: Satisfactory

The OA presents a summary of the expected impacts on all key areas but could benefit from providing any further indicative evidence to support the scale of the expected secondary impacts on businesses and consumers. The OA could also expand on the impacts on business environment and decarbonisation.

Monitoring and evaluation: Satisfactory

The OA would benefit from confirming when a review will take place. The OA clearly sets out the potential data sources which will be used to address the research questions, and the metrics which will be gathered. However, the OA would benefit from including some further detail on the nature of this data.

Summary of proposal

Following the United Kingdom’s (UK) withdrawal from the European Union (EU), the European Communities Act 1972 was repealed. This included the repeal of Section 2(2) of that Act, which was the general power previously used to amend air passenger rights legislation.

As a result, the UK can no longer create or amend secondary legislation relating to air passenger rights, without passing new primary legislation, which can be bureaucratic, time-consuming, and often disproportionate to the scale of the changes required.

The government aims to address this gap by restoring key legislative powers which would enable the UK to make and amend air passenger rights regulations via secondary legislation, restoring flexibility and responsiveness in this area.

In addition, the proposed power may also allow for amendments to assimilated law relating to air passenger rights, ensuring the UK can keep pace with international developments in the air passenger rights landscape.

The OA considers 2 short-list policy options:

• option 2 – preferred option (legislative) - primary power to make and amend secondary legislation and assimilated law relating to air passenger rights
• option 3 – do minimum (legislative) - primary power to make and amend secondary legislation relating to air passenger rights

The department explains that, as the proposal does not have any immediate impacts and only provides the ability to implement currently unknown future policies through secondary legislation, the OA does not include any monetised costs or benefits, as this quantification would be highly uncertain.

The OA’s approach is consistent with RPC guidance on assessment of the impacts of the primary legislation and the department has provided a sufficient qualitative assessment of impacts, first discussing the immediate effect of reduced bureaucracy from the primary legislation, as well as considering the different types of impacts that could occur at secondary stage, such as potential familiarisation costs, administrative costs and compensation payments.

Rationale

Problem under consideration

The OA outlines the problem under consideration, explaining how the UK only has the power to create and amend air passenger rights legislation through primary legislation, which can be lengthy and costly. This means the UK is constrained in its ability to keep its air passenger rights aligned with the wider aviation landscape, including the EU’s regime.

The department evidences this problem, referencing international examples of future EU reforms which the UK will diverge from, such as the reform of Regulation 261 to change the rules on ‘no show’ customers and the EU’s proposal to redefine ‘extraordinary circumstances’ in air travel. However, these examples only detail EU reforms, and do not provide direct evidence of the issues being addressed around UK primary legislation and consumer confusion.

The OA could therefore benefit from providing evidence to further illustrate the existence of these problems for consumers. For instance, the OA could use any relevant case studies or anecdotal (quantitative or qualitative) evidence to demonstrate how UK passengers will be disadvantaged from disparities in entitlement compared to their EU counterparts. This would help to support the problem under consideration.

The OA could also be improved by including further evidence to illustrate the problem of using primary legislation. Whilst the department explains that primary legislation places greater demands on parliamentary time and resources, the OA could benefit from including available evidence to support these problems, such as examples of recent lengthy primary legislation and the stakeholders who were impacted. However, overall, as the measure is low impact, the evidence provided is sufficient and proportionate to the potential impact.

Argument for intervention

The OA uses the existence of government failures to form its argument for intervention, referencing efficiency failures due to increased bureaucracy resulting in a fragmented aviation industry. The OA could also consider additional market failures that might be present, including inequality and information failure from consumers becoming increasingly unclear about their rights and at a disadvantage when compared to those in the EU.

The OA would also be improved by providing relevant evidence to support these arguments, particularly by using any available anecdotal evidence to support the confusion faced by consumers.

Objectives and theory of change

The OA sets out the objectives for the proposal. However, the department would benefit from fully applying the SMART objectives framework when forming the objectives. For instance, Objective 2 to ensure the UK can remain responsive in order to improve air passenger rights, appears vague, and the objective could be more specific to the aims of the policy around removing undue bureaucracy from primary legislation.

Furthermore, whilst Option 1 provides good indicators for measuring its success, the indicators for Option 2 are high level and could benefit from further detailing how the objective will be measured to meet the measurability aspect of the SMART framework.

The department provides a suitable theory of change diagram, demonstrating the logical process by which the SMART objectives will be met.

Identification of options

Identification of the ‘long-list’ of options

The OA has considered a long-list of 3 options for implementing new powers to amend and create air passenger rights, including an option to use primary powers to make and amend secondary legislation and an option to also include a primary power to make and amend assimilated law. The department details these options in the OA, describing qualitatively what they would involve and their associated risks. However, the assessment could also be improved by including detail on the process behind developing the long-list of options, such as how research and other evidence have been used to form these policies.

The long-list of options could benefit from using the Green Book’s Strategic Options Framework Filter (SOFF), which could help present the long-list in greater detail whilst retaining a clear and concise structure. The strategic framework filter would be particularly useful to demonstrate clearly how the scope has been incrementally increased for each option.

The OA could also benefit from expanding its long-list to discuss other approaches or options that could address the problems under consideration. In particular, the long-list could include options that would improve the efficiency of primary legislation, rather than just focusing on changing the legislative vehicle to secondary legislation. This could be applied in combination with the long-list options that have been set out.

The department could then explain why these have not been carried through to the short-list. The department could also consider options which align with other international approaches for passenger rights, such as the US model where there is no federal recourse for passenger rights but instead they are dealt through the airline’s contract of change.

Justification for the short-listed options

The department carries forward all long-list policy options (Option 2 and Option 3) into the short-list. The OA justifies this by assessing the options against 4 critical success factors (CSFs), explaining that both options would at least partially restore the UK’s ability to update air passenger rights efficiently, and would align with the CFs to some extent. However, the OA should also include the do-nothing option in the shortlist, in line with Green Book guidance.

Although the OA explains that the do nothing option does not deliver the policy objective as it would result in delayed consumer aviation rights due to the need to rely on primary legislation, this should be stated explicitly in the shortlist.

Furthermore, whilst the OA clearly explains its assessment of CFs, this would be improved if the OA aligned its success factors with the specific key critical success factors as set out in the Green Book. In particular, CSFs 1-3 in the OA would fall under the Green Book’s ‘strategic fit’ CSF and CSF 4 may align with the ‘achievability’ CSF.

In addition to CSFs, the department also considers if the options meet the SMART objectives set out in the OA and if they address the market failures identified, providing a table which colour rates each option against the policy objectives and associated market failures. However, the OA would benefit from further explaining the red/amber/green ratings, detailing the incremental variance between the different RAG ratings.

The OA would also benefit from clarifying if the question mark against Option 3 simply accompanies the amber rating or indicates that the department is uncertain about the amber rating, or the impacts expected. Furthermore, SMART objectives and market failures are not an effective method for justifying the generation of the short-list, as it is best practise for all long-list options in an OA to meet SMART objectives and be viable for addressing the problems under consideration.

Consideration of alternatives to regulation

The OA does not consider alternatives to regulation, explaining that it would not be possible to make the required changes without a legislative vehicle. As the proposal is to implement new legislative powers to amend and create future air passenger rights, this cannot be achieved without legislation. Due to the low regulatory impact of this measure at primary stage, the RPC considers this satisfactory. The OA would benefit from confirming if non-regulatory approaches will be considered when the assessments for the subsequent secondary legislation are submitted to the RPC.

Small and micro business assessment (SaMBA) and medium-sized business (MSB) assessment

The OA provides a sufficient SaMBA, particularly as the options within this primary stage OA have no regulatory impact on business. The OA confirms that any future amendments which may impact small and micro businesses (SMBs) will be assessed through the production of SaMBAs when the subsequent secondary legislation is enacted.

In addition, the department also explains why exempting SMBs from the policy at this stage is not appropriate, as this would not achieve the objective of increasing consumer protection from subsequent secondary legislation. As 26% of holders of UK AOCs are SMBs, this poses a risk to the success of the intervention.

The OA also explains that it is unlikely SMBs will face disproportionate burdens from the regulations, as it is expected that the majority of the costs of the regulation will be directly proportional to the number of passengers carried by each airline, which will be closely aligned to the size of the organisation. This implies that the majority of the costs of the regulation will be borne by large organisations, given their market share. Nevertheless, the OA would benefit from considering any potential mitigations for SMBs, such as specialised guidance and training.

Justification for preferred way forward

Appraisal of the shortlisted options

The department explains that, as the proposal does not have any immediate impacts and only provides the ability to implement currently unknown future policies through secondary legislation, the OA does not include any monetised costs or benefits, as this quantification would be highly uncertain. The OA confirms that any costs or benefits that arise as a result of secondary legislation will be explored and submitted for assessment when these policies are developed.

The OA’s approach is consistent with RPC guidance on assessment of the impacts of the primary legislation and the department has provided a sufficient qualitative assessment of impacts, first discussing the immediate effect of reduced bureaucracy from the primary legislation, as well as considering the different types of impacts that could occur at secondary stage.

The OA also presents case studies of examples of future amendments the powers may be used for, to illustrate the likely scale of impacts. However, the qualitative assessment appears limited in places, and OA could further indicate the scale of the impacts that may occur at secondary stage. For instance, the OA could utilise the analysis conducted for similar regulations to present rough indicative estimates of the potential familiarisation costs, administrate costs and compensation payments costs that may occur under both short-list options.

The OA could also consider the potential impact of aligning with future EU regulations, such as the possible ban on airlines charging for carry-on baggage. This could be an example where the OA could consider impacts of UK following suit if the EU introduces a change, and could consider the potential impact on business revenue and a reduction in consumer choice.

Selection of the preferred option

The department explains that the preferred option is Option 2, to create a primary power to make and amend secondary legislation and assimilated law relating to air passenger rights. The OA justifies this as the preferred way forward as it is the most comprehensive option, and the only option which provides a power to amend assimilated law.

Option 3 is not preferred as this does not go as far as Option 2, and any amendments to assimilated law would still require primary legislation, limiting the government’s ability to implement reforms efficiently. This qualitative assessment provides sufficient justification. However, this selection could have been enhanced by including any indicative estimates on the impacts of Option 2 and Option 3 to help support their comparison and the selection of the preferred option.

Regulatory scorecard

Throughout the OA, the department has identified and assessed the scale of some of the impacts of the proposal, including those that are expected via future secondary legislation. The department also confirms that subsequent changes made to the regulations would be assessed comprehensively at the point at which secondary legislation is enacted.

However, the OA could benefit from developing its discussion and providing further detail on the total impacts expected from the proposal, with any associated evidence from similar regulations to present rough indicative estimates of these potential costs.

Part A

Impacts on total welfare

The department indicates that the overall expected impact on welfare is uncertain and non-monetised. The immediate impact of the policy will be the reduction in bureaucracy required to create or amend secondary legislation and assimilated EU law, through primary legislation. Subsequent impacts from future secondary legislation are likely to be interventions designed to improve consumer protection, which could result in more equitable and fair access to air travel. The OA could benefit from providing any indicative or qualitative evidence to indicate the scale of this equality benefit.

Impacts on business

The department indicates that the overall expected impact on business is uncertain and non-monetised. There will not be immediate impacts on business from the proposal. Subsequent impacts from future secondary legislation are likely to be potential familiarisation costs, administrative costs and compensation payments. The OA could utilise analysis conducted for similar existing regulations to present rough indicative estimates of these potential costs.

Impacts on households, individuals or consumers

The scorecard demonstrates that the overall expected impact on households will be positive, despite no monetised impacts from the policy. This is due to the increase in compensation payments or the ease with which passengers will be able to seek redress from subsequent secondary legislation. The OA could utilise analysis conducted for similar existing regulations to present rough indicative estimates of these potential benefits. The OA could also consider if some additional costs from business may be passed through to passengers in the form of higher prices.

Distributional impacts

The OA explains that the measure will have significant positive distributional impacts as some of the legislative changes that may be brought about using the powers may be designed to increase consumer protection for those with protected characteristics (such as people with disabilities). The OA could expand on this positive distributional impact, providing any relevant evidence to support and indicate its scale. The OA could also confirm whether an equalities impact assessment has been conducted.

Part B

The department considers the impact of the proposal on wider government priorities, explaining that the preferred option may impact the ease of doing business in the UK, due to subsequent legislation resulting in an increase in future costs for business.

However, the OA could benefit from expanding on this impact, outlining the types of costs that might be expected. The OA could also provide any relevant evidence to illustrate the scale of this impact for business, perhaps by utilising any analysis from current legislations in the air passenger industry which may be similar to the future legislations resulting from the preferred option.

The department could also expand its overall discussion of the business environment impact, detailing how increasing business costs may impact the competition and innovation of airlines. In particular, given the department could consider how increasing internal costs will affect the demand and supply mechanisms in a competitive market equilibrium and impact the long-term price and quality of air travel.

The OA also states that the preferred option will support international considerations as subsequent legislation may include elements which align the UK with international standards, resulting in increased inward investment. The OA could benefit from providing any further evidence to indicate the potential scale of this impact.

The OA claims that the measures will not have an impact on natural capital or decarbonisation, however the department could consider that subsequent legislation from the preferred option which may increase the attractiveness of aviation as a means of travel for consumers may result in a small increase in carbon emissions from a greater number of flights.

Monitoring and evaluation

The OA provides a good monitoring and evaluation plan. The department confirms that as the proposal will be implemented through primary legislation, there is no statutory requirement to conduct a formal post-implementation review (PIR), and that the need for a PIR would be assessed based on the scope and substance of future secondary legislation.

Despite this, the OA states that either the CAA or the department will still undertake informal monitoring, and any future evaluation would follow a SMART-aligned evaluation framework. The OA would benefit from confirming when an informal review will take place.

The OA sets out the research questions that might shape future evaluation and does well to link these to the SMART objectives detailed in the theory of change diagram. As the research questions relate to the success of the intervention in achieving its objectives (impact evaluation), the OA could benefit from including some research questions which also address process evaluation.

The OA clearly sets out the existing and potential future data sources which will be used to address these research questions, and the metrics which will be gathered. Whilst the department acknowledges that specific data collection methods will be confirmed at a later stage, the OA would benefit from including some further detail on the nature of this data and how it will be collected. In particular, it would be beneficial to set out the questions that will be asked in the CAA Aviation Consumer Survey and when it will be launched.

The OA does well to consider unintended consequences of the policy and sets out some external factors that may impact the success of its implementation. However, the OA would benefit from considering how the evaluation will adjust for these.