Research and analysis

RPC opinion: aviation safety – reintroducing powers to create criminal sanctions

Published 12 June 2026

Lead department: Department for Transport

Submission type: options assessment

Legislation type: primary legislation

RPC reference: RPC-DFT-26134-OA(1)

Date of issue: 13 March 2026

RPC opinion rating

Fit for purpose:

• the options assessment (OA) outlines the problem under consideration, explaining that since EU Exit, the only remaining mechanism for creating and amending criminal sanctions for aviation safety legislation has been the Retained EU Law (REUL) Act
• the OA has considered a long-list of 4 policy options and has used SMART objectives and critical success factors as part of the long-list appraisal
• the OA provides sufficient discussion on impacts, both direct and indirect, as part of the regulatory scorecard

RPC opinion summary

Rationale: Green

The OA outlines the problem under consideration, explaining that since EU Exit, the only remaining mechanism for creating and amending criminal sanctions for aviation safety legislation has been the Retained EU Law (REUL) Act. Government intervention is required because the constraint arises from a structural gap in the legislative framework. The OA provides a suitable objective, which follows the SMART framework.

Identification of options: Green

The OA presents a long-list with 4 policy options. The department states that as the problem under consideration is legislative in nature, government intervention to reform the current legal framework is the only possible means of addressing this. The OA provides a sufficient small and micro business assessment that will be developed prior to secondary legislation.

Justification for preferred way forward: Green

The department has only provided a full appraisal for the preferred option, but supports this with a brief qualitative assessment that justifies why Option 2 was not selected as the preferred way forward. The OA would benefit from the inclusion of a separate analytical annex that details the appraisal methodology.

Regulatory scorecard: Satisfactory

The proposal is expected to have a positive impact on total welfare – the policy has a monetised net present social value (NPSV) of £0.5 million. The only monetised impact is a direct benefit to government of reduced legal costs. The preferred option is expected to have a positive impact on businesses but there are no monetised impacts of the policy at this stage. The preferred option is expected to have a positive impact on households.

Monitoring and evaluation: Satisfactory

The OA explains that there is no statutory requirement to undertake a Post Implementation Review (PIR) as this measure is primary legislation. The department outlines several questions that could be used to evaluate whether the proposal has achieved its objectives and identifies two data collection methods.

Summary of proposal

The preferred option is to establish new powers to create and amend criminal sanctions in the field of assimilated aviation safety legislation. This will restore a critical legislative function that was lost with the repeal of section 2(2) of the European Communities Act 1972, and will provide a durable, long-term solution to replace the current reliance on the temporary and highly constrained powers in the Retained EU Law (Revocation and Reform) Act 2023 (”the REUL Act”).

It will ensure that new obligations in assimilated law can be enforced by criminal sanctions and existing obligations and their associated criminal sanction in assimilated law can be amended where necessary to uphold compliance and protect public safety.

The OA has considered 3 short-list options for intervention:

Option 0 - do nothing

This option would continue with the approach that is currently in place and do nothing further, the UK’s legislative programme will fall further behind in implementing international standards relative to other States. As this option does not meet the objective, it has not been selected as the preferred option, but it has been included in the shortlist for comparison.

Option 2 – move certain elements of assimilated legislation into the Air Navigation Order (ANO)

This option would provide a short-term workaround for critical amendments by enabling the use of existing powers under section 61 of the Civil Aviation Act 1982 to make criminal sanctions.

Option 4 (preferred)

Reinstate powers to Secretary of State using primary legislation. This option would fully restore criminal sanction-making powers and enable faster and more straightforward amendments of assimilated safety law as there would be no need to engage resource and time-intensive workarounds.

The preferred option is a proportionate, cost-effective mitigation of a serious risk to the rulemaking programme and would reduce existing friction in the secondary legislation process while enabling the maintenance of high safety standards and timely compliance with international obligations.

The preferred option has a monetised NPSV of £0.5 million and an Equivalent Annual Net Direct Cost to Business of £0. This estimate is calculated using 2026 as both the price base year and discount year and assumes a 10-year appraisal period.

Rationale

Problem under consideration

The OA outlines the problem under consideration, explaining that since EU Exit, the only remaining mechanism for creating and amending criminal sanctions for aviation safety legislation has been the Retained EU Law (REUL) Act. These powers are highly constrained and will expire in June 2026.

As a result, the government and Civil Aviation Authority (CAA) cannot update criminal sanctions or introduce new ones where they are required to support effective compliance with aviation safety rules. The department explains that this restriction is creating increasing operational, legal, and regulatory challenges. Without a replacement power, the UK risks falling out of alignment with international obligations, undermining aviation safety, regulatory credibility, and the UK’s international standing.

Argument for intervention

Government intervention is required because the constraint arises from a structural gap in the legislative framework. Only Parliament can restore the powers necessary to amend or create criminal sanctions in assimilated aviation safety law. Without such intervention, the expiry of REUL Act powers in June 2026 will leave the UK unable to maintain an effective and deterrent enforcement regime for aviation safety, risking continued delays, reduced compliance, and potential breaches of international obligations.

Restoring a suitable power would not expand the volume of rulemaking activity but would allow the existing programme to function as intended – delivering updates on time, removing unnecessary drafting burdens, improving enforceability, and supporting the effective regulation of emerging technologies. The OA provides 4 brief case study examples of the impact of delayed rulemaking. The argument could be improved by providing quantitative evidence of each impact.

Objectives and theory of change

The OA sets out the main policy objective – to address deficiencies in powers. The department has developed this objective using the SMART framework but could have done this more succinctly. The department should also clarify whether there are any secondary objectives that the policy seeks to achieve.

The logic model diagram is fit for purpose but could be improved by developing the ‘impact’ section to consider metrics that could be used to measure these impacts. The logic model should also be expanded so that the text describes what each input or activity involves, for example ‘stakeholder engagement’ is included in both sections but is insufficiently described to differentiate between the two.

The OA would benefit from linking the intervention to departmental and wider Government objectives, explaining further whether the intervention could support economic growth and reduce carbon emissions.

Identification of options

Identification of the ‘long-list’ of options

The OA presents a long-list with 4 policy options, including a do-nothing option, moving some or all elements of assimilated legislation into the ANO, and reinstating powers using primary legislation (preferred). The department should include a description of all policy options in section 4 of the OA, including those that have been taken forward to the short-list.

In addition to this, the OA would benefit from further explanation of how the long-list options were generated. The OA should clarify whether an Option 1 exists, as the options currently move from Option 0 to Option 2 with no Option 1 presented.

Consideration of alternatives to regulation

The OA links the rejection of alternatives directly to the policy rationale and objectives, in line with the Better Regulation Framework expectation to consider alternatives even at a high level. The department states that as the problem under consideration is legislative in nature, government intervention to reform the current legal framework is the only possible means of addressing this. Thereby providing sufficient justification for not including alternatives to regulation in the long-list. The OA could reiterate this position in section 4 of the OA and expand on this by providing specific examples of why different non-regulatory options would not be effective.

Justification for the short-listed options

The OA presents 3 short-listed options, including a do-nothing option, moving certain elements of assimilated legislation into the ANO and reinstating powers using primary legislation (preferred). The department details these options in the OA and appraises them against tailored Green Book Critical Success Factors via an Options Framework Filter.

The only option which has been fully discarded from the long list is Option 3 – Move all relevant provisions from assimilated law into the ANO. The department explains that Option 2 is better than Option 3 because it is a targeted workaround which is more focused and manageable. The department should clarify the ratings in the Options Framework Filter, as visually Option 2 and Option 3 have the same ratings.

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

The OA provides a sufficient SaMBA that details the number and size of firms impacted. The department uses ONS SIC code data and cross references this to CAA estimates.

The department provides some data showing that, amongst businesses that offer passenger flights, larger firms account for a disproportionate share of the market. This data indicates that, although 99% of organisations within this sub-sector are small, micro or medium-sized organisations, these organisations account for less than 5% of market share as measured by aircraft kilometres. Given the limited impacts of the proposal, there is not anticipated to be any disproportionate impact on small and micro businesses.

The department has committed to undertake separate additional analysis at secondary legislation stage. This future analysis should include consideration of exemptions and mitigations, as well as a separate medium-sized business assessment.

Justification for preferred way forward

Identifying impacts and scale

In line with RPC guidance, OAs accompanying primary legislation must assess the full policy impacts, including those arising from related secondary legislation. The inclusion of 3 case studies to give context related to the impacts of enabled rulemaking is sufficient to meet the requirements of a Scenario 2 assessment under RPC guidance.

The OA has distinguished which impacts stem from the primary legislation, and which are expected to arise from secondary legislation. The department has explained why a full assessment of the proposal as a whole is not possible and has committed to undertaking further analysis of secondary legislation.

The department has included a qualitative assessment of impacts to a range of stakeholders within the regulatory scorecard. The department has included data on the number of businesses impacted within the SaMBA section but could draw on this data throughout the appraisal.

Appraisal of the shortlisted options

The department has only provided a full appraisal for the preferred option, but supports this with a brief qualitative assessment that justifies why Option 2 was not selected as the preferred way forward. The OA would benefit from providing quantitative evidence or examples to show the scale and complexity of the drafting required for Option 2.

The OA briefly sets out the methodology behind the reduced legal costs but could benefit from providing some justification for the assumptions used, for example evidencing why this is based on an annual saving of 0.4 Policy FTE and 0.2 Legal FTE. These figures do not appear to align with the narrative that states that ‘currently, legal teams must spend substantial time and resources developing complex workarounds to address gaps in enforcement powers.’

The OA includes a qualitative assessment of the non-monetised costs and benefits for the preferred option. The OA could benefit from including a description of the evidence that would be required to monetise these impacts once details of the proposal have been decided at secondary legislation stage. The OA would benefit from the inclusion of a separate analytical annex that details the appraisal methodology. This will be especially beneficial during secondary legislation appraisal, when there are expected to be greater impacts on stakeholders.

Selection of the preferred option

The department states that the preferred option would fully restore criminal sanction making powers and enable faster and more straightforward amendments of assimilated safety law. The OA provides a comprehensive description of the policy mechanism, explaining that future provisions would only impact offenders, with the effect on compliant businesses being non-existent.

Regulatory scorecard

Part A

Total welfare impacts

The proposal is expected to have a positive impact on total welfare – the policy has a monetised NPSV of £0.5 million. The only monetised impact is a direct benefit to government of reduced legal costs. It has been estimated by the CAA that the restoration of the powers will lead to a saving of approximately £60,000 per year. It is unlikely that this cost will be realised as a financial saving but will instead be deployed to support other CAA priorities.

The department explains that there are no other monetised impacts of the policy. No criminal sanctions will be added or removed as an immediate result of the policy, and businesses will therefore not be required to undertake any immediate activities.

Impacts on business

The preferred option is expected to have a positive impact on businesses but there are no monetised impacts of the policy at this stage, resulting in an Equivalent Annual Net Direct Cost to Business of £0. The department has provided a qualitative description of the non-monetised benefits which may result from restoring the power to create or amend criminal offences, including improved safety and alignment with international standards.

The OA should also clarify the classification of direct and indirect impacts in the regulatory scorecard. The benefit of harmonisation has been listed as both direct and indirect in the total welfare section and the business impact section of the scorecard.

Impacts on households, individuals or consumers

The preferred option is expected to have a positive impact on households. There will be no immediate impact on households, although passengers are likely to benefit indirectly in the future as a consequence of improved aviation safety. Restoring the power to create or amend criminal offences should contribute to a safer operating environment for passengers and crew, reducing the risk of incidents and supporting public confidence. The department states that the preferred option is not anticipated to have any adverse distributional impacts on households.

Part B

The department considers the impact of the proposal on wider government priorities, stating that it will support the ease of doing business in the UK. The policy will support the business environment by maintaining alignment with international standards, reducing legal uncertainty, and providing a stable and predictable regulatory environment.

The department indicates that the policy will have a positive international impact, as it will ensure the UK remains a credible, compliant, and attractive jurisdiction for aviation-related investment. The OA states that there are not anticipated to be any direct or indirect barriers to exports or imports.

The department states that the policy will have an uncertain impact on natural capital and decarbonisation. The impact will depend on which specific rulemaking tasks are accelerated or enabled as a result of the policy. The OA includes a brief explanation of how future changes could have either a positive or negative impact.

Monitoring and evaluation

The OA explains that there is no statutory requirement to undertake a post implementation review (PIR) as this measure is primary legislation. The department outlines several questions that could be used to evaluate whether the proposal has achieved its objectives, such as ‘Have the new powers been exercised to create or amend criminal sanctions?’

While these are useful starting points, many of the proposed metrics reflect activity rather than outcomes. These indicators will show whether the powers were used, but not whether their use has delivered the intended benefits – such as improved safety, reduced delays, or maintained international alignment. It would therefore be helpful to include metrics that assess the quality and impact of the intervention, alongside process measures.

The department also identifies 2 evidence collection methods – reviewing SIs and rulemaking outputs via the Aviation Legislation and Policy Sponsorship Group, and stakeholder check-ins to assess clarity and usability of new powers. The OA could benefit from including further detail on the data that is already captured through these methods, such as whether this is quantitative or qualitative, as well as the frequency and scope of data collection.

The OA would benefit from including metrics that could be used to assess other impacts, including wider benefits. The OA could then relate these directly to the logic model and SMART objectives. The OA could also consider any external factors that will have an impact on the success of the intervention.