Consultation paper: amendments to the Poisons Act 1972
Updated 4 February 2022
Applies to England, Scotland and Wales
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Introduction
This consultation seeks views on proposed amendments of control measures for sales of explosives precursors and poisons under the Poisons Act 1972. The consultation is aimed at businesses who supply chemicals and chemical products, online marketplaces who facilitate the supply of chemicals and chemical products through their marketplaces and members of the public who use certain chemicals and chemical products in their hobbies in England, Scotland and Wales.
The CONTEST Strategy published in 2018 was clear that although terrorists still had the ambition to mount complex attacks, ‘most future terrorist plots in the UK will employ simple methods that can be developed with ease and at speed’. This includes the use of poisons and particularly explosive precursors, following the devastating terrorist attack in Manchester in 2017. For that reason, the strategy committed to ‘Enhance capabilities to detect terrorist activity involving Chemical, Biological, Radiological, Nuclear and Explosives (CBRNE) material and their precursors and to control and safeguard these materials’.
The proposals in this consultation are aimed at delivering that commitment whilst maintaining a balance for legitimate users.
Background
The Poisons Act 1972 controls the sale of certain explosives precursors and poisons. The aim of the legislation is to control chemicals and poisons that can be used to cause harm while still allowing members of the general public and businesses with a legitimate need to access these substances to continue their activities. It includes measures such as:
Licensing of Regulated Explosives Precursors and Poisons:
A member of the public can only purchase regulated explosives precursors and poisons with a valid licence. Business to Business sales and substances restricted to professional users are exempt from licensing requirements.
Suspicious Transaction Reporting:
Suppliers of regulated and reportable explosives precursors and poisons are required to report suspicious transactions and significant losses and thefts. This requirement covers business to business sales, wholesale transactions and the sale of products for home use.
Enforcement:
The Police are responsible for enforcing the legislation. The General Pharmaceutical Council also play a part in their role as the pharmacy regulator and inspectorate body.
The proposed new measures address key legislative priorities for controlling explosives precursors identified following the Manchester Arena and Parsons Green explosive attacks. There is an ongoing police investigation in relation to the Liverpool terror attack, and any subsequent findings will be taken into account where appropriate following this consultation. The proposals would continue to apply a cohesive approach to poisons and explosives precursors and include stronger controls on verifying professional users which is particularly relevant to chemicals that are not routinely sold to the public.
The objective for implementing the new measures is to reduce the threat posed by the illicit use of explosives precursors and poisons in a way that is proportionate for the general public and affected businesses.
The objectives for implementation focus on:
- minimising burdens on business and regulators whilst ensuring security and public confidence in the UK’s counter-terrorism regime;
- establishing a legislative package which minimises unintended consequences and safeguards against discrimination of members of the public with a legitimate use for some of the chemicals; and
- ensuring clear guidance for suppliers of explosives precursors and poisons so they can easily comply with their obligations.
An Impact Assessment is attached, but we hope that this consultation will provide us with the evidence we need to fully assess the potential impact of the measures described including on the operation of the UK internal market. Using this data, and taking into consideration any interaction with the Northern Ireland Protocol, we will complete a further Impact Assessment before any legislation relating to this consultation is introduced.
Comments on the Impact Assessment are very welcome.
Copies of the consultation paper are being sent to:
British Retail Consortium
British Independent Retailers Association
Agricultural Industry Confederation
Horticultural Trade Association
Association of Convenience Stores
Chemical Business Association
Chemical Industry Association
Royal Pharmaceutical Society
General Pharmaceutical Council
National Pharmacy Association
National Farmers Union
Cosmetics, Toiletry, Perfumery Association
UK Cleaning Product Industry Association
UK Pyrotechnics Society
UK Radio Car Association
British Power Boat Racing Society
UK Rocketry Association
However, this list is not meant to be exhaustive or exclusive and responses are welcomed from anyone with an interest in or views on the subject covered by this paper. We are seeking to engage as wide an audience as possible.
The proposals
Option 1 is to make no changes at all.
Option 2 is to strengthen and clarify measures within the legislation, but not change the substances and concentrations that members of the public can acquire, import, possess and use provided they have a valid licence.
Members of the public would not notice much change. They would still be able to apply for a licence in order to acquire, import, possess or use the following explosives precursors and poisons which are covered in the Poisons Act 1972.
| Current regulated explosives precursor | Concentration above which a licence is required (w/w) |
|---|---|
| Hydrogen peroxide | 12% |
| Nitric acid | 3% |
| Sulfuric acid | 15% |
| Nitromethane | 30% |
| Potassium chlorate | 40% |
| Potassium perchlorate | 40% |
| Sodium chlorate | 40% |
| Sodium perchlorate | 40% |
| Regulated Poisons |
|---|
| Aluminium phosphide |
| Arsenic; its compounds |
| Barium, salts of, |
| Bromomethane |
| Chloropicrin |
| Fluoroacetic acid; its salts; fluoracetamide |
| Hydrogen cyanide; metal cyanides, other than ferrocyanides and ferricyanides |
| Lead acetates; compound of lead with acids from fixed oils |
| Magnesium phosphide |
| Mercury, compounds of, the following: - Nitrates of mercury ; mercuric cyanide oxides; mercuric thiocyanate; ammonium mercuric chlorides; potassium mercuric iodides; organic compounds of mercury which contain a methyl group directly linked to the mercury atom |
| Oxalic acid (10% w/w) |
| Phenols (phenol; phenolic isomers of the following cresols, xylenols, monoethylphenols) except in substances containing less than 60% weight in weight of phenols; compounds of phenols with metal, except in substances containing less than the equivalent of 60% weight in weight, of phenols |
| Phosphorus yellow |
| Strychnine; its salts in quaternary compounds |
| Thallium, salts of |
Professional users are those with a demonstrable need for a regulated substance connected with their trade, business or profession. This may be a part time or full-time profession. They do not supply the substance to others. They would still be able to acquire, import, possess and use regulated explosives precursors and poisons without requiring a licence. They would be required to provide proof of their business and details of their intended use to their supplier at regular intervals or in case of a significant change in transaction. This is so the supplier can verify their status, record the details and assess suspicion.
Suppliers would need to continue to verify licences and proofs of identity when selling regulated explosives precursors and poisons to members of the public. They would need to verify the status and intended use and register the details of the transaction when selling to a professional user or other supplier. Such details would include: proof of identity of an individual entitled to represent the business; their trade, business or profession; company name, address; VAT number; and the intended use.
The supplier would need to assess whether the intended use is consistent with the trade, business or profession. Where there is doubt or uncertainty, the sale could be refused and reported as a suspicious transaction. Records would be retained for 18 months and would be available for inspection.
Suppliers would continue to need to report suspicious transactions having regard to all circumstances. Reports would need to be made within 24 hours of considering that a transaction or attempted transaction is suspicious.
Suppliers would also need to train their staff on restrictions and reporting obligations. And if supplying a regulated or a reportable explosives precursor or poison to another supplier, they would need to inform their customer of the related restrictions or reporting obligations.
Online marketplaces act as an intermediary that allows suppliers to conclude transactions with members of the public, other suppliers and professional users.
Online marketplaces would need to report suspicious transactions having regard to all circumstances and have in place appropriate, proportionate procedures to detect suspicious transactions, adapted to their specific environment. Reports would need to be made within 24 hours of considering that a transaction or attempted transaction is suspicious.
Online marketplaces would also be expected to help the users of their services to understand and comply with obligations relating to verification of customers and reporting of suspicious transactions.
Option 3 introduces several new measures to increase security protections. These proposals aim to increase our ability to safeguard against terrorism and malicious activity by restricting access to chemicals of particular concern and increasing our ability to identify and act on suspicious transactions. We are seeking to understand the impact that these measures may have to ensure that any action taken is proportionate and does not place undue restrictions on those seeking to access explosives precursors and poisons for legitimate purposes.
Under this option the same amendments to clarify and strengthen the legislation listed under Option 2 apply, as well as introducing an upper concentration threshold to be applied to Explosives Precursors and Poisons Licences that are issued to members of the public.
Table: Proposed upper concentration limits to be added under Option 3:
| Regulated explosives precursor | Concentration above which a licence is required (w/w) | Concentration above which a licence would not be allowed (w/w) |
|---|---|---|
| Hydrogen peroxide | 12% | 35% |
| Nitric acid | 3% | 10% |
| Sulfuric acid | 15% | 40% |
| Nitromethane | 16% | 100% |
| Potassium chlorate | 40% | 40% |
| Potassium perchlorate | 40% | 40% |
| Sodium chlorate | 40% | 40% |
| Sodium perchlorate | 40% | 40% |
| Ammonium nitrate | 16%N | 16%N |
Under option 3, we will consider adding further substances to the lists of reportable and regulated precursors and poisons. The below tables demonstrate proposed additions to the existing explosives precursors and poisons lists. Upper concentration limits for the proposed regulated explosives precursors would be considered post-consultation.
| Proposed additions to regulated explosives precursors | Concentration above which a licence would be required (w/w) |
|---|---|
| Hydrochloric Acid | 10% |
| Phosphoric Acid | 30% |
| Hexamine | TBC |
| Ammonium Nitrate | 16% N |
| Proposed additions to reportable explosives precursors |
|---|
| Sulphur |
| Proposed additions to regulated Poisons |
|---|
| Aluminium Sulphide |
| Sodium Sulphide |
| Calcium Sulphide |
| Magnesium Sulphide |
| Zinc Phosphide |
| Calcium Phosphide |
| Arsenic and mercury compounds |
| 2,4 – Dinitrophenol and derivatives including sodium dinitrophenolate |
| Proposed additions to reportable Poisons |
|---|
| Metal sulphide |
| Metal phosphides |
| Sodium hypochlorite solutions above 6% available chlorine |
This option would also include measures to strengthen the Suspicious Activity Reporting regime by introducing a requirement to report suspicious activity reports through an online portal hosted through gov.uk (or phone number where this is not possible). There would also be a requirement for retailers to provide currently held, relevant identifiable information (for example, name, email address, home address) involved in a suspicious transaction when making the suspicious activity report. This will not create an obligation to collect identifiable information where this is not held, only a requirement to report information relating to a suspicious transaction which is held as routine.
These measures would be intended to improve the quality of information received in suspicious activity reports, and subsequently increase the ability for us to take appropriate action following a suspicious activity report where this is necessary by standardising the way in which we receive the reports. We will be consulting with the Information Commissioner’s Office on this requirement and welcome any views on this proposal further to the questions set out in the consultation document below.
Responses can be submitted online
Enquiries (including requests for the paper in an alternative format) to:
precursorsandpoisons@homeoffice.gov.uk
Or by post to:
Poisons Act Consultation
CBRNE S&T Unit
2 Marsham Street
London
SW1P 4DF
Additional ways to respond:
A series of stakeholder meetings are also taking place. For further information please use the ‘Enquiries’ contact details above.
Complaints or comments
If you have any complaints or comments about the consultation process you should contact the Home Office at the above address.
Representative groups
Representative groups are asked to give a summary of the people and organisations they represent when they respond.
Confidentiality
Information provided in response to this consultation, including personal information, may be published or disclosed in accordance with the access to information regimes (these are primarily the Freedom of Information Act 2000 (FOIA), the Data Protection Act 2018 (DPA) and the Environmental Information Regulations 2004). If you want the information that you provide to be treated as confidential, please be aware that, under the FOIA, there is a statutory Code of Practice with which public authorities must comply and which deals, amongst other things, with obligations of confidence. In view of this it would be helpful if you could explain to us why you regard the information you have provided as confidential. If we receive a request for disclosure of the information we will take full account of your explanation, but we cannot give an assurance that confidentiality can be maintained in all circumstances. An automatic confidentiality disclaimer generated by your IT system will not, of itself, be regarded as binding on the Home Office.
The Home Office will process your personal data in accordance with the DPA and in the majority of circumstances, this will mean that your personal data will not be disclosed to third parties.
Annex A – Table of proposed measures in options 2 and 3.
Table 1a: Option 2, proposed measures under the Poisons Act amendment, UK, 2021
| No. | Measure | Description of Measure |
|---|---|---|
| 1 | Supply chain notification | Economic Actors (Producers, wholesalers, distributors and retailers) supplying a restricted substance to another economic operator must inform them of the restrictions and reporting obligations. Economic operators supplying any substances to professional users or members of the public must ensure and be able to demonstrate that its personnel are aware which of its products contain listed substances and are instructed on obligations. |
| 2 | Verification of professional user status | Economic operators supplying regulated substances to professional users and other economic operators shall request: proof of ID of individual entitled to represent; their trade, business or profession; company name, address; VAT number; and intended use. The supplier should assess whether the intended use is consistent with the trade, business or profession. If in doubt, the sale can be refused but must be reported as a suspicious transaction. All transaction of regulated substances must be recorded and retained for 18 months and available for inspection. |
| 3 | 24-hour reporting obligations | Economic operators should already report suspicious transactions regarding all circumstances and have in place appropriate, proportionate procedures to detect suspicious transactions. This measure shall require all reports be made within 24 hours of considering that a transaction or attempted transaction is suspicious. Economic operators, professional users and members of the pubic shall report significant disappearances and thefts within 24 hours of detection. |
| 4 | Online market place obligations | Online market places shall have in place appropriate, proportionate procedures to comply with measures 1 – 4, adapted to their specific environment. |
| 5 | Application and transition | Licences issued under Regulation 28/2013 will remain valid until their expiry date or one year after these amendments take effect, whichever is sooner. Renewal application made on or after the date the amendments take effect will be made under the new legislation. Regulated substances legally acquired by members of the public before the amendments take effect can be legally possessed, introduced and used until one year later. |
Source: Home Office, 2021.
Table 1b: Option 3, proposed measures under the Poisons Act amendment, UK, 2021.
| No. | Measure | Description of Measure |
|---|---|---|
| 1-5 | Option 3 includes: All measures listed in Table 1a. | |
| 6 | Changes to licensable substance and concentrations | Changes shall be made to the concentration thresholds of substances made available to, introduced to, possessed or used by members of the public without licence. Upper concentration thresholds for licensing of Part 1 substances shall be amended. Changes will also be made to the status of some chemicals under the Act – for example, moving some substances from reportable to regulated. These changes are outlined in Annex A. |
| 7 | Transfer of Ammonium Nitrate controls | Controls of ammonium nitrate supply move from REACH Annex XVII and Part 3 of schedule 1A to Part 1. As a result, both supply of ammonium nitrate to members of the public and acquisition, possession and use by members of the public are prohibited. There will be an option to allow supply to, or acquisition, possession and use by members of the public through licence. |
| 8 | Requirement for retailers and marketplaces to report SARs using a gov.uk online portal | Retailers and marketplaces will now be required to report Suspicious Activity Reports (SARs) using a gov.uk online portal. This will include a requirement to include all relevant and currently held biographical data when inputting SARs. |
Source: Home Office, 2021.
Consultation principles
The principles that government departments and other public bodies should adopt for engaging stakeholders when developing policy and legislation are set out in the consultation principles.