Chamber and committees

Although the group includes a substantial number of amendments, they seek to achieve one significant effect: to remove the licensing system from the bill. Ms Clark lodged an amendment at stage 2 to start a debate on whether the licensing system should be removed, and I understand that the amendments in this group have been lodged to seek to progress that point.

As I stated during stage 2 proceedings, I consider amendments to remove the licensing system to be a wholly disproportionate step to take. The licensing system is based on extensive consultation and engagement, which Mr MacGregor has just pointed out. That includes the 2021 public consultation, which demonstrated significant support among respondents for a firework licensing system, with 84 per cent agreeing that it should be introduced.

During stage 1, the committee heard from a range of stakeholders who were supportive of the range of measures in the bill, including the Scottish Fire and Rescue Service, which stated that

“The licensing element encourages people to engage in some training in how to use fireworks, as well as making it slightly more challenging to buy fireworks and putting some control around that process.”—[Official Report, Criminal Justice Committee, 16 March 2022; c 6.]

I understand that members have expressed concerns about the level of detail that is in the bill and what will be set out in future regulations. Following stage 1, I shared a licence user journey with the committee, which set out the practical steps that a person must follow in order to apply for a licence. All that detail is already included in the bill, and I hope that that provided members with the reassurance that the fundamental principles and the core functions of the system are included in the bill. The licence user journey also pointed to the four areas in which regulations are required for implementation of the system.

Therefore, as I have previously stated, I believe that the most appropriate approach to take to operational details is to set them out in regulations. Those regulations will be subject to a consultation requirement, and the public and stakeholders will have the opportunity to share their views on proposals.

I lodged amendments at stage 2 to accept the Delegated Powers and Law Reform Committee recommendations and require certain regulations to be subject to the affirmative procedure, which would give the Parliament the opportunity to scrutinise those regulations further. That relates to the broad regulation-making power at section 18, which means that, where regulations might go beyond any type of administrative detail, they will be subject to the affirmative procedure.

I consider that this group of amendments and the attempt to remove the licensing system are excessive. That approach actively works against the results of the consultation and the engagement that has contributed towards the development of the system. I therefore ask Ms Clark not to press the amendments, and if she is minded to do so, I ask members not to support them.

There was, understandably, much debate about the licence fee during stages 1 and 2. I turn first to Pauline McNeill’s amendment 70. It seeks to amend the bill to remove the requirement that

“the Scottish Ministers ... must have regard to the reasonable”

running costs of the licensing system. When “setting the fees”; only a “nominal fee” could be charged or the fee would be remitted entirely.

I know that Pauline McNeill raised concerns at stage 2 about system running costs and how they could impact on the licence fee that is set. Although cost recovery will be a key determinant of the fee level—that is in line with the standard approach for all such fees—a proportionate fee should generally be chargeable in order to ensure that applications are made with due consideration of the responsibilities that are involved in holding a fireworks licence.

I will address the question that Pauline McNeill asked me during her speech. She asked me about legal enforcement or legal administration—I think that that was the term that she used. I confirm that it is not the intention that the fees will cover elements of enforcement, but are for costs of administration only.

Amendment 68 seeks to require a fireworks licence to be presented specifically

“at the point of purchase”

either online or in person. That is unworkable, as the bill does not and cannot regulate behaviour outside of Scotland.

Section 5 of the bill ensures that suppliers will take “reasonable steps” to establish that they are not supplying fireworks to an unlicensed person. That is not confined just to the point of sale, but applies to every part of the process of supply. Therefore, for transactions with retailers outwith Scotland—which was the example that the member gave—it is the delivery company that will be subject to the requirements of section 5.

For example, if fireworks are purchased online from a European website and the delivery address is in Scotland, the physical handing over or delivery of the goods is part of the supply of fireworks. It is that part of the process where enforcement action in Scotland for online sales can be focused. It is anticipated that that will work in a similar way to the delivery of age-restricted products, where the person who is delivering the products must satisfy themselves that the recipient is of a permitted age to receive the delivery.

I believe that amendment 68 is not feasible and I will not support it.

Amendment 69 seeks to provide examples of what constitute “reasonable steps” to determine whether a person has a firework licence by setting out that that

“includes viewing and retaining a copy of the person’s firework licence.”

Although I sympathise with the intention behind the amendments, I do not think that it is right to provide such examples. We do not want to cause unintended consequences or narrowing of the scope of the defence. I believe that we had a detailed exchange on that at stage 2. We should leave it to the police, the prosecutors and the courts to determine, in each individual case, whether the evidence supports that defence applying to a particular supplier.

For that reason, I ask Mr Greene not to press his amendment.

Will the member take an intervention?

I understand that the amendments in this group seek to enhance scrutiny and consultation around the licensing system, but I believe that my openness to increased scrutiny has already been demonstrated by my accepting the Delegated Powers and Law Reform Committee’s recommendations on the use of affirmative regulations and by including from the outset—in section 19—a consultation requirement. That requirement ensures that there will be an opportunity to gather views on proposals for what may be included in regulations—for example, in relation to the licence fee, which we discussed earlier.

Amendments 5, 7, 11, 18 and 20 seek to make the regulation-making powers in part 2, which are currently subject to negative procedure, subject to affirmative procedure. I do not consider that the use of affirmative procedure is suitable or proportionate for the type of regulations in question, which will be used to set out operational and administrative details of the licensing system.

It is not intended that those powers will be used frequently, but it is necessary that, when they are used, they can be used in a timely manner, so that the licensing system can continue to operate efficiently and at an optimum level. In my view, it would not be appropriate to require the use of affirmative procedure for regulations that made operational and administrative changes.

Amendment 32 seeks to extend the consultation requirement to regulations that are made under section 3 of the bill, which sets out the categories of fireworks that are covered by part 2 of the bill, which relates to the licensing system. The regulation-making power in section 3(2) has been included to future proof the licensing system, and it will enable any changes that are made to the categorisation of fireworks, or the addition of new classifications of fireworks in the future, to be taken into account.

It is important that that power can be used in a timely manner so that the licensing system can continue to operate effectively. It is a technical regulation-making power, which it is intended will be used only if that is required in order for account to be taken of legislative change elsewhere or industry developments. If it is used, relevant stakeholders, such as firework industry experts or trading standards, will be consulted, in line with good practice for all regulations, and it is not considered necessary to include it under the duty to consult in section 19.

We have to make sure that the measures are proportionate, because we do not want to put people off from applying for a licence. If applicants have committed an offence that involves fireworks under the six terrorism acts that we are talking about, they will be required to disclose that. That strikes the appropriate balance.

I will start by addressing Mr Greene’s amendments 13, 16, 22 and 25. I thank him for his engagement on those amendments in advance of today’s proceedings and I believe that those discussions have led to revised amendments that capture the intent of his original amendments at stage 2, so I am pleased to support his amendments today.

As I have previously outlined, it had always been intended that, as part of implementation, processes would be put in place to ensure that people have access to information regarding appeals when they need it. However, as I set out at stage 2, I see merit in placing a duty on the Scottish ministers to share that information with licence applicants and holders at key points when a decision is made. I am happy to support amendments 13, 16, 22 and 25 and I encourage other members to do so as well.

I turn to Mr MacGregor’s amendments regarding the difference between additional mandatory conditions that must apply to all licences and optional conditions that the Scottish ministers will have the discretion to attach to individual licences. I believe that those amendments provide clarity and put beyond doubt what has always been intended to be in the bill. As Mr MacGregor outlined, the amendments change neither the powers of the Scottish ministers to prescribe and apply licence conditions nor the appeal rights of individuals from the position that has always been intended in the bill. I thank Mr MacGregor for his engagement on those amendments before lodging them. I am pleased to support amendments 15, 17 and 26.

Lastly, I turn to Mr Findlay’s amendment 77, which seeks to require a review of the licence term one year after the regulations that set out the term are made and each year thereafter. I consider that requirement to be excessive. In particular, if a licence term longer than one year is set following consultation, I am not clear that such a review would provide meaningful results, as the licence term will be consulted on and set out in regulations. As I have outlined before, our working assumption is currently that the licence term will be five years.

Ms Stevenson’s stage 2 amendment 56, which Mr Findlay will remember, requires a report on the effectiveness of the act within five years of royal assent. When the package of measures in the bill has had the opportunity to bed in following implementation, I consider that a constructive review of the licensing system as a whole can take place at that point. However, should any issues or concerns about the licence term arise before that, the Scottish ministers will be able to progress a change through consultation and further regulations, if that is necessary. Therefore, I cannot support amendment 77 and I ask other members not to support it.

To summarise, I support all the amendments in the group, with the exception of amendment 77.

Jamie Greene has made a legitimate point. We will keep the fee under review. The modelling that we have done, which he will no doubt have seen, shows a likely reduction in fireworks sales. We will keep that under review; if there is evidence to suggest that the situation is as he suggests, we will reconsider the level at which the fee has been set.

I reiterate the point that I made earlier: I remain committed to ensuring that the licence fee is proportionate and fair. It will be set, following a wide-ranging consultation, at a rate that will ensure that, although robust checks and balances are in place, it is not a restrictive barrier to safe and lawful use of fireworks.

I will move on to Russell Findlay’s amendment. I do not consider amendment 71 to be necessary. The bill already requires the fee to be set with regard to the “reasonable costs” of the licensing system, so any impact of inflation on those costs will, of course, form part of the fee level that is determined. Consultation on the fee, which will be required before any regulations are made, will ensure that the fee amount is reasonable, and will allow other cost pressures on individuals to be reflected.

I understand that the requirement to obtain a licence and pay a fee will mean that people who wish to buy and use fireworks will incur additional costs. Again, I reiterate that I remain committed to ensuring that the licence fee is proportionate and fair.

Ensuring safe and responsible use of fireworks is imperative in terms of achieving the policy aims of the licensing system. I believe that, through the illustrative modelling in the financial memorandum, a balance has been struck between, on one hand, introducing a licence fee and, on the other, avoiding overly restrictive barriers to lawful purchase and use of fireworks.

Will the member take an intervention?

As I have set out, I have moved on a number areas in which I thought that it was proportionate for regulations to be subject to affirmative rather than negative procedure, where those regulations involve substantive details. As I have said, the regulations that we are discussing here would be technical and administrative. Therefore, I think that, in this case, the use of negative procedure—which has been specified in many different types of legislation that the Parliament has considered while I have been here—is appropriate.

The member is correct in saying that the committee has the power to knock back those regulations if it wishes to do so. Although they are not subject to the consultation requirements, the regulations are subject to affirmative procedure, which means that there will be enhanced parliamentary scrutiny of regulations that are laid using that power.

Amendment 33 seeks to completely remove section 19 from the bill and is related to the group of amendments, which have already been debated, that aim to remove the licensing system from the bill. The licensing scheme is a core policy of the bill, and the provision for consultation on regulations is, in my view, essential to ensuring that the licensing system will operate well in practice. Members will understand why I therefore cannot support amendment 33.

Amendment 34 seeks to include a new section setting out a requirement on Scottish ministers before they lay regulations relating to part 2 of the bill and to the licensing system. The matters that are covered in the regulations that are provided for in that part of the bill are not of the type to require the superaffirmative procedure that amendment 34 would apply. The regulations would, for the most part, set out matters of operational detail or administrative procedure. Although it is always possible for Parliament to seek additional scrutiny in that manner, I believe that the superaffirmative procedure is best suited to matters of significant importance, complexity or difficulty.

I hope that members will understand why, for the reasons that I have outlined, I cannot accept the amendments in this group.

They will not be criminalised if they employ a private company to do such a display for them.

Ms McNeill’s amendment 79 seeks to shorten the permitted number of days on which fireworks can be supplied over the bonfire period from 15 days, which the bill currently provides for, to nine days. For the first time, the bill sets out periods in which it is permitted that people in Scotland can be supplied with fireworks. We think that the period that we have set out, which is based on consultation, creates a fair balance between the desire to celebrate special days in our communities and curtailing of general supply and use of fireworks.

I believe that limiting the supply period further could risk a situation in which people would have a very limited number of days on which to purchase fireworks, and would inadvertently be encouraged to store them in domestic settings. It also risks squeezing the supply chain over the busiest period for firework purchases, which could cause retailers to overstock and thereby lead to safety issues around storage.

If there is evidence that the permitted periods of supply should be reduced further in the future, the bill provides for that being done via secondary legislation. Therefore, I do not support amendment 79, and I encourage Ms McNeill not to press it.

I turn to amendments 80 and 81. Our intention in introducing restricted days of use is that we address the negative impacts of unpredictable fireworks use, while retaining periods during which fireworks may be used appropriately by the general public. It was recognised that setting permitted periods for use provides flexibility to allow displays to go ahead on or around the dates of celebrations, and allows for postponement or delays that are due to inclement weather, which Mr Greene mentioned earlier, or any type of unsafe conditions.

Ms McNeill’s amendments 80 and 81 seek to reduce the number of permitted days of use over the bonfire period and the new year period to eight days and three days, respectively. The amendments would reduce the number of days on which it is permitted to use fireworks by almost a quarter.

There is a fine line between introducing permitted periods in order to reduce the negative effects on our vulnerable populations and allowing for the enjoyment that members of the public can and do get from fireworks. At the same time, we want to reduce the impact on businesses and ensure that adequate safety measures remain in place. I believe that further limiting the permitted periods of use could risk a situation in which people would have a very limited number of days on which to use fireworks, and would inadvertently be encouraged to use them in unsafe conditions.