Chamber and committees

I will not press amendment 67.

Amendment 67, by agreement, withdrawn.

Amendment 68 not moved.

Amendment 14 moved—[Ash Regan]—and agreed to.

It is always nice to be thanked for something that I have not yet said. [Laughter.]

I have no problem with amendments 16 and 17. I did not really understand what the amendments do, so they must be sensible.

Amendment 75 simply seeks to ensure that ministers will comply with procurement legislation with regard to the fireworks safety courses. Given that there is an expectation that the certification and licensing scheme will be Government led, we want to ensure that, during that procurement exercise—to come back to Pauline McNeill’s point—we get value for money. We also want to ensure that the scheme is future proof, so that many of the requirements of the licensing scheme can be easily integrated with certification that is technologically future proof, that it includes transparency and accountability and that it allows data sharing, where that is relevant, suitable and proportionate. If the minister has no problem with the wording of amendment 75, I do not see why we cannot put it in the bill. It is not controversial.

The same goes for amendment 80. I think that it would be very helpful if the successful completion of the safety training is clear on the licence and not just a requirement of getting the licence. Again, if that is not controversial, I do not know why it cannot be on the face of the bill. I appreciate that there is an argument that it could be an operational matter but, as far as possible, the committee is keen not to shove too much of that into secondary legislation when we know that it would be beneficial to put it in the primary legislation, That is what these two—quite helpful—amendments seek to do.

Good morning, minister and colleagues. As you can see, I have lodged a number of amendments so I will try to make my points concisely and sensibly.

Amendment 58 is one of a number of amendments through which I am seeking to change references to the negative procedure to references to the affirmative procedure. That will pop up in various groupings that we will debate today. Essentially, all the amendments seek to serve the same purpose, which is to increase scrutiny by ensuring that regulations are approved under the affirmative procedure, ideally by the Criminal Justice Committee, thus allowing members of the committee of all shapes and colours the opportunity to reflect on future Government actions.

As committee members know, the negative procedure is often, unfortunately, a bit of a shoo-in when it comes to making changes in regulations. We saw that only last week when we reflected on a Scottish statutory instrument under the negative procedure with very little discussion and debate, and with no member of the Government present or any method by which to vote on the subject of the instrument. That issue crops up frequently, not just in this committee but in many others.

In this case, the regulations made under section 2(2)(a) will be subject to the affirmative procedure, and that is welcome, although those made under section 2(2)(b) will not be. In the spirit of consistency therefore, I have sought to alter that. That will crop up as a theme in future groupings, and I hope that the Government will reflect on the committee’s request to further enhance the bill as we go through the process, given the fact that so many of the provisions will appear in secondary legislation and not in the bill itself, which is another issue that cropped up in our stage 1 report.

My other amendment in the group is amendment 89, which essentially seeks to further enhance the list of suitable parties whom the Government must consult when it is drafting certain regulations under the bill. In this instance, it relates specifically to those who might be likely to be affected by the licensing of fireworks as a matter of principle. In amendment 89, I have listed specifically and overtly who I believe the Government ought to consult, including community groups that might have a view on the future of the fireworks regulations and licensing scheme; charities, many of which made representation to the committee during the process, as well as those that did not and are still finding out about the process and the passage of the bill; retail groups, be they physical or virtual or online, for obvious reasons; industry organisations and trade bodies, which have provided invaluable feedback on the bill’s proposals, and which know their industry best; and religious groups and organisations, which will play a large part in the restrictions on the use of fireworks as proposed by the Government in the bill as drafted, specifically the use of fireworks on the restrictive dates that have been proposed, which we will come on to later.

In my view, too few organisations have had a full and proper say on the bill’s content, although not on the premise of the bill—we all accept that the consultation was extensive and expansive and we all know that there is a strong feeling that we want to do something. However, even as we are sitting here during stage 2, people are still coming out of the woodwork who want to have a say on the content of the bill because the devil is very much in the detail. They must all have a good chance to share their views, which is why I have sought to expand the list of consultees. It is neither exhaustive nor limited. The Government would also have the flexibility to add consultees to the list as it deemed fit, which is entirely appropriate.

With regard to the other amendments in the group, I have sympathy with some of the proposals from Katy Clark, which I hope are in line with mine in their aim to strengthen the procedure by changing it from the negative to the affirmative. We will, no doubt, hear from her shortly. Our view is that the purpose and intent of amendment 52 remain unclear, so I will reserve judgment on it until she has spoken and I might address it in summing up.

We are also happy to support the Government amendments in the group, with the exception of amendment 20, because, on first reading, its purpose and effect on the bill are unclear. It says:

“In section 18, page 8, leave out line 34”.

The effect is to remove ministers’ power to make further provision by regulation

“in relation to the fireworks licence (for example, specifying its form and content).”

It is unclear why amendment 20 removes section 18(2)(c). I have no further comments on the amendments in the group.

I move amendment 58.

I will try to address some of the comments and questions from members, and I thank everyone for the respectful tone in which the feedback has been given.

Pauline McNeill raised concerns about a lack of confidence in the legislation as it stands. I am not pretending for a moment that my amendment will fix that issue. In the short time that we had available to draft the amendment, we thought about how we would word it and what would be required of the Government. As the minister rightly pointed out, the amendment does not say that the current legislation needs to be enforced. That is because we work on the presumption that legislation is enforced and should be enforced, and that legislation should not have to say that that will be the case. Within the confines of the bill, we have tried to set out what Government could do.

There is a lack of data—we know that. The data that we have is concerning enough. For example, since 2016, only 136 charges have been made in relation to fireworks offences. That is not a lot. The minister talks about the amendment doing a disservice to the public, but it is a disservice to the public that it is blindingly obvious to everyone that existing legislation is not being used to its full extent. The question why that is, is another matter, but unless we accept that it is not being used to its full extent, we will not be able to fix that problem.

I am not saying that we should not add new legislation to the picture. We voted in favour of the bill at stage 1. What I am saying—this is in response to Fulton MacGregor’s point—is that I am afraid that, if the requirement for the Government to conduct a review is not in the bill, it will not happen.

Listening to what the minister has just said, it is quite clear that there will not be a review. If she had asked us not to include the requirement in the bill but said that the Government would undertake such an activity, I would be minded not to press the amendment and to trust the Government on that. However, that is not what we are hearing. Instead, we hear, “We already did that, and we don’t agree that there is a problem.” However, I am afraid that there is a problem. The committee believes that there is a problem. That is set out in recommendations 3, 4 and 8 in our stage 1 report, the conclusion of which says:

“The Committee notes that there were only 136 charges over 5 years of which 16 resulted in a summary conviction according to figures provided to us from COPFS”.

Again, I note that we had real issues in getting data on this issue; everything was very last minute. That raises the issue of the enforcement of the current law.

At paragraph 341, the report quotes a witness questioning whether we were prosecuting

“to the full extent of the law”.

Further, at paragraph 338, the committee says:

“Concern was expressed about the current level of prosecutions to date for fireworks offences, and whether sufficient action is being taken by the police service and the Crown Office to identify and prosecute offenders.”

Nothing that I have heard so far in the Government’s response will give anyone comfort that that issue has been acknowledged, let alone dealt with.

Nowhere do I say that we need to stop adding legislation. Indeed, proposed subsection (2) in the amendment says:

“This section does not apply to section 21 of this Act.”

As members will know, section 21 relates to proxy purchasing and the supply of fireworks to minors, and no one will want to stop those provisions going ahead as quickly as possible. In fact, the amendment exempts that very section; after all, the reason why we are rushing through the bill is to fix a loophole that has been identified. We all want it to be fixed, and we will let that happen.

I also dispute the argument that the amendment will delay the introduction of the legislation. Again, this is a stage 2 amendment; I would be happy to reword it if the Government wanted a shorter timescale for a review. Indeed, I think that the minister and her team of civil servants could conduct such a review quite quickly. The list of acts to be reviewed will come as no surprise to anyone in the justice sector, because they all cover offences related to the use and misuse of fireworks and their illegal sale and purchase.

I am.

I hear what the minister says about changing from the negative procedure to the affirmative, and the balanced judgment that has to be made about which process is used. However, I would question whether the affirmative procedure would have a disproportionate impact on the work of the committee or indeed on the committee’s time. I would argue that it is for the committee to decide how we use our time, and not the Government. I do not believe that using the affirmative procedure would disproportionately impact the committee. We can easily and quickly process affirmative instruments, with due process—we do it weekly.

The problem with the negative procedure, as a principle, as the minister well knows, is that it leaves little room for manoeuvre. With any form of secondary legislation, there is limited opportunity to have full and proper debate, and it is virtually impossible to consult wider stakeholders, which is why I am quite drawn to the pre-laying procedure, although I am not quite sure where that fits in with parliamentary process.

What struck me throughout our deliberations on the bill at stage 1 is that what we do in this room is often not well publicised outside it. It is only when people catch the wind of where things are heading that they get in touch with the committee and want to consult us about their concerns. That was quite apparent with the stage 1 report, when there was limited opportunity for consultation between the publication of the report and the stage 1 debate and vote in the chamber. Even on the day of the debate, people were getting in touch with members with concerns about the content of the stage 1 report. The same is true with any regulations that come before us, some of which, unfortunately, introduce a lot of known unknowns.

I will press amendment 58 and ask the committee to strengthen its scrutiny ability. If anyone on the committee feels otherwise, I would be intrigued to hear why.

On the issue of consultation, there is always the danger of starting to create lists. We have this conversation every time we do a stage 2. However, in this instance, given the specific nature of what the bill does and who it affects directly, it is entirely appropriate to hear from the organisations that I have overtly listed. It is not an exhaustive list—it is not saying that we must consult only those people. The bill will say that they “must” be consulted. The problem with leaving it open, and saying that the Government must do wide-ranging consultation, or whatever other proposal is in the bill, is that that is true only if those people are genuinely consulted. It is quite clear—it became apparent throughout stage 1—that not all of them have been consulted. In order to ensure that those people are consulted, I want them included in the bill. It is as simple as that. I do not understand why we would not want to hear from religious groups, trade bodies, charities and community groups, who are the very people who will be most directly affected by the bill. By listing those people in black and white in the bill, we will ensure that they have a voice in future secondary legislation.

I appreciate that, because I am summing up, the minister is probably unable to come back on those points. However, at any point today, the minister is welcome to intervene, and to question, agree with or disagree with what I am saying.

I listened to Katy Clark’s arguments and I am happy to support all her amendments.

To be clear about what the bill seeks to do, where does the ultimate onus and responsibility lie for checking whether someone holds a licence? In a physical scenario, is it at the point of purchase or delivery? If it is an online purchase, does it lie with the person who processes the order at the other end, in the back office?

I do not know what we can and cannot legislate to do in that regard, but, under the bill as drafted, it remains unclear where the ultimate responsibility lies and whose job it is, in the law’s eyes, to check whether the purchaser holds a licence or is exempt. That is the reason for amendment 61.

It is probably easier to deal with that point now, as I am likely to forget to do so in my summing up. You are absolutely right: it is quite apparent that it is nigh on impossible to mandate retailers in the statute in the way that we might need to do in order to ensure that someone holds a licence. That is why I have worded my amendment in the way that I have. The onus is on the licence holder to present their licence “at point of purchase”, because that is most definitely within the competence of both the Parliament and the bill.

Sure. However, the manifestation of the principle is the removal of the scheme entirely by the removal of section 4, and its removal would create issues. I suspect that, with the benefit of time, the member would have been able to formulate something else.

I have another couple of amendments of a similar ilk coming up, because I have reservations about the proposals and I want the Government to revisit them. I have proposed how it should do that and, more important, I have given timescales.

I hope that the member will reflect on amendment 90, which is on post-legislative scrutiny—it is unclear whether that will be considered today or next week. It provides for a review of the licensing scheme and the effect that it is having on the black market and illegal purchasing, for example. Other amendments are coming up, and I think that we will have a good debate about them. I hope that the member will be willing to support them in return for my lack of support for amendment 46.

I have heard the concerns about amendment 60. Valid concerns have been raised in the debate about the reasonable excuse, so I will not press that amendment.

However, I will move amendment 61, which is quite a simple one. There are still quite muddy waters in relation to what we can do through the bill to ensure that people present their licence. Rona Mackay is right to say that retailers already have to verify someone’s age when certain products are sold. That is all well and good in a physical environment in Scotland. If someone buys fireworks from a Scottish retailer, I do not think that there is a problem. The legislation is clear about who is responsible for such sales. However, if someone buys fireworks from a UK retailer, it is slightly less clear where the jurisdiction lies. If the sale is from outside the UK, the position is even less clear, other than the courier being landed with the entire responsibility if someone makes a purchase. During the debate, I googled “Buy fireworks from the EU”. There are dozens of websites that will happily sell fireworks to people in Scotland, and I am afraid that nothing in the bill will legislate for that.

In my view, the simple solution is to put the onus on the purchaser to present their licence to the retailer in whichever manner is possible. These days, that should not be too difficult to achieve from a technical point of view. Much of that will depend on the technical solution that the Government procures and introduces to administer the licensing scheme, but it should not be beyond the wit of man to allow for a licence to be presented digitally or physically at the point of purchase. That would put the onus back on the licence holder, because they would need to have their licence with them if they were buying fireworks, in the same way that people need their age identification if they want to buy alcohol or cigarettes. We know that we simply cannot have wholesale legislation in relation to enforcement for online or physical retailers, so we would put the onus back on the purchaser. I struggle to see why that would be an issue, so I will move amendment 61.

Amendment 60, by agreement, withdrawn.

Amendment 61 moved—[Jamie Greene].

I will speak to amendment 66 first. Amendment 66 is a short amendment to section 5, page 3, line 14, which would leave out the word “is” and insert “may be” instead. It is the only amendment in my name in the group, but I will also speak to Russell Findlay’s amendment 62.

Amendment 66 relates to the supply of fireworks to an unlicensed person, which we debated earlier. That section of the bill could, in effect, criminalise retailers, online sellers, shopworkers and delivery drivers who sell fireworks to people without a licence. In itself, that is a controversial debate. However, it is still entirely unclear whether the liability lies with the individual at the point of purchase or with, for example, whoever is recorded on the receipt of the purchase, the owner of the premises, the business or the website, the retailer, the executives or the trustees, and so on. Section 5(3) explicitly states that it is a defence to show that the person “took reasonable steps” to establish that the purchaser either had a licence or was exempt from having a licence.

To go back to our earlier debate about offering flexibility in the judiciary—I have conceded the need for that—I have proposed changing the wording to

“It may be a defence”,

to allow for the discretion, which we agreed to earlier this morning, for the police, the courts and the justice system to determine on a case-by-case basis whether the defence that has been provided is bona fide and robust. It cannot be a black and white matter, as it is a defence—that was the mistake that I made in my previous amendment.

On the wider point, notwithstanding amendment 66, unanswered questions remain regarding the practicality of who is committing an offence and under what circumstances if an unlicensed customer is able to successfully purchase a product. I ask the committee to reflect on that issue.

I agree with what has been said so far about the other amendments in the group relating to penalties. However, there is an additional point to be made about the message that is sent out if we increase the penalties. The option of an increased penalty at the disposal of the sheriff is not an automatic increase that means that all fines and sentences will go up, but is something that offers the sheriff a wider toolkit. That is important, because it will act as a deterrent to those whom we know engage in problematic behaviour; it reflects the strength of feeling that we have heard from communities that have suffered and which feel that the law is not necessarily a deterrent as it stands; and it will send a strong message that we will take the matter seriously.

For technical reasons to do with the presumption against shorter sentences, everyone knows that—irrespective of one’s view on the matter—a six-month sentence is not a sentence served. That is a fact. Increasing the maximum sentence to 12 months means that there is real potential that the most serious offenders, in committing the most serious offences, would run the risk of going to prison. That potential does not currently exist.

I appreciate that we would be making a jump across water, but that is important, because it would give sheriffs a disposal that they do not currently have available to them. There would be a meaningful chance that people could go to prison for the most serious of offences. I am not saying that they would or that our view is that they should—I am simply saying that it would give sheriffs that option. It is an important jump, which is why we would increase the maximum sentence to 12 months. I ask the Government and members to support the increase, or to explain why we should not do so.