Commentary on Sections Part 8: Firearms Section 109: Functions of Scottish Ministers under Firearms Acts
256.Section 5 of the 1968 Act deals with the prohibition of certain weapons and, on devolution, the Secretary of State’s functions under section 5 were transferred to the Scottish Ministers by the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (SI 1999/1750 - made under section 63 of the Scotland Act 1998). The new firearms offence of possession for sale or transfer of any prohibited weapon is to be inserted as section 5(2A) of the 1968 Act by virtue of section 108. The offence is committed where the conduct is undertaken without authority, which is defined as “an authority given in writing by the Secretary of State (in or as regards England and Wales), or the Scottish Ministers (in or as regards Scotland)”. This is similar to the formula used for the existing firearms offences in section 5 but the functions which were transferred to the Scottish Ministers under section 5 upon devolution only catch those that could be exercised in relation to the offences that existed at that time. Additional functions under section 5 need to be transferred to Scottish Ministers in relation to the new offences and the effect of subsections (1) and (4) is to revoke the entry in the 1999 Order in respect of section 5 of the 1968 Act and transfer afresh all the Secretary of State’s functions under this section, as amended, to the Scottish Ministers in or as regards Scotland. The amendments in subsection (2) to section 5A of the 1968 Act (exemptions from requirement of authority under section 5) and the amendments in subsection (3) to the Firearms (Amendment) Act 1997 (in relation to those sections which provide special exemptions from prohibition of small firearms) are consequential upon the amendments to section 5 of the 1968 Act as, in each case, they refer back to the functions of Ministers under that section.