Has the Department for Transport dropped a Flight-Plus clanger?

by Peter Stewart, partner at Field Fisher Waterhouse

The architects of flight-plus deserve considerable praise. They have set out to extend the Atol scheme to multiple travel products booked contemporaneously and to make obvious avoidance steps difficult to achieve. In the main they have succeeded.

What flight-plus does is expose the fallacy that the Atol footprint could not be extended without primary legislation. The dogged retention of this fallacy has cost taxpayers many millions and created years of delay in reform of the Atol scheme.

However, what flight-plus surprisingly and seemingly inadvertently does is include airlines. My view is not one which has hitherto been expressed and runs contrary to the comments in the consultation document.

The draft regulations say that a flight-plus arranger is someone who, as principal or agent, makes available flight accommodation in response to a request which has been made directly to them by a consumer.

Obviously only a person entitled to make available flight accommodation can do so – that is an airline, an Atol holder or an exempted person (which includes a right-to-fly provider).

The draft regulations go on to say that a flight-plus arranger is someone who has taken steps to include, facilitate or enable, or intended to include, facilitate or enable, the flight accommodation being a component of flight-plus. Hence, at this point, a flight-plus arranger will still be an airline, an Atol holder or an exempted person, including a right-to-fly provider.

Finally, the draft regulations stipulate that a person cannot make flight accommodation available as part of flight-plus in the capacity of a right to fly provider. And that is it. There is nothing which states a flight-plus arranger must hold an Atol. On the basis of the draft regulations, a flight-plus arranger will be an airline, an Atol holder or an exempt person other than a right-to-fly provider.

The consultation document states that “. . . the draft regulations require a business to hold an Atol licence in order to make available flight accommodation” as part of flight-plus. That may have been what was intended but it is not what the draft regulations say. There is no regulation which specifically states, for example, that a flight-plus arranger must hold an Atol or that operators of an aircraft are excluded from flight-plus provisions.

It may be that the architects of flight-plus believe airlines are excluded because there is no legal power to include them through secondary legislation. The consultation document clearly states that airlines could only be brought into the scope of the Atol scheme by primary legislation. Is this right? If it is, does it mean that airlines are actually excluded from the draft regulations or that they simply have a potential defence to certain claims?

It is incontrovertible that airlines fall within flight-plus. Whether that is ultra vires is perhaps less certain. The regulations illustrate how easy, and by extension, how logical it is to include airlines.

* The full text of this article appears as an editorial in the latest edition of Travel Law Quarterly, published today and available here.

The Quarterly is published by Vantage professor of travel law David Grant, who will address a seminar on liability for excursions in London on Thursday (Sept 15). Full details of the free seminar can be found on the Vantage website.

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