5Northern Ireland Protocol: continued application of EU firearms laws34
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This EU document is politically important because:
Action
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Overview
5.1This Commission Communication sets out the main elements of the EU Action Plan on Firearms Trafficking for the period 2020–25. The illicit trafficking, distribution and use of firearms increases the threat posed by organised crime and terrorism. The purpose of the Action Plan—which is not legally binding—is to establish a framework for cooperation between the EU and the main source countries for illicit weapons in the EU’s neighbourhood (the Western Balkans, Moldova and Ukraine). Our Twenty-second Report provides an overview of the main themes set out in the Action Plan and the specific actions the EU intends to take in the period 2020–25.35
5.2A key priority highlighted in the Action Plan is the correct implementation of the EU Firearms Directive,36 with the Commission observing that “Member States are notably still far from having fully transposed and implemented the Firearms Directive” and that it will “step up its commitment to ensure that the Firearms Directive and its corresponding delegated and implementing acts are correctly transposed and effectively enforced by all Member States […] using all the powers given by the Treaty to that effect”.37 The Directive forms part of the retained EU law which will continue to apply in the UK under the European Union (Withdrawal) Act 2018.
5.3In our letter of 24 September 2020, we asked the Security Minister (Rt Hon. James Brokenshire MP) whether he was satisfied that UK domestic law complied fully with the Directive. We also requested further information on:
- the steps the Government intended to take to avoid any unnecessary friction or divergence in the laws applicable in different parts of the UK after transition;
- whether Northern Ireland residents would still be able to request a European Firearms Pass after transition; and
- whether Northern Ireland would continue to participate in the information exchange mechanisms provided for in the Directive—and, if not, what assessment the Government had made of the possible impact on the operational effectiveness of cross-border law enforcement on the island of Ireland.
UK implementation of the EU Firearms Directive
5.4In his letter of 7 October 2020, the Minister recognises that the UK is under a legal obligation to implement the Directive and that the Commission could bring infraction proceedings against the UK if it considered that UK domestic law was not fully compliant. He continues:
We responded to the Commission most recently in June setting out the steps we are taking to meet the final requirements of Directive (EU) 2017/853 with a later implementation date of December 2019. We have not heard back from the Commission or received any indication that the transposition measures we notified, which we keep under regular review, fail to meet our obligations.38
We have also recently notified transposition of two further implementing Directives 2019/0068 and 2019/0069 which relate to technical specifications for marking firearms and their components and the establishment of technical specifications for alarm and signal weapons—more commonly known as blank firers here—aimed at ensuring that such devices cannot be converted to fire live ammunition. Currently these specifications only apply to Great Britain but Northern Ireland have undertaken to make equivalent regulations as soon as possible using their powers under Paragraph 7 of Schedule 2 to the Violent Crime Reduction Act 2006.
Alignment of law across the UK after transition
5.5While the UK will be under no legal obligation to keep in step with changes to the Directive made after 31 December 2020 (when the post-exit transition period ends) or to give effect to measures made under it, Northern Ireland will because the Directive is one of the EU laws listed in Annex 2 of the Protocol on Ireland/Northern Ireland (“the Northern Ireland Protocol”) which will continue to apply in Northern Ireland after 31 December 2020. We noted in our earlier Report that the Directive does not require full regulatory alignment across the EU as it establishes common minimum rules, leaving Member States free to exceed them by including more stringent provisions in their national laws should they choose to do so. We asked, nonetheless, whether we were right to assume that the Government would wish to maintain close alignment of laws on legally owned firearms across the UK and, whether, as a consequence, domestic firearms laws in the UK would remain in lockstep with the Directive (and changes made to it) after transition to avoid any unnecessary friction or divergence in the laws applicable in different parts of the UK.
5.6In his response, the Minister notes that firearms law (with the exception of prohibited weapons) is devolved in Northern Ireland so there has always been the possibility of policy divergence from Great Britain. He continues:
Northern Ireland has historically had its own separate legislation although has tended to align with GB, except in relation to handguns which for historical reasons have been permitted in Northern Ireland. As you recognise, the Directive is essentially a harmonisation measure and under Article 3 Member States can include more stringent provisions in their national laws should they choose to do so. This is a provision which the UK has used on a number of occasions in favour of our own tough controls.
Given it is listed as one of the EU laws included in Annex 2 of the Protocol, Northern Ireland is required to align with the European Firearms Directive and at the end of the Transition Period we will be in a position where the EU, NI and GB will already have harmonised firearms legislation in place. I would broadly agree with your assumption that the Government will wish to maintain close alignment of our domestic laws on the legal ownership of firearms within the UK. That is not to say that domestic firearms laws in the UK will remain in lockstep with the Directive (and any changes made to it) after transition. The UK has historically had stricter controls than other EU Member States and any tightening of EU controls is likely to simply bring EU legislation in line with our own. However, we would wish to consider adopting any proposed measures which would strengthen our respective firearms controls and help preserve security and public safety.
5.7The Minister concludes:
Overall, we believe the risks associated with policy divergence from an EU or GB perspective are minimal. Furthermore, the potential illicit flow of illegal firearms from the EU, into NI and onto GB is an aspect of serious organised crime already under consideration as part of ongoing work to mitigate the security risks arising from implementation of the Protocol.
Availability of the European Firearms Pass after transition
5.8We noted in our earlier Report that the Directive allows individuals lawfully in possession of a firearm to obtain a European Firearms Pass to travel (with their firearm) to another EU country. Guidance issued by the Home Office on 30 October 2019 stated that the European Firearms Pass would not be available when EU law ceased to apply to the UK at the end of the post-exit transition period. The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 remove those parts of the law in Northern Ireland (The Firearms (Northern Ireland) Order 2004) which refer to the European Firearms Pass. We asked the Minister whether it was indeed the case that Northern Ireland residents would no longer be able to request a European Firearms Pass after transition and that new export control and licensing arrangements would apply when taking a lawfully owned firearm to an EU country, including the Republic of Ireland, from 1 January 2021. We also asked whether the arrangements in Northern Ireland would be the same as in the rest of the UK.
5.9The Minister confirms that the European Firearms Pass (EFP) will not be available in Great Britain at the end of transition, but says it will remain valid in Northern Ireland under the terms of the Northern Ireland Protocol, adding:
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.
Information sharing
5.10Finally, we noted that recent changes to the EU Firearms Directive had sought to improve systems for exchanging information between EU countries. We asked whether Northern Ireland would continue to participate in these information exchange systems after transition and, if not, what assessment the Government had made of the possible impact on the operational effectiveness of cross-border law enforcement on the island of Ireland.
5.11The Minister responds:
The Department for International Trade has requested continued access to the EU’s Internal Market Information (IMI) system—the system which governs intra EU movements of firearms —for the purpose of tracking firearms entering into Northern Ireland. As is currently the case, there will continue to be an organised crime threat across the Irish land border. In order to guard against potential abuse of the Protocol arrangements, the Home Office are taking a ‘whole system’ coordinated approach to manage the risk of illicit goods entering the UK, working closely with the Northern Ireland Office, Devolved Administrations, Police Service of Northern Ireland, Transition Taskforce, HMRC and others.
Action
5.12Write to the Minister asking him to inform us:
- if the European Commission decides to bring infringement proceedings against the UK before (as regards the UK as a whole) or after (in relation to the UK in respect of Northern Ireland) the end of the post-exit transition period on the grounds that it considers the UK’s implementation of the Directive to be deficient;
- when/if the UK’s application to remain part of the EU’s Internal Market Information system has been accepted by the European Union and whether it is dependent on the outcome of future relationship negotiations; and
- when further details will be available on the Government’s “whole system” coordinated approach to managing the risk of illicit goods entering the UK from 1 January 2021.
Letter to the Minister for Security (Rt Hon. James Brokenshire MP), Home Office
Thank you for your letter of 7 October 2020 which supplements the information you provided in your Explanatory Memorandum of 28 August 2020 on the Commission Communication establishing an EU Action Plan on Firearms Trafficking for the period 2020–25. Your response addresses concerns raised in my letter of 24 September 2020 and our Twenty-second Report agreed on the same date.
We note your expectation that the Government will wish to maintain close alignment of the laws applicable in Northern Ireland and in the rest of the UK on the legal ownership of firearms and your openness to adopting any proposed measures which would strengthen firearms controls and help preserve security and public safety across the UK and the EU. We retain a keen interest in developments in this area, both in relation to the rules applicable to the market in legally owned firearms and wider efforts to tackle illegal trafficking. We therefore ask you to:
- inform us promptly if the European Commission decides to bring infringement proceedings against the UK before (as regards the UK as a whole) or after (in relation to the UK in respect of Northern Ireland) the end of the post-exit transition period on the grounds that it considers the UK’s implementation of the Directive to be deficient;
- update us on the UK’s application to remain part of the EU’s Internal Market Information system and whether UK participation is dependent on the outcome of future relationship negotiations; and
- indicate when further details will be available on the Government’s “whole system” coordinated approach to manage the risk of illicit goods entering the UK.
We look forward to receiving this information at the earliest opportunity.
34 Commission Communication: 2020–2025 EU action plan on firearms trafficking; Council number 10035/20 + ADD 1, COM(20) 608; Legal base: —; Department: Home Office; Devolved Administrations consulted; ESC number 41428.
35 See our Twenty-second Report HC 229–xviii (2019–21), chapter 6 (24 September 2020).
36 Directive (EU) 2017/853 amending Council Directive 91/477/EEC on control of the acquisition and possession of weapons.
37 See p.4 of the Communication.
38 Most of the provisions of the Directive had to be given effect in domestic law by 14 September 2018.
Published: 27 October 2020