On 19 November 2020 the House of Lords is due to debate the draft Law Enforcement and Security (Amendment) (EU Exit) Regulations 2020. These regulations were laid under the draft affirmative procedure. This means they must be approved by both Houses before they can be brought into force.

The purpose of the instrument is to implement the Protocol on Ireland/Northern Ireland (‘the Protocol’) regarding the regulation of explosive precursors and firearms.

Why are these regulations being introduced?

As a member state of the EU, the UK participated in the EU’s regulatory regime for firearms and ‘explosives precursors’, defined by the European Commission as “chemical substances that can be used for legitimate purposes, but […] can also be misused to manufacture homemade explosives”.

These laws continue to apply in the UK during the transition period. Some of the rules have been enacted in UK domestic law, while some are EU laws that apply directly to the UK. Under the European Union (Withdrawal) Act 2018 (as amended), EU laws that apply directly will be retained as part of UK domestic law at the end of the transition period, on 31 December 2020.

In 2019, Parliament passed the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 (‘the 2019 regulations’). These regulations, which will take effect after 31 December 2020, made minor changes to the retained EU law to ensure it continues to be operable after the end of the transition period. The changes included amending references to the EU, EU institutions and EU administrative processes to UK equivalents and updating legal references to refer to relevant UK legislation.

Since the 2019 regulations were passed, the Protocol on Ireland/Northern Ireland has been agreed. This states that certain provisions of EU law will continue to apply in Northern Ireland after the end of the transition period. The EU’s firearms and explosives precursors laws are among those that will continue to apply in Northern Ireland.

The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2020 (‘the 2020 regulations’) would make amendments to existing legislation to reflect the fact that these EU laws will continue to apply in Northern Ireland after the end of the transition period.

What does the current law do?

The UK is currently subject to certain security-related EU laws, including Regulation EU No 98/2013 on the marketing and use of explosives precursors (‘the precursors regulation’) and Council Directive 91/477/EEC on control of the acquisition and possession of weapons (‘the firearms directive’).

The precursors regulation governs the supply and use of “substances or mixtures that could be misused for the illicit manufacture of explosives”, also known as explosives precursors. The aim of the regulation is to limit availability of these substances to the general public and ensure that suspicious transactions are reported. Among other things, the regulation provides that EU member states may maintain a licensing regime allowing for explosives precursors to be acquired, imported, possessed or used by the public and that authorities may recognise licenses issued in other member states.

The firearms directive makes provisions relating to firearms and weapons. This includes provisions that:

  • require member states to check the “private and professional integrity” of dealers of certain types of firearm;
  • govern who can own different types of firearm;
  • require member states to prohibit certain types of firearm, such as automatic weapons;
  • establish the European firearms pass, verifying that a person possesses a firearm lawfully;
  • set out that people may only acquire or possess certain types of firearm if expressly authorised by a member state; and
  • establish procedures for moving firearms between member states.

As a regulation, the precursors regulation applies directly in all EU member states. In contrast, member states were required to implement the firearms directive in domestic law. The Firearms (Northern Ireland) Order 2004 transposed Council Directive 91/477/EEC into domestic law in Northern Ireland.

Regarding explosives precursors, the 2019 regulations made amendments to ensure that after the end of the transition period the existing regulatory regime in the UK will operate largely the same as before exit day. However licenses issued by UK bodies will no longer be recognised in the EU.

Regarding firearms, the 2019 regulations maintained the existing regime of controls after the end of the transition period. The instrument removed reciprocal arrangements with other EU states, such as the European firearms pass. The 2019 regulations also made amendments to the Firearms (Northern Ireland) Order 2004 in anticipation of Northern Ireland no longer being subject to the firearms directive after the end of the transition period.

What would the 2020 regulations do?

Explosives precursors

Regarding explosives precursors, the 2020 regulations would make changes to the 2019 regulations to reflect the fact that the precursors regulation will continue to apply in Northern Ireland after the end of the transition period.

Under the Protocol, Northern Ireland is generally treated as if it were a member state insofar as EU rules apply to the UK in respect of Northern Ireland. However, the UK cannot, in respect of Northern Ireland, invoke the country of origin principle or mutual recognition for activities performed by authorities or bodies established in the UK.

This means that explosives precursors licenses issued under Great Britain legislation will not be recognised in Northern Ireland from 1 January 2021. The explanatory memorandum to the 2020 regulations states that from 1 January 2021 such licenses must be obtained from the Northern Ireland Office. According to the European Commission, explosive precursors licenses issued by relevant Northern Ireland bodies after the end of the transition period will not be valid in the EU.

Firearms

Regarding firearms, the 2020 regulations would revoke the elements of the 2019 regulations that amend the Firearms (Northern Ireland) Order 2004. This is so that the firearms directive can continue to be implemented in Northern Ireland. The instrument would also make amendments to the 2004 Order and to the retained EU law on the deactivation of firearms so that this legislation takes account of the continued application of the firearms directive in Northern Ireland.

The European Commission has stated that the “movements of firearms between Northern Ireland and the EU are not considered as imports or exports”. This is because Northern Ireland is generally treated as an EU member state under the Protocol.

The House of Commons European Scrutiny Committee has questioned whether residents of Northern Ireland will be able to apply for a European firearms pass after the end of the transition period. The Government guidance on its website states that “UK residents who want to travel to the EU with their firearms or shotguns will no longer be able to apply for a European firearms pass (EFP) from 1 January 2021”. However, in a letter to the Committee on 7 October 2020, Security Minister James Brokenshire said the Government would bring forward measures to ensure the firearms pass remained in operation in Northern Ireland:

We are currently working with the Department of Justice to bring forward amendments to reverse/amend the provisions in The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 which would have revoked the relevant provisions of the Firearms (Northern Ireland) Order 2004, so that Order will continue to provide for the issuing and recognition of EFPs. This means that Northern Ireland residents will still be able to request an EFP after transition and to use it to take a lawfully owned firearm to an EU country, including the Republic of Ireland, from 1 January 2021.

These measures are contained in the 2020 regulations.

The European Commission states that European firearms passes issued to people in Great Britain will not be valid after the end of the transition period. However, “the European firearms pass issued prior to the end of the transition period in respect of persons in Northern Ireland remains valid”.

The regulations have been considered by the House of Lords Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments. Neither raised any concerns.

Image by Pete Linforth from Pixabay.