Legally and politically important
Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee
Proposal for a Directive amending Council Directive 91/447/EEC on the control of the acquisition and possession of weapons
Article 114 TFEU, ordinary legislative procedure, QMV
(37338), 14422/15, COM(15) 750
8.1This complex and technical proposal—a response to recent terrorist attacks in Europe—would amend the existing Firearms Directive (in force since 1 January 1993) to strengthen controls on the acquisition and possession of firearms for civilian use and their movement within the EU. The proposal reflects many of the recommendations made in an independent evaluation of the Firearms Directive which highlighted inconsistencies in its interpretation and application by Member States. The changes are intended to make it more difficult to acquire firearms (including those that have been deactivated), improve traceability, strengthen cooperation between Member States through a more systematic exchange of information, and establish common standards on deactivation (to ensure that firearms are rendered “irreversibly inoperable”) and on the marking of firearms.
8.2The Government supports the Commission’s efforts to strengthen firearms legislation, highlighting “the paramount need to prevent firearms being diverted by criminals and terrorists from licit markets” but has identified a number of concerns with some of the detailed changes proposed by the Commission. It abstained during the vote in Council in June establishing the Council’s position for trilogue negotiations with the European Parliament which began at the end of September.
8.3The rapid pace of negotiations and the uncertain timescale for the UK’s withdrawal from the EU following the June referendum mean that there is every prospect that the proposed Directive will take effect before the UK leaves the EU and that the UK will be bound to implement its provisions. When we last considered the proposed Directive in July, we requested further information on the changes agreed by the Council and expressed concern that they would not only add to the complexity of the proposal but also make the revised EU legal framework more difficult to understand and apply in practice. We asked the Government to:
8.4The Minister for Policing and the Fire Service (Brandon Lewis) “remains hopeful” that the changes agreed by the Council in June “will bring consistency in the application of the Directive across the EU”. He believes that they “do not go as far as they might in order effectively to tackle the risks of criminals and terrorists being able to access dangerous firearms” but says that the Government is “continuing to work closely with Member States to develop better intelligence on the threat posed by firearms” and improve the gathering and sharing of intelligence. He confirms that the UK is “actively engaged and will continue to work with our European partners on the Firearms Directive” and adds:
“As the UK remains bound by the rights and obligations of EU membership until we exit the EU, if the measure comes into force before the UK leaves the EU, I agree that the UK will be bound to implement its provisions.”
8.5We thank the Minister for his helpful response. We note his concern that the changes proposed to EU firearms legislation “do not go as far they might” and ask him to explain how the text agreed by the Council falls short and how it should be strengthened. We also ask him to summarise the Government’s position on the main changes proposed by the European Parliament and to indicate which changes the Government is willing to accept and which it intends to oppose.
8.6The Checklist provided by the Minister states that the UK already has comprehensive firearms controls, but adds that some elements of the proposed Directive are likely to require amendments to primary and secondary legislation if they are agreed and take effect before the UK leaves the EU. We note that one of the main objectives of the proposed Directive is to ensure a more consistent approach to the control of firearms across the EU, minimising the scope for regulatory gaps which may be exploited by criminals. We ask the Minister whether the Government would wish to keep in step with EU legislation on the control of firearms once the UK has left the EU and how great a risk there is of lethal weaponry falling into the wrong hands if there is a significant divergence in UK and EU laws.
8.7Given the rapid pace of negotiations, we ask the Minister to provide regular updates on the progress of trilogue negotiations and to set out clearly the Government’s position on any compromise text agreed. Meanwhile, the proposed Directive remains under scrutiny. We draw the latest developments to the attention of the Home Affairs Committee.
8.8Our earlier Reports listed at the end of this chapter provide an overview of the proposed Directive, the Government’s position and the concerns raised by stakeholders.
8.9A recurring concern during our scrutiny of the proposed Directive has been to avoid replicating at EU level the weaknesses in domestic firearms legislation which were identified in the Law Commission report, Firearms Law—Reforms to Address Pressing Problems, published in December 2015. The Law Commission said that the current law in the UK was “so complex that even those who deal with it every day struggle to understand aspects of it” and added that it was “difficult to find”, lacked coherence, and contained loopholes which criminals were able to exploit. In February, the Government announced that it intended to take forward the Law Commission’s recommendations for reform. We have expressed concern that the piecemeal approach taken by the European Commission would do little to foster public understanding of the EU legal framework, make it more accessible or enhance legal certainty, since it would add a further set of amendments to an already complex law without consolidating the changes made to the Firearms Directive since its adoption in 1991.
8.10The Minister responds to the concern we expressed in July that the Government had failed to provide us with a copy of the compromise text on which the Council’s general approach was likely to be based before it was put to the Council for agreement on 10 June. He comments:
“I am sorry that a copy of the final compromise text was not provided to the Committee before their meeting on 8 June. This was because there were a number of iterations of the text issued between 25 May and 6 June and the final compromise text was not issued until 8 June. However, it was my predecessor’s intention to issue his letter to you before your 8 June meeting and I apologise that this did not happen.”
8.11We noted that the Council had made substantial changes to the Commission’s original proposal which would give far more discretion to Member States to decide whether or not to require a medical test before authorising the possession of certain weapons and whether to depart from the rules prohibiting private ownership of the most lethal (Category A) firearms. One of the weaknesses identified in the evaluation of the existing Firearms Directive (described in our earlier Reports) was that some of its key provisions are interpreted differently by Member States, leading to differences in its application at national level. We asked the Government whether the Council’s changes would make differences of interpretation and application more, rather than less, likely and undermine the objective of ensuring a more uniform application of the Directive throughout the EU. The Minister observes:
“The negotiations have been helpful in establishing a common understanding of some definitions, for example, rationalising the definitions of ‘parts’ and ‘essential components’ and clarifying what is meant by salute and acoustic weapons. We remain hopeful that this will bring consistency in the application of the Directive across the EU.
“However, as you highlight, Member States will have discretion in some areas, for example, medical tests and authorisation of acquisition and possession of prohibited weapons in certain circumstances. I acknowledge there is a risk that this may undermine the consistency of approach. Given the limited number of discretionary provisions, I do not consider this to be a significant risk; furthermore, the discretionary measures offer a degree of flexibility for the UK to implement the Directive in line with existing firearms legislation and practice.”
8.12We drew the Government’s attention to the Written Ministerial Statement of 15 June made by the then Home Secretary (Mrs Theresa May) in which she welcomed the progress made in negotiations but “underlined the potential to go even further in ensuring appropriately high standards of regulation”. We invited the Minister to explain where the current proposal falls short and what further steps the Government intends to take to strengthen the EU’s regulatory framework. He responds:
“I fully support the former Home Secretary’s statement of 15 June. Our main concern is that the proposals do not go as far as they might in order effectively to tackle the risks of criminals and terrorists being able to access dangerous firearms. We are continuing to work closely with Member States to develop better intelligence on the threat posed by firearms, so that we are better able to intercept firearms before they get into the hands of organised criminals and terrorists. We need to gather that intelligence effectively, share it through bilateral cooperation and Europol’s firearms focal point, and act on it.”
8.13The Minister explains that any changes to law and practice in the UK will depend on the outcome of trilogue negotiations involving the Council, European Parliament and Commission, but anticipates that the most likely changes will concern:
8.14He adds that the Government will “consider how best to implement these changes (including through any necessary changes to legislation) once the text has been agreed”.
8.15The Minister believes that UK law is already compliant with the discretionary provisions on medical tests introduced by the Council:
“A new system designed to minimise the chance of a medically unfit person gaining access to firearms was introduced on 1 April 2016, with the aim of bringing in better information sharing between GPs and police to safeguard the public. As well as being asked about an applicant’s relevant medical conditions, GPs are now asked to place a firearm reminder code on the records of patients who are firearm or shotgun certificate holders.”
8.16He does not anticipate that implementation of the discretionary provisions on the acquisition and possession of the most lethal (Category A) firearms will present any particular difficulties for the UK:
“As the existing Directive allows for this, there are processes already in place if, for example, a company or museum requires a category A firearm. This is covered in chapter 3 paragraph 3.27 of the Home Office Guide on Firearms Licensing Law.”
8.17We noted that the Council’s general approach includes new recitals indicating that the proposed amending Directive is a development of the Schengen rulebook. We asked the Government whether it agrees that that the proposal is a Schengen-building measure, which specific provisions constitute a development of Schengen, and whether the UK’s Schengen opt-out Protocol applies. The Minister responds:
“The proposal is only considered to be a Schengen building measure for Iceland, Norway, Switzerland and Liechtenstein (the Associated States). In the Associated States agreements to apply the Schengen acquis, they agreed to apply:
i)the Schengen acquis, as defined for the Member States;
ii)provisions of certain EU acts, which were not considered to be part of the Schengen acquis for the Member States; and
iii)acts and measures building on (i) and (ii).
“The Firearms Directive, and measures building on it (such as the proposal), do fall within the scope of the Associated States agreements with the EU to apply the Schengen acquis. However, as they are included in the second category above, they do not fall within the definition of the Schengen acquis for the Member States. The proposal is not, therefore, a Schengen building measure for the UK. Consequently, Protocol 19 (the Schengen Protocol) does not apply to this proposal for the UK.”
8.18The Minister explains that the rapporteur for the Directive in the European Parliament is Vicky Ford MEP who chairs the Committee on the Internal Market and Consumer Protection (IMCO). IMCO voted on the Parliament’s first reading position in July—the text approved by IMCO will provide the basis for trilogue negotiations with the Council and Commission (the first trilogue meeting was scheduled for the 27th September).
8.19The Minister provides a copy of the Government’s Checklist (also dated 27 September 2016) which identifies the groups likely to be affected by the proposed Directive (public and private sector bodies as well as private individuals), sets out the costs and benefits (including for law enforcement) and explains that changes may be required to primary and secondary legislation.
14 See the Commission .
15 See the of 9 May 2016 from the former Minister for Policing, Fire, Criminal Justice and Victims (Mike Penning) to the Chair of the European Scrutiny Committee.
16 See the agreed by the Council on 10 June 2016.
17 There are four Categories. Category A firearms (fully automatic and military weapons) are prohibited; Category B firearms (repeating or semi-automatic weapons) require specific authorisation; Category C firearms (certain single-shot firearms and less dangerous semi-automatic weapons) must be declared to the authorities; and Category D firearms (other types of single-shot firearms) for which there is no need for a declaration or authorisation.
18 See the then Home Secretary’s of 15 June 2016, HC WS45, 15 June 2016.
19 See the , April 2016.
20 See the issued by the European Parliament on 13 July 2016.
21 See the Government’s .
14 October 2016