Chamber and committees

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.

I hear what the member is saying and understand why she wants to raise those concerns. Would she accept that the licensing scheme, and asking members of the public to undertake a training course when they apply for a licence, so that they will be taught where and when they can use fireworks and how to store and use them safely and lawfully, will go some way towards addressing those concerns?

That is where I do not agree, and I think that I have just covered that. Local authorities already have discretion whether to allow certain public displays. We had an exchange about that at stage 2. It is not in bill, but they do have that discretion. That may give the member some comfort on that point.

Amendment 82 would give discretion as to whether a public fireworks display would be allowed in a particular area. I am reluctant to deprive communities of organised public displays and the benefits that they can bring to communities. In many cases, local authorities are already able to determine the suitability of displays in a particular place, through their public entertainment licence processes, so I cannot support that amendment.

Amendment 1 sets out that a local authority must take reasonable steps to inform those consulted about what it means in practice when a zone is created, amended or removed. That is in line with the policy intent for the firework control zones and our expectations of how the publication of a decision on and information about firework control zones will work in practice. I am grateful to Ms McNeill for her engagement on the issue, and I am pleased to be able to support the amendment.

Amendment 83 seeks to provide a formal process for community groups to instigate consideration of a firework control zone and a duty on the local authority to respond to it. I sympathise with the amendment, as I share Ms McNeill’s views on the importance of community empowerment, and we had quite a long exchange on the point at stage 2.

Sections 30 and 31 of the bill enable Scottish ministers to make further regulations about firework control zones and require that local authorities must have regard to any guidance that is issued about those zones. I believe that such guidance, co-designed with local authorities and communities, is a more appropriate route than amendment 83 for setting out that further detail of the local procedures for control zones, including procedures for involving local communities. Should that prove to be insufficient, it will be possible to make regulations to strengthen those requirements in the future. However, I think that including it in the bill at this stage would remove flexibility before there has been an opportunity for local approaches to be developed and tested by those who know their communities best.

I think that the guidance is a more appropriate place to determine a process to give life to the member’s intention, because I fear that it would not be as simple for local authorities to do that as the member is describing, and we have to take that into account.

Earlier, Katy Clark asked me about the definition of public displays and community groups. We have taken quite a general approach to the definition and have chosen a widely understood definition that is used by local authorities at the moment. The definition has a two-part test within it. In order for an event to be considered a public event, the organisation involved would have to be established—it would have to have an identity—and the event would have to be open to the public. I hope that that sets the member’s mind at rest.

Will the member give way?

Amendments 86 and 90 aim to increase the maximum penalties that are available for two firework-related offences—namely, an offence that has been committed under the Fireworks Act 2003 and one that has been committed under the Explosives Act 1875.

Amendment 86 would increase from six to 12 months the maximum sentence available for people who are found guilty of an offence under the 2003 act, when that offence is related to the supply or use of fireworks in Scotland.

Amendment 90 relates to the offence of throwing fireworks in public under the 1875 act. However, that is a UK-wide offence. The amendment would make the penalty of up to 12 months’ imprisonment available for people who were found guilty of the offence in Scotland. That would be available as an alternative to the existing penalty of a fine not exceeding level 5 on the standard scale or as an additional penalty. I think that that would create an inconsistency in the penalties that are available to the courts throughout the UK for what is the same offence.

It is important that there is consistency, transparency and proportionality across the bill and the law on fireworks as a whole. The maximum penalties that are set out in the bill were included following careful consideration of the types of offences in the bill and the levels of penalty that are applicable for other fireworks legislation.

Amendment 38 makes provision for a statutory aggravation in cases in which fireworks and pyrotechnics are used against emergency workers. If an offence were found to be aggravated, certain requirements would fall on the court. The amendment would not require the court to impose a higher sentence—a discretion would continue to sit with the court in line with the general policy approach on sentencing. However, following the general approach to statutory aggravations that we have seen in other legislation, the court would be required to consider whether an enhanced sentence was needed. If the court decided that it was not, it should explain the reasons why.

In addition, the amendment would require courts to record when offences that included the use of fireworks and pyrotechnics against emergency workers had been found to be aggravated. That will help us build the data and evidence, over time, of the extent of the use of fireworks and pyrotechnics in offences against those who are risking life and limb to keep our communities safe.

I have welcomed the opportunity at each stage of the bill to hear from members on a number of very important issues of shared concern. One of those issues has been how best to ensure that the law has the necessary powers to allow the courts to deal with offending that uses fireworks and pyrotechnics against those workers who deal with personal risk to tackle emergency situations in the service of others. I was therefore grateful to Jamie Greene for lodging an amendment on that issue at stage 2 and for his willingness to engage with me in advance of stage 3 to ensure that we, as a Parliament, got the detail of this amendment right.

As I have said on previous occasions when this issue has been debated, the courts already have the ability to determine the most appropriate sentence for those who are convicted of such offences by considering all the facts and circumstances of each case. On balance, however, I believe that lodging this amendment is the right thing to do. A statutory aggravation reflects the serious nature of this particular offending and ensures that the nature of this offending will be taken into account when the appropriate sentence is being determined. It will also ensure that appropriate recording of aggravated offences will take place. I would be very happy if the Parliament would support the amendment.

I move amendment 38.

I have nothing further to add.

Amendment 38 agreed to.

Section 42—Certificates as to proof of having fireworks licence

Amendments 39 and 40 not moved.

Section 43—Forfeiture and disposal of fireworks and pyrotechnic articles

Amendments 41 to 47 not moved.

After section 44

To both members who have spoken already today, I say that the licensing scheme is a core part of the bill and was developed as a result of the review group’s recommendations.

Members are muddling different schemes in international jurisdictions. I suggest that comparing a scheme where fireworks are completely banned with the one that we would have here introduces a bit of disingenuousness to the debate. If the bill is passed, there will still be a route for people in Scotland to buy fireworks legitimately. If we were to close down all legitimate routes to buy fireworks, it might be reasonable to say that people might seek to buy them elsewhere. Would the member accept that?