Active counter-drone measures need a broader legal basis

Review bodies have until 18 August 2026 to submit their comments on the proposal.

The bill seeks to establish a legal framework which will allow critical infrastructure entities themselves to take action against unauthorised flights of unmanned aircraft within a designated area above premises which are subject to physical security measures.

The bill proposes that employees of critical infrastructure entities who hold a firearms licence and lawfully possess a firearm should, subject to the statutory conditions, be permitted to use the firearm as a last resort to stop such unauthorised flights.

With the exception of its title, the bill deliberately uses the narrower term “unmanned aircraft” rather than “unmanned aircraft systems”. The explanatory memorandum uses the abbreviation UAS (Unmanned Aircraft System).

In this case, the explanatory memorandum genuinely fulfils its purpose: it sets out the relevant facts and provides a detailed explanation of the reasons behind the proposed approach. For example, it explains why the bill does not provide for the use of communication and navigation jamming to stop an unmanned aircraft, but instead prefers—ultimately and as a last resort—the seemingly more dangerous option of shooting it down. The bill therefore does not create an exception to the general prohibition on interfering with the operation of electronic communications equipment and networks.

Liability for any damage caused as a result of a lawful intervention against an unmanned aircraft would rest with the aircraft’s operator. The person carrying out the intervention would be liable, however, if the action were performed in breach of the law. The principal conditions for lawful active intervention against an unmanned aircraft are the existence of an imminent threat to critical infrastructure and the requirement that the intervention must not be manifestly disproportionate. The threat need not involve a physical attack; it may also consist of interference with communications essential to the critical infrastructure entity or, apparently, the risk of sensitive data being collected.

The statutory provisions alone will not provide a sufficient legal basis. The bill anticipates that critical infrastructure entities will also have to adopt corresponding internal regulations, particularly governing the handling of firearms,  and incorporate into these internal regulations the documentation required in connection with their new powers.

It will also be necessary to amend the employment contracts of the employees concerned where the mandatory description of the type of work performed is currently stated as guarding, security or similar duties.

This is, however, subject to the bill remaining unchanged in these respects during the subsequent legislative process.

In any event, the bill responds to pressing contemporary needs and offers sound arguments in support of the proposed solutions. At the same time, it leaves a degree of uncertainty regarding their interpretation by allowing several key indeterminate legal concepts—such as manifest disproportionality and the public interest—to be given substance through subsequent interpretation.

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