A leading travel industry lawyer believes the government’s flight-plus regulations will bring airlines into the Atol scheme despite Department for Transport (DfT) insistence that this requires primary legislation by Parliament.

Peter Stewart, a partner at Field Fisher Waterhouse, drops this bombshell in an editorial in the September issue of Travel Law Quarterly, published today. He describes the view that the Atol scheme can be extended solely by primary legislation as a “fallacy” and insists “flight-plus, surprisingly and inadvertently, does include airlines”.

Stewart writes: “There is no regulation which specifically states . . . that operators of an aircraft are excluded from the Flight-Plus provisions. It may be that the architects of Flight-Plus believe airlines are excluded . . . [However] it is incontrovertible that airlines fall within flight-plus.”

Stewart is a leading expert on Atol having successfully represented Abta in legal cases against the CAA’s implementation of the protection and Travel Republic when it faced criminal proceedings for alleged breaches of the law. An extract from his argument has been published on travelweekly.co.uk today (September 13), along with a link to the full article.

If Stewart is right, the DfT faces a choice between changing the draft regulations – and delaying implementation – or risking a legal challenge. He told Travel Weekly: “Airlines are subject to flight-plus. The draft regulations do include airlines. If an airline sells a flight-plus holiday, the carrier will be responsible to the customer.

“The draft regulation document does not exclude airlines from the definition of a flight-plus arranger. If the DfT wants to exclude them it would have to say ‘an airline is not a flight-plus arranger’.”

He added: “Nobody has raised this before. The government has several options. It can choose to ignore this, it can take the view that I’m wrong, or it can amend the regulations.”

A change to the regulations at this stage would leave the consultation on reform – due to end on Thursday – open to challenge on the grounds of not being “genuine”. The only way to avoid that would be to hold a fresh consultation, pushing back the flight-plus start date.

Stewart said: “I suspect the DfT and Civil Aviation Authority believe the draft regulations do not cover airlines. I think that is a mistake. They may believe airlines cannot be included in flight-plus because that would be ultra vires [beyond the authority of the regulations]. I’m not convinced that is correct. It is debatable whether a carrier could seek to avoid a claim on those grounds.”

Vantage professor of travel law David Grant, who publishes the Travel Law Quarterly, said: “The repercussions are staggering. For years, tour operators have wanted airlines brought within the Atol provisions. If Peter Stewart is right, we have all been guilty of thinking primary legislation was needed when it wasn’t.”