Fundamental rights to air weapon owners: FOI release

Information requested

A copy of the evaluation of interaction between the Air Weapons and Licensing (Scotland) Act 2015 and article 17 of the EU Charter of Fundamental Rights, prior to the 2015 legislation's implementation.

Response

I attach a copy of most of the information you requested. The specific information being released is as follows:

• Document 001: Extract from submission sent by Scottish Government Firearms Team to Cabinet Secretary for Justice, dated 14 September 2012.
• Document 002: Extract from consultation analysis report considering responses to air weapon licensing consultation, dated 26 June 2013.
• Document 003: Extract from air weapons policy discussion document prepared by Scottish Government Firearms Team, dated 02 July 2013.

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege. This exemption is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is some public interest in release as part of open and transparent government, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the general right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

Additionally, an exemption under section 38(1)(b) of FOISA (personal data of third parties) applies to some of the information you have requested. The names and contact details of individuals involved have been redacted from the attached information - although they were acting in official capacity at the time, given the length of time since the information was created many of the individuals involved have moved on from their roles and it would not be appropriate to disclose their personal data now. FOISA specifies that this exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

Air weapon licensing and EU Fundamental Rights

In relation to the other points in your letter, and which you raised in previous correspondence to the Scottish Government EU Secretariat team last year, I would also like to refer you to paragraph 114 of the Policy Memorandum attached to the Air Weapons and Licensing (Scotland) Act 2015, which is publicly available via the Scottish Parliament website:

https://archive2021.parliament.scot/parliamentarybusiness/Bills/76383.aspx.

This paragraph, which I have also copied below, sets out the Scottish Government's position with regards to the impact of air weapon licensing on the rights of air weapon owners:

"The Scottish Government considers that the Bill has limited impact on the human rights of individuals. Although current gun users may believe that their human rights are infringed by the introduction of a licensing system, the ownership and use of air weapons will still be permitted if the conditions set out in the legislation are met. There is no ban so no deprivation of property and the weapons retain market value by virtue of still being capable of being lawfully held and sold and the presence of an open market in England and Wales as well as the rest of the world. While the Chief Constable has considerable discretion in the performance of functions in relation to air weapons, that discretion is subject to a fully Article 6 compliant appeal mechanism. Any deprivation of property occurring in relation to cancellation of certificates and forfeiture occurs only temporarily in those narrow situations where it is necessary to do so to protect public safety and affected individuals can appeal to the court about the deprivation. The Bill does not discriminate against individuals and the policy has been carefully formulated to balance the rights of the individual with the safety of the wider populace."

Licensing air weapons is not the same as banning them, and prior to the introduction of licensing air weapon owners had a lengthy lead-in period to either obtain a licence or dispose of their weapons however they wished. You have also mentioned a letter dated 21 April 2016 from Michael Matheson MSP, who was at that time Cabinet Secretary for Justice. In that letter Mr Matheson stated that the 2015 Act did not implement or come under the scope of EU law. This is because EU firearm regulations do not control air weapons that do not use combustible propellant. It was not a comment on EU Fundamental Rights which - as set out in the Policy Memorandum to the Bill - we do not consider were negatively impacted by our legislation.

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FOI 202300337177 - Information released

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4 page PDF

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