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Law Enforcement and Security (Amendment) (EU Exit) Regulations 2020

Volume 807: debated on Thursday 19 November 2020

Motion to Approve

Moved by

My Lords, these regulations relate only to the niche areas of explosives precursors and firearms. First, the provisions on explosives precursors have no impact on business. They will affect only a small number of members of the public based in Great Britain who also wish to acquire, import, possess or use explosives precursors in Northern Ireland. These are hobbyists who wish to make use of certain substances in both Great Britain and Northern Ireland, largely for leisure pursuits such as fuelling model cars or planes. Secondly, the provisions on firearms impact only on members of the public based in Great Britain who wish to travel to EU countries with their legally owned firearm.

These provisions make no changes to the legal requirements in the application process for the civilian possession of firearms in Northern Ireland or Great Britain, or to the movement of legally owned firearms between Great Britain and Northern Ireland. They do not have any effect on businesses.

I will set out the background as to why this SI is required. Last year, in preparation for the UK’s departure from the EU on 31 January 2020, the Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019 were laid by the Home Office. These regulations covered a wide range of security-related topics. Their purpose was to ensure that a number of existing regulatory regimes continued to operate in substantially the same manner as before exit day.

Your Lordships will be aware that the Northern Ireland protocol was agreed in October 2019. It was designed as a vehicle for implementing the UK’s exit from the EU in a way that worked for Northern Ireland—particularly and importantly as a means of maintaining the Belfast/Good Friday agreement, the gains of the peace process and the delicate balance within the community. It sets out arrangements necessary to address the unique circumstances on the island of Ireland, to maintain the conditions necessary for continued north-south co-operation, to avoid a hard land border and to protect the 1998 agreement in all its dimensions. Above all, it seeks to preserve Northern Ireland’s place within the UK.

The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2020 are needed in order to implement niche aspects of the protocol. They cover only explosives precursors and firearms and ensure that Northern Ireland continues to implement EU law on these two matters, as required by the protocol. They represent the necessary legislative building blocks to ensure readiness at the end of the transition period.

I turn first to the provisions on explosives precursors. The changes made by these regulations will ensure that domestic law does not contradict the EU regulations to which the Northern Ireland explosives precursors licensing regime will continue to be aligned. In Great Britain, the Home Office issues licences to members of the public to acquire, import, possess or use explosives precursors. This allows them to use these substances for specific hobbies such as propelling a model car or plane. These licences are currently recognised in Northern Ireland.

As a result of these regulations, the licences issued by the Home Office will no longer be valid in Northern Ireland. If a member of the public with a licence issued by the Home Office wishes to acquire, import, possess or use explosives precursors in Northern Ireland, they will require a separate licence, issued by the Northern Ireland Office. I understand that the Home Office intends to write to current Great Britain-based licence holders to make them aware of this change. Public guidance on the www.GOV.UK website will also be updated.

I turn now to explaining the changes brought about by these regulations in relation to firearms. Firearms are largely a devolved matter, responsibility for which sits with the Northern Ireland Department of Justice. Given that the UK Government’s priority is to ensure readiness for the end of the transition period, this matter has been included in the regulations. Northern Ireland Office officials have worked closely with officials from the Northern Ireland Department of Justice on the development of the regulations. The Northern Ireland Justice Minister has consented to the devolved aspects being legislated for at Westminster.

The regulations will ensure that Northern Ireland remains aligned with the EU weapons directive, which sets minimum standards for civilian firearms acquisition and possession. The specific impact of the regulations is that Northern Ireland will continue to issue and recognise the European firearms pass—a form of passport allowing lawful travel with a legal firearm across the EU and Northern Ireland. At the end of the transition period, Great Britain will no longer issue or be able to use the European firearms pass. The Home Office has engaged with relevant stakeholders across the UK, making it clear that residents of Great Britain will no longer be able to use or apply for the European firearms pass to travel with their legal firearm. Residents of Northern Ireland will, however, still be able to request a European firearms pass and use it to take a lawfully owned firearm to an EU country, including Ireland, from 1 January 2021.

The Law Enforcement and Security (Amendment) (EU Exit) Regulations 2020 do not introduce any new concept or policy. I therefore trust that the House will view them as uncontroversial. They are required in order to implement the protocol in the already highly regulated areas of explosives precursors and firearms. They are a technical consequence of EU exit and of the protocol, and their introduction will contribute to the UK’s readiness for the end of the transition period. I beg to move.

My Lords, I thank the noble Viscount for introducing this legislation. I was initially thrown by the language. I shudder to think how much time I spent trying to figure out exactly what an explosives precursor was. Basically, it is a chemical compound that can be used in explosives.

Given that, in the history of Northern Ireland, virtually all terrorists seem, at times, to have resorted to home-made explosives, these regulations seem extremely sensible and I can see no real objection to them. However, it would be good to know how the fertiliser bomb fits into the regulations. Are such chemicals trigger mechanisms or accelerants? A little more detail would be helpful, if the noble Viscount has it. If not, perhaps he would write to me.

The noble Viscount may already have answered my next question—what do you do about weapons such as target rifles, which can be carried around? These weapons are potentially lethal, even if they are not the most efficient way of hurting someone. They fire a projectile at great pace and with great accuracy over a long distance.

I am trying to extract a little more information, which, having listened to what the noble Viscount said, is not quite fair. Nevertheless, how can we make sure that it will be possible to travel with such a weapon between Great Britain and the continent or Ireland? Are there any legal barriers or other stages that have to be gone through if you are competing across the whole of Great Britain and in Europe, for instance, and not just in Ireland? It would be interesting to know that, because it will affect people, especially at the elite end of that sport. The same can be said of sporting guns—shotguns et cetera—that are used for shooting game. How do they fit in, and what hurdles does one have to jump through? I do not dispute the fact that there should be some but it would be nice to hear what they are.

Perhaps I might be allowed to put my toe into slightly more controversial water. Would these weapons be affected if, for instance, the amendments that we passed to the internal market Bill were kept, or would the situation change if we went back to the original Bill? It might be interesting to hear that when the noble Viscount sums up. With that caveat, I give moderate approval to the regulations.

My Lords, we now have a plethora of legislation on which the protocol on Ireland/Northern Ireland has an effect. Today’s regulations are some of the most important ones covered by the protocol, in that they govern the marketing and use of explosive precursors, and control the acquisition and possession of civil firearms.

Previously, when we were a member of the European Union, it was far more straightforward to gain a licence to circulate explosive precursors or firearms between the various European countries, as there was a need to apply in only one country. I understand that it is necessary for someone residing in Great Britain to obtain a separate licence for Northern Ireland, but now, as we take back control, it is becoming more complex for people to understand what is and is not permitted, and how to go about ensuring that they stay within the parameters of the law.

With these regulations, we find that the existing EU regulations regarding explosive precursors and firearms have been amended ahead of the end of the transition period, only for them to become outdated before they come into force due to the later protocol agreement between the UK and the EU. Thus, we have legislation before us today which needs amending once more to ensure that the correct laws apply to Northern Ireland and, crucially, to avoid a so-called hard border between Ireland and Northern Ireland.

It is possible that an individual or business will have a licence for the mainland but not realise that things have changed regarding the circulation of explosive precursors or civil firearms between Northern Ireland and the rest of the UK. Although in the past, one licence was sufficient for the movement of these firearms from one part of the UK to another, now it is not. So, not fully realising the extent of the change, a person might transport items unaware of the conditions that now prevail. In such an act of inadvertence, what would the outcome be and how would people be treated?

Also, it is not clear from the regulations how the governance and issuing of licences relating to either side will be covered so that there are no loopholes and no way in which individuals will be able to carry out nefarious acts due to one licensing authority issuing a licence while another does not. How will both authorities ensure consistency in the issuing of licences and maintain good communication to reassure the public and maintain public safety?

The amendments to the regulations serve only to make the law inaccessible and incomprehensible to ordinary people. It is undeniable that at some point in the future we will need to amend them once more as they become outdated due to some event or another, or due to a change in direction. Does the Minister agree that it would have been better to start afresh with new legislation on these vital rules governing explosive precursors and firearms, instead of having a mish-mash of regulations such as these, which omit provisions of the lens regulations in Northern Ireland but will be in force for the rest of the UK?

My Lords, I want to ask the Minister a few practical questions before dealing with some of the points that he made in his introduction.

Firearms are of course used for sport, which is quite a significant industry both in Great Britain and in Northern Ireland, and indeed in the Irish Republic. They are also used, for instance, in the Olympics and the Commonwealth Games. What impact would these measures have on the movement of weapons for sport and recreation, such as shooting parties? Would there be an implication for people in possession of personal protection weapons, given that the legal position vis-à-vis Great Britain changes under these regulations?

I want to draw attention to some of the remarks that the Minister made in his introduction. He referred to the requirement to ensure that there was no border on the island of Ireland and said that this was necessary to protect the Belfast/Good Friday agreement. Of course, nobody wants a trade border on the island of Ireland, but nor do we want a border in the Irish Sea. However, that is exactly what we have not only with these but with other regulations.

Earlier today, I drew the attention of the House to the common rules for exports regulations, which were considered in Grand Committee on 10 November. The noble Lord, Lord Grimstone, announced that that law would be implemented in Northern Ireland by the European Commission, thereby establishing that a foreign power would exercise Executive authority in Northern Ireland, despite the fact that we are supposed to have taken back control and are supposed to be maintaining the union. I remind the House that a border in the Irish Sea is anathema to the Belfast/Good Friday agreement just as much as a border on the island of Ireland. However, that seems to have been largely set aside and ignored, not only in this but in other legislation. In case noble Lords think that it is just me who sees that as the situation, perhaps I may refer the House to the Library note that accompanies these regulations. Under the heading “What would the 2020 regulations do?”, there is a section on firearms that says:

“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.”

That comes from our own Library.

The issue is twofold. There are the practical questions that I put to the Minister, but there is a wider issue of what these regulations and the protocol are doing. The protocol is a disaster for the union; it divides the union between Great Britain and Northern Ireland. Since 2 October last year, the Government have maintained complete denial of the implications of what they are proposing, and these are the downstream consequences of that. When our own Library is printing that in black and white, it gets the point across that what we are seeing here is not a mere technical point. Every one of these regulations—and this pattern is repeated in a number of them—illustrates a significant constitutional and economic change. The economic centre of gravity of Northern Ireland moves from the rest of the United Kingdom to the European Union.

This also means that the European Union can amend regulations and produce new ones. As citizens in Northern Ireland, we will have no say or influence over what those might be, because we have no representation. The Minister might address the question of what somebody is supposed to do. The principle being established in these regulations is that the European Union will make law for us and we have no alternative but to implement it. In pretending that they have not made changes to the constitution, the Government are therefore certainly doing grave damage to the Belfast agreement, which makes it clear that there can be no change in the status of Northern Ireland without the consent of its people. When a Minister of the Crown stands up and tells a Grand Committee on 10 November that the European Commission will exercise those powers in Northern Ireland, that can mean only one thing to any sensible person: that our status has changed. Will the Minister address those points, as well as the practical ones that I made at the beginning of my remarks?

My Lords, I agree with what has been said by my noble friend Lord Addington. I realise that there are all sorts of complications, to which the noble Lord, Lord Empey, has referred, which flow from the protocol and the decision to exit the European Union. Those problems are on the Government’s head; this Parliament decided to leave the European Union. In so doing, there will be all sorts of problems that they have to sort out. However, the specific matters under consideration today appear to be fairly peripheral and I do not need to detain the House any longer.

My Lords, this legislation is intended to reflect the different regulatory regimes for explosive precursors and acquiring firearms in Northern Ireland and Great Britain from 1 January. As the Minister said, it makes changes on the basis of the list of legislation in annexe 2 of the Northern Ireland protocol, which ties Northern Ireland to EU rules. It is another example of laws being applied to Northern Ireland after 1 January. Although these regulations are, as the Minister described, “niche” and “technical”, it is legislation and they are being applied to Northern Ireland without any of its elected representatives at Stormont or Westminster having any say or input. This is clearly contrary to the most basic concepts of democracy and undermines the political agreements reached over many years in Northern Ireland.

I have listened recently to many eloquent, sincere and passionate speeches about the need to protect the Belfast agreement and the peace process in Northern Ireland, but the agreement is three-stranded. It is about Northern Ireland’s internal arrangements, about north-south arrangements on the island of Ireland, and about the east-west arrangements between Northern Ireland, the Irish Republic and the rest of the United Kingdom. The emphasis is on north-south borders, but it seems that anything goes as far as the one between Northern Ireland and Great Britain is concerned. That is not acceptable; it is not the basis of the Belfast agreement. I urge noble Lords to read carefully that agreement, not a synopsis of it, and to not reinforce what they think is in it. There must be consent of both unionists and nationalists, which is very important. No matter how technical law may be, it is still legislation and it should be made in the democratically elected bodies—devolved matters at Stormont and reserved ones at Westminster—not in Brussels, to which no one in Northern Ireland sends any elected representatives.

The Government’s message on this specific statutory instrument is that these changes will simply reflect the legal position of the protocol, and there is no significant divergence between Great Britain, Northern Ireland and the EU on 1 January 2021. This may well be the case but there is, of course, as in all these situations, the prospect that this will not be a standstill position. The potential for differing standards risks adding complexity and cost for suppliers, gun holders and licensing bodies. In his response, will the Minister set out how these regulations will add to or change, for instance, the workload of the Police Service of Northern Ireland and businesses involved in firearms licensing, and set out clearly, in detail, what consultation there has been with the police and the Department of Justice in Northern Ireland and the Northern Ireland Office?

Has any assessment been made of how the loss of recognition for Great Britain tier 2 explosive precursor licences in Northern Ireland will affect trade with the rest of the United Kingdom? Has any work been done to assess whether the removal of this recognition will add cost and delay to supply chains operating on a UK-wide basis? Will the Home Office retain any authority for, or functional role in, approving some explosive licences for Northern Ireland? How will the changes be communicated to those affected? Finally, is there scope to pursue mutual recognition for Great Britain licences, as part of the joint committee negotiations, and indeed to agree overarching mutual recognition agreements between the UK and the European Union?

My Lords, these regulations have been prepared by the Northern Ireland Office and laid before Parliament. They will ensure that Northern Ireland will continue to implement EU law required by the protocol to the withdrawal agreement on Ireland/Northern Ireland relating to explosive precursors and firearms enforcement. These amendments are being made to address deficiencies resulting from EU exit. In relation to explosive precursors, the regulatory regime continues to operate in substantially the same manner as before exit day. The regulation ensures that the UK has a functioning statute book on exit day. This ends the supremacy of EU law in domestic law and preserves laws made in the UK to implement EU obligations.

The purpose of this instrument is to ensure that the UK has a proper law to control firearms and explosives, and I support it. We must never forget the deaths and harm caused in Northern Ireland many years ago. This SI will ensure that such attacks never take place again. Will it also deal with terrorists in the UK or those coming from abroad?

“Uncontroversial” and “niche”, the Minister said. I do not think so—more like unclear and opaque. Like my noble friend Lord Addington, I confess that having studied the Explanatory Memorandum for these regulations I am not very much the wiser. I thought the control of firearms and explosives was a devolved matter but since the European firearms directive and the precursors regulation are listed in annexe 2 of the protocol, they will continue to apply in Northern Ireland as at present.

Further, paragraph 7.1 of the Explanatory Memorandum says that the protocol requires continuing compliance with

“EU law in and in relation to Northern Ireland.”

The result is that licences issued in Great Britain will not be recognised in Northern Ireland, although presumably the European firearms pass will be recognised in Great Britain. This gives rise to a number of questions and I seek clarification.

First, from the end of the transition period, who will control the licensing and regulation of explosives and firearms in Northern Ireland? Is it the Northern Ireland Office or its officials? Who will issue the European firearms pass? Secondly, how is that control to be exercised? Will it be by the Northern Ireland Executive or by legislation in the Northern Ireland Assembly? The noble Lord, Lord Empey, referred to the European Commission having a role. Is that right? If so, how is its control to be exercised? Thirdly, if changes to the European firearms directive or the precursors regulation are made in Europe—where, as the noble Lord, Lord Dodds, pointed out, we do not have a presence or a role in legislating—would these amended or rewritten regulations apply under the protocol in Northern Ireland? If so, from what point? The noble Lord, Lord Empey, regards that possibility as a breach of the Belfast agreement and the noble Lord, Lord Dodds, agrees. Who am I to disagree? Fourthly, paragraph 7.2 of the Explanatory Memorandum refers to a licensing regime under the precursors regulations

“allowing for explosives precursors to be acquired, imported, possessed or used by the public”.

Does this licensing regime exist? Will it exist? If so, how will it operate after the end of the transition period? Fifthly, if licences are issued to manufacturers in Great Britain, under British legislation, to manufacture explosives in Great Britain, will Northern Ireland allow them to be imported? It is clear that these extremely abstruse regulations give rise to points of principle and I hope that the Minister can enlighten us on these issues.

My Lords, I rather agree with the noble Lord, Lord Thomas, that this is not an easy regulation to deal with but it is an important one because the order shows that EU law on firearms and explosive precursors will continue to apply in Northern Ireland after the transition period. The Opposition support this as it is required by the Northern Ireland protocol, but I have a question for the Minister: after transition, will there be any greater level of divergence between Great Britain and Northern Ireland once British law no longer reflects the EU directive? I would be grateful for a comment on that.

In more general terms, this debate has been interesting. By the way, it is good to see the noble Lord, Lord Dodds. I have not been in a debate with him since he has become a Member of the House. He and the noble Lord, Lord Empey, both made some interesting points, looking back on the rather unhappy history of firearms in Northern Ireland. We must bear in mind that there are and were personal protection weapons—something that never existed in Britain but did in Northern Ireland—and that the police force in Northern Ireland carry arms. Whatever the technicalities of this statutory instrument, it is important that post-transition discussions should continue with the European Union on firearms in particular, because of the possible supply of illegal firearms into Northern Ireland. The European Scrutiny Committee raised issues such as this, including on sharing information between the EU and Northern Ireland about organised crime across the Irish border. When we talk about discussions and consultations with the EU, we particularly mean discussions with the Irish Government too. After 1 January, there will be no European arrest warrant and no guarantee that we will have data sharing as we had previously. It is so important for there to be proper collaboration between the Governments in the north and south of the island of Ireland.

I take the point made by the noble Lords, Lord Dodds of Duncairn and Lord Empey, about strand three of the Good Friday agreement. I jointly chaired the talks with the Irish Government that led to the recognition of strand three and its inclusion in the Good Friday agreement document. It deals with east-west relations and is a matter of particular importance to the unionist community in Northern Ireland, in the way that the nationalist community regard strand two—relations between Northern and southern Ireland—as equally important. We must not forget that the protocol and everything surrounding it, including the detail in this statutory instrument, affect how people perceive what is technically called strand three but what we would refer to as east-west relations between Britain and Ireland.

While we must and do support this, there are issues that the Minster needs to address. The European firearms issue is a significant one to pass and we must see how that fits with the post-transition regime. This statutory instrument is complicated but it illustrates the complexity of what will happen in Northern Ireland after 1 January. I look forward to what the Minister has to say about the important issues raised by your Lordships.

My Lords, I was going to start by saying I was pleased that the order had been broadly welcomed by the House today. While I think it has, I recognise many of the comments that have been made. The noble Lord, Lord Murphy, pointed out, I think accurately, that while it is to be welcomed, there are complications. Perhaps I should not be too surprised, given all the issues that run alongside and are focused on Northern Ireland. Many questions were raised and I suspect I will be writing quite a detailed letter to all Peers who have taken part in this debate. I will do my best to have a stab at answering some of them at the Dispatch Box today.

This order is reasonably straightforward. I recognise the comments made but I would not go as far as agreeing with the noble Lord, Lord Bradshaw, who described them, I believe, as peripheral.

I say to the noble Lord, Lord Loomba, that the preceding regulations were laid by the Home Office in February 2019. They contain provisions on a wide range of security-related matters in preparation for the UK’s departure from the EU, which was then due to take place in March 2019. The protocol was agreed in October 2019 and contains detail in annexe 2 on areas where EU law would continue to apply in Northern Ireland. The regulations before us today are representative of the Government fulfilling their obligations under the protocol in these niche areas relating to explosive precursors. I hope that helps to answer the noble Lord’s question about whether the regulations might have been rethought or started from scratch.

Picking up on some points raised by the noble Lord, Lord Addington, on any changes to the UKIM Bill—on which I will touch later—I reassure him and other noble Lords that there are no changes I can mention today. But what I will do is take account of the issues that were raised; I will be sure to check Hansard and write a comprehensive letter answering the detailed questions.

The noble Lord, Lord Addington, asked some questions about shooting sports. The noble Lord, Lord Loomba, raised this regarding licences, and the noble Lord, Lord Empey, alluded to it as well. I shall add to what I said earlier. Residents of Great Britain wishing to travel to EU countries to participate in shooting sports with their legal firearm will need to comply with the licensing requirements of all countries they will be in. The Home Office has written to shooting associations to make them aware of this. The EFP will continue to be valid for travel between Northern Ireland and the Republic of Ireland. Those travelling from the Republic of Ireland through Northern Ireland to Great Britain with a legally-owned firearm will not be able to rely on the EFP in Great Britain and will have to comply with the guidance set out, as I mentioned in my opening speech, on GOV.UK. A question was raised earlier about the licence in the UK. To reiterate, it is recognised in Northern Ireland.

I listened carefully to the points raised about the protocol by the noble Lord, Lord Empey—I think a letter is in order for the noble Lord. For the moment, the protocol does not create, nor does it include any provision for creating, any kind of international border in the Irish Sea between Great Britain and Northern Ireland. That is the answer I give today, but I also pick up on the points raised by the noble Lord, Lord Murphy. Again, I owe it to him and the noble Lord, Lord Empey, to write in more detail about that.

To round up, I remind the House—as if the House needed reminding—that the threat from Northern Ireland-related terrorism remains severe. However, this SI makes no changes to the checks and balances already in place to regulate the possession of explosive precursors and firearms in both Great Britain and Northern Ireland. Perhaps this helps to answer a point raised by the noble Lord, Lord Addington.

I was particularly pleased to hear the remarks of the noble Lord, Lord Dodds, and I welcome him to the House—I have not had a chance to do that. I should set out in more detail answers to the points he has raised, but for the moment, I reassure the noble Lord that these regulations have very little impact on business. They relate to very few members of the public, as I said at the beginning. The implications for businesses, trade and the Police Service of Northern Ireland, in terms of resources and costs, are minimal. But let me put some meat on the bones of that answer in a letter to him.

The noble Lord, Lord Dodds, raised a question concerning the Home Office. The Home Office will continue to issue licences in Great Britain; the NIO will continue to issue licences in Northern Ireland. The NIO can expect to receive a small number of further applications.

I know there were some other questions, in particular from the noble Lord, Lord Thomas of Gresford, and I would wish to address these. They came fast and furious from him today. For the moment, though, I say that the changes in this SI will affect only the small number of Great Britain-based licence holders who wish to acquire, import, possess or use explosive precursors in Northern Ireland. The SI has no impact on current Northern Ireland-based licence holders. I know that the noble Lord’s questions went wider than this, and that is why I need to add to the letter that I have pledged to write.

Motion agreed.

Sitting suspended.