Chamber and committees

I believe that the maximum penalties that are set out in the bill are proportionate to the offences in the bill. That is the key point. All the offences are subject to level 5 penalty caps. Those levels have not been arbitrarily chosen—they have been deliberately included following careful consideration, and they are based on the types of offences in the bill and the levels of penalty that are applicable in other fireworks legislation. That ensures that there is consistency, transparency and proportionality across the bill and across the legislation on fireworks overall.

I have listened to the arguments from Mr Findlay and Mr Greene. Mr Greene raised an instance in which something very serious had happened involving fireworks. However, it is likely—Mr MacGregor made this point—that, where fireworks or pyrotechnics are used against emergency workers in a very serious offence, that would be taken forward through other legislation, or possibly through common-law offences such as assault or breach of the peace. Under both those offences, long custodial sentences up to and including life imprisonment can be handed down. I hope that that gives Mr Greene some comfort on that point.

No. It was actually consideration, and it was to do with aligning the bill with other legislation that is similar.

We are not aware of any specific or compelling evidence that higher maximum penalties are necessary to deal with the offending behaviour that we are speaking about. Therefore, I believe that there is little justification for increasing the maximum available penalties, and that the penalties that are set out in the bill strike the right balance, are proportionate and give the courts the appropriate powers to deal with people who commit such offences.

Katy Clark raised the issue of other disposals. Of course, other disposals are available, at the discretion of the court, based on the circumstances of the case.

I ask Mr Findlay not to press amendment 62 and not to move his other amendments in the group. Failing that, I ask the committee to vote against them.

The Scottish Government’s policy of having a presumption against short sentences has been debated, but it is important to keep in mind the fact that it is a presumption, not a ban. In any given case, the court can decide to impose a sentence of a short period of imprisonment, but only if no other method of dealing with the person is appropriate.

I think that that information is part of the data that we gave to the committee. From looking at it briefly now, it looks as though no custodial sentences have been imposed for existing fireworks offences. However, that does not mean that, if there was a more serious incident of the kind that I described earlier, a custodial sentence would not be imposed. Let us say, for example, that somebody had injured an emergency services worker. That would be proceeded against under a different piece of legislation. I hope that that makes sense.

I will finish what I am saying and then I will come back to the member.

A defence of that nature provides a degree of comfort to retailers that they do not have to take extraordinary and impractical steps with regard to the sale of products that are subject to legal restrictions. It is for that reason that the standard approach was taken in the bill.

Mr Greene’s amendment 66 would greatly reduce that comfort, and would mean that that defence would not be available, even if the supplier took reasonable steps to establish whether the person whom they were supplying had a licence or was otherwise exempt. I do not think that it is fair that a supplier should face criminal conviction or punishment in those circumstances. The likely consequence of the amendment would be a reluctance to sell fireworks, given the possibility of conviction despite taking reasonable steps to comply with the law. Where sales continued, the transaction might prove overly onerous and time consuming, and add to the cost of doing business for both the supplier and the professional businesses that were legitimately purchasing fireworks in circumstances in which they were exempt but having to go to extraordinary lengths to prove that.

I understand and sympathise with the intent to ensure that suppliers comply with the law. However, for the reasons that I have set out, I do not think that the amendment is appropriate.

I give way to Jamie Greene at this point.

I appreciate what the member is saying, and it is understandable that she is asking the question. I cannot really answer it, though, because we have not been able to undertake the consultation exercise. However, I have made it clear on the record that we are committed to ensuring that the fee is set at a reasonable rate, because I very much understand the arguments against making the fee a barrier. We do not want to do that; we want to ensure that people are able to do the right thing.

Section 4 of the bill sets out, among other things, that

“It is an offence for a person, without reasonable excuse, to purchase, acquire, possess or use a firework ... without ... a fireworks licence.”

Regarding amendment 60, I understand that Mr Greene is seeking to strengthen the language in relation to those offences to ensure that the offences can be effectively enforced and to address any concerns around that. However, I have issues with the amendment. Section 4 has been carefully drafted with the understanding that people who otherwise would not be exempt might make a genuine mistake—I think that Katy Clark was alluding to that point—or be in a situation that is outwith their control in which they are, for example, inadvertently in possession of a firework.

A similar provision for a defence of reasonable excuse operates in relation to offences involving the possession of corrosive substances under the Offensive Weapons Act 2019.

I think that we are going significantly off topic. The first few amendments in the set of amendments before us relate to use of fireworks without a licence and possession of fireworks without a licence. Those are the offences that we are discussing here. I am content that the penalties that are in the bill are proportionate, and I think that those that Mr Findlay has suggested are not proportionate for the offences in question. The penalties have been carefully considered as part of the development of the bill in order to align them with those for similar offences in other fireworks legislation.

I move on to amendment 66. For such offences, it is standard for a supplier to have as a defence that they took reasonable steps to establish that the person whom they supplied had a licence or was exempt. For example, versions of such provisions can be found in the UK Parliament’s recent Offensive Weapons Act 2019 as it applies in Scotland in connection with age-restricted sales, and in the Scottish Parliament’s Licensing (Scotland) Act 2005 as it applies to age-restricted sales of alcohol.

The current defence allows for the court to make a judgment as to the facts of the sale. It means that, when a person is sold fireworks who should not have been, there is no offence if the retailer can show that they genuinely tried to follow the rules but nevertheless did not due to something that would not have been apparent to an ordinary supplier who was acting diligently. That could include, for example, a genuine mistake or clever deception on the part of the buyer.

As I have laid out, there are requirements on the seller and the purchaser, and requirements on people in the supply chain. That will work in a similar way to the delivery of age-restricted products, in which the person who is delivering the products must satisfy themselves that the recipient is of a permitted age to receive the delivery. I am sure that we have all seen or noticed that, when things such as alcohol are delivered as part of our online shopping.

I believe that the issue is covered and that a specific provision that relates only to the point of sale is not only unnecessary but would cause confusion and lead to a misunderstanding or even complacency in the wider supply chain regarding licensing checks.

I do not know whether Russell Findlay has had an opportunity to read the letter that I sent to the committee, but I hope that the committee received it and was able to look at it yesterday. In the letter, I set out in detail the steps that are being taken to look at such things as illegal online sellers. There is quite a lot of detail in that response about the steps that the Government and its partners, such as trading standards, would take in order to address Russell Findlay’s point.

We have heard from Ms Clark that section 4 should be omitted entirely. That would mean that no offence would be committed by a member of the public who did not have a licence when purchasing, using or possessing fireworks. The onus would be shifted entirely on to suppliers and the offence that would be committed by supplying fireworks to an unlicensed person. Removing section 4 would significantly weaken the licensing system and our ability to achieve the policy aim of ensuring that all firework users have completed training on the safe and lawful use of fireworks.

Focusing the consequences of not having a licence solely on suppliers would weaken further the policy aim of bringing about more responsible, appropriate and safe use of fireworks by members of the public. Making it a criminal offence not to have a licence is a fundamental part of driving the societal change in that area and ensuring that there is a high degree of compliance with the requirement to undertake the training.

The licensing scheme was based on a significant amount of consultation and evidence gathering. What Katy Clark is suggesting in amendment 46 is very disproportionate, because it would totally remove the licensing scheme, which received significant public and stakeholder support.

In the scenario that the member has outlined, the delivery company would have the duty under the legislation.

I move on to amendment 126. I understand that Russell Findlay has lodged the amendment to provide clarity. However, I fear that, rather than clarifying any perceived issues, its addition could cause confusion.

The Criminal Procedure (Scotland) Act 1995 sets out that summary criminal proceedings for statutory offences must ordinarily be commenced within six months from the time when an offence is committed. However, the act already sets out that that section applies unless another piece of legislation fixes a different time limit, as is the case with the bill.

The 12-month time limit that is set out in the bill is deliberate—it ensures consistency with other fireworks legislation. Another piece of legislation can be made by the Scottish Parliament or, indeed, by the UK Parliament to alter the time limit. That is already clear from the powers of those Parliaments, and the clear wording to that effect, in the Criminal Procedure (Scotland) Act 1995. Therefore, I believe the amendment to be unnecessary and, ultimately, it could cause confusion.

I ask Mr Findlay not to press amendment 62.

I understand that amendments 1 and 69 seek to ensure that the licence fee and any subsequent changes to the fee level are proportionate and that the licence is accessible to the people of Scotland. I am sympathetic, and I understand that Pauline McNeill has lodged amendment 1 as a probing amendment in order to discuss the issue further. That is totally understandable. However, I do not consider that the amendments are the most effective way to ensure that the licence fee is fair.

Amendment 1 seeks to set an upper limit of £25 on the licence fee. I consider that that would pre-empt the consultation process that is required to seek views on the licence fee. It would also mean that an assessment of the running costs could not be undertaken before a limit was placed on the amount, meaning that it would not be possible for operational costs to be properly considered when setting the fee.

Both amendments 1 and 69 seek to ensure that fee increases are in line with inflation. I think that there are some technical problems with that. The amendments do not include or refer to a measure to define the rate of inflation.

A number of members have mentioned that it is problematic to state a fee in the bill. That is because placing a statutory limit on the fee, or on the amount of fee increase that is permitted, could lead to a protracted process of amending primary legislation to adjust the upper limit or frequent use of secondary legislation to increase the fee in small increments. So, there are practical issues with the amendments as well.

I remain committed to ensuring that the licence fee is proportionate and fair. It will be set following wide-ranging consultation—which I hope addresses one of Russell Findlay’s points—and at a rate that ensures that, although robust checks and balances are in place, the fee is not a restrictive barrier to the safe and lawful use of fireworks.

I ask that amendments 1 and 69 not be pressed. If they are pressed, I urge the committee not to vote for them.