Drones: some legal sightlines

In May 2018, the Government announced revised laws on drone regulation. This was met with concern by many who said it didn’t go far enough. The British Airline Pilots’ Association felt it wouldn’t make drone use near airports safe, giving the example that the new law provided drones could be flown up to 400 ft within 1 km of an airport boundary – highly dangerous when an aircraft would already be lower than 1 km from the ground at this point on approach to an airport.

What seemed like a fairly basic lack of consultation and drafting was highlighted only 6 months later when, in the week before Christmas, Gatwick airport was shut first for 36 hours and then again for half a day only two days later after reports of drones being sighted near the airport. To make matters worse, the sightings seemed to lack detail in terms of the number of drones, their position relative to the airport and the way in which the reports were made. In the confusion that ensued, what could have caused a major accident or security incident demonstrated the law regulating drone use and policing of it to be shambolic. The Government responded promptly this time, by rushing through new regulations, but flash forward a week when at the beginning of January, Heathrow was also shut for four hours following a sighting of a drone near the airport. Why is it that after two changes to the law, there remains a grave threat to personal safety and business disruption? How? What’s wrong with our law and our approach to drones?

New regulations

The new regulations to prevent drones being flown within 2.5 nautical miles (about 4.6 km) of the perimeter of any certificated airports (there are 46 such aerodromes in the UK) and within a 5 km long, 1 km wide lane centred on the end of each runway. Some commentators have suggested this creates a no-fly zone that looks like a London Underground logo. The new powers will update the Air Navigation Order and were published in the jauntily titled “Taking Flight: The Future of Drones in the UK, Government Response.” A quick scan of this 73 page consultation and report shows that measures are in place to police this – literally. It provides powers to the police to hand out on the spot fines to drone users in breach of the regulations and requires all drone operators to be registered by 30 November 2019 and complete an online competency test. Commercial drone operators will continue to be able to operate outside of the airspace restrictions, with permission from the CAA and on the basis of meeting strict safety conditions.

Unless you have been holed up in a shepherd’s hut in the Cotswolds or enjoying the ‘life of Donna’ on an island off Croatia for the last two and a half years, you probably realise the Government has got a lot on at the moment, but consultation on this subject has been ongoing since 2017 and, as the incidents at Gatwick and Heathrow demonstrate (approximately 141,000 passengers were affected and losses to Gatwick Airport alone as a consequence are expected to exceed £20m), this is important. Add to this that, whilst in 2016 there were 50 reports from pilots of commercial airliners that their aircraft had almost hit a drone, the figure more than quadrupled in 2018 with 117 near misses recorded in the first six months of 2018 alone. Military aviation is not immune to this either despite usually having clearly marked restricted access around them. There have been near misses with Royal Airforce Chinooks at Benson and Odiham as well as aircraft at Cranwell and even a Navy Lynx, which missed a drone by 50 ft at a height of 2,000 ft in airspace where speed and margins for error diminish exponentially.

Effectiveness of the new legislation

In light of this, one obvious question is how effective this latest tweak to the legislation will be given the shortness of time between 2018 and the 2019 regulations.

To answer this, here is a quick review of the key points of drone law as it stood in May 2018 and the position now (January 2019).

  • No fly zone around airports/airfields: 1 km from an airfield; now5 nautical miles from airport, 2.5 nautical miles from the end of a runway
  • Penalty for acting “recklessly or negligently in a manner likely to endanger an aircraft or any person in an aircraft”: an unlimited fine and a prison sentence of up to 5 years; no change.
  • No fly zone around people and property (unless with permission or if you own the property over-flown): 50 m; no change.
  • No fly zone in congested areas (towns/cities etc) or where more than 1,000 people are gathered (festivals etc): 150 m; no change.
  • Ceiling: 122 m (400 ft); no change.
  • Sight line: drones must be kept in visual line of sight; no change.
  • Penalty for breach of sightline or other minor breaches: “fixed penalty notices to those disregarding drone rules”; now fixed penalty of £100 for minor drone-related offences, issued by the police.
  • Registration of user: required for commercial users, registration with CAA; now all users to register by 30 November 2019.
  • Minimum age restriction: now to be introduced.
  • Penalty for non-registration: £1,000 fine; no change.
  • Commercial/non-commercial distinction: unmanned Aerial Vehicle or Large Model Aircraft weighing 20 kg (44 lbs) or more without fuel; now under 20 kg without fuel.
  • Public liability insurance: required to hold competency qualification for commercial flights; now still not required for domestic use.

Hobbyists vs professional users

A second wider question is perhaps how effective can the law ever be when the dynamics between hobby-users and commercial operations are so different?

The above summary of the law is a deliberate simplification which is complicated by the CAA regulations and requirements for consents for commercial users. What it does show though is that the treatment of both hobby and professional users is the same – as it should be for all airspace. The difference between recreational and commercial use is signified and regulated according to the weight of the machine. This is possibly an increasingly artificial and arbitrary distinction bearing in mind that the law is playing catch up with build-technology. Acknowledging this, the government has, for the last two years, been working in consultation with drone manufacturers to introduce new technologies such as geo-fencing to help to make sure drones are used in accordance with the law. The danger is that this technology is too easy to hack or circumvent and, although the penalties have been increased, these may not be sufficient deterrent and whilst detection (of what is literally a ‘moving target’) is so difficult, prosecutions will be limited.

There is no doubt that a large contingent of the drone user community is responsible, follows the Dronesafe Code and would fiercely condemn the type of use that has made headlines in the last 2 months. But what about those who use them irresponsibly or with malice? I use the term “malice” to indicate the criminal nature of use by some who are reckless (such as this concept still exists under US or Scottish law). Most users would agree that they follow the Civil Aviation Authority’s Dronecode. This is in effect a handy mnemonic to remind drone users about what’s safe and legal:

Don’t fly near airports or airfields

Remember to stay below 400ft (120 m)

Observe your drone at all times – stay 150 ft (50 m) away from people and property

Never fly near aircraft

Enjoy responsibly

But as the technology of toys becomes increasingly adaptable for commercial use and the use-cases for unmanned aerial vehicle (UAV) delivery, surveying, asset preservation, surveillance and the “floating market” become better known, these may seem as quaint as the CAA rules on kite flying or the 1930s World Air Code with its talk of dirigibles!

Impact on the aeronautics industry

Two years ago, the European sky ATM research joint undertaking issued the European drones Outlook Study, concluding that in Europe (including the UK, for now) commercial UAV businesses directly employ more than 100,000 people and “have an economic impact exceeding €10 billion per year, mainly in services”. The report anticipates that in the next 10 years, the sector could account for 10 per cent of the EU’s aviation market and create more than 150,000 new jobs, making recognition of this sector important both in economic and regulatory terms.

Across Europe, UAVs under 150 kg are regulated at national level, leading to inconsistent laws across the continent. Given the scope for cross-border non-pilot flight, the need for standardisation is obvious. The new rules proposed by the report call for standardisation of drone parts, engines and remote controls, to ensure that operators and manufacturers respect safety, privacy, personal data and the environment. The rules call for serial numbers that can be linked back to purchasers and users, geo-fencing technology, inclusion of technology to minimise noise and air pollution and non-circumvention software. Every drone will be identifiable and must be registered so that damage or injury can be tracked back to the operator. The report goes on to detail next steps to achieve this.

The report concludes that: “As civil aviation evolves towards more automation, drone technology will also be crucial for the competitiveness of the European aeronautics industry as a whole.”

As we crash out of Europe (for richer for poorer, for better or worse etc), we need to think about what laws we will take with us and which need to be made fit for purpose. Our high creative, thriving tech sector and our world-renowned aeronautical engineering industries should be trailblazing in the UAV field, or at least making furious efforts to ensure our law facilitates forward thinking use and world-class regulation of drone technology in the UK. There is some noise from the UK sector on the subject, but it’s hardly a clamour.

Compulsory use of drone safety apps such as “Drone Assist” (created by NATS, the UK’s main air traffic control provider), may be one obvious and relatively easy way to assist in both safe use and operation as well as detection of unsafe practices. This app provides users with an interactive map of ground hazards and airspace used by commercial air traffic to help them avoid flying there – linking it to a no-fly command override in the UAV is a sensible next-step to prevent the app from being used inappropriately. The app already contains a “Fly Now” feature that enables users to share the UAV flight location with other app users and the wider drone community, helping to reduce collisions, and again this could be linked to automatic notification in the event of breach of geo-fences etc. Use of flight recorders is not yet required, but it is conceivable that cloud-based trackers may be compulsory (and factory fitted) in future.

In its report, the Government acknowledges that drones have “enormous potential to bring great benefits to the UK,” with the industry predicted by PWC to be worth £42 billion to the UK by 2030. Government acknowledges that “creating a blueprint for safe and secure use now is crucial to prepare for the future.” Our civil and criminal laws already have the scope to deal with private and public prosecutions for harm and injury caused by drones, but does additional regulation need to go further? The fact that safety is such a primary concern means almost certainly yes. The reality that drones are used irresponsibly reframes “almost certainly” to “definitely”. Our current law probably does not go far enough and does not have sufficiently clear sightlines to safely regulate the floating market.

Further reading

Department for Transport: Beyond the Horizon: The Future of UK Aviation: Next Steps Towards an Aviation Strategy

Department for Transport: Taking Flight: The Future of Drones in the UK

Park Insurance: Drone Insurance

PC Mag: Drone Regulations: What You Need to Know

Joanne Frears is IP & Technology Leader at Lionshead Law, a virtual law firm specialising in employment, immigration, commercial and technology law. She advises innovation clients on all manner of commercial and IP matters and is a regular speaker on future law. Email j.frears@lionsheadlaw.co.uk. Twitter @techlioness.