Chamber and committees

Can I ask the minister a question on that?

Thank you, minister. I again refer to the potential of the legislation to drive people towards online purchases. What about those businesses that run websites? Examples include pyrofire.eu, bestpyroshop.eu, pyrobest.eu and so on. That list is not exhaustive; other retailers are available. What would be deemed a reasonable excuse from them? How would they show that they had taken all measures necessary to ensure that a Scottish consumer had purchased and held a licence? How would they even know that there is legislation in Scotland that pertains to the sale and restriction of products to unlicensed people unless they are exempt? That is still unclear, despite all the answers that we have been given.

What Katy Clark has said is testament to why we need a solution such as the one that is proposed in amendment 68. As the bill stands, a community group could pay a private company for an organised display, but it sounds as though that would be a lot more expensive than the group paying for a licence itself.

That is even worse. We will come on to debate the relevant group of amendments, but we now have a scenario in which anyone could use their status as a community group, however that is defined—I have tried to define it using the Community Empowerment (Scotland) Act 2015. There would be nothing to prevent a group of people from saying that they are putting on a community display and claiming exemption at any point in the year. We could have displays every day of the year, which surely defeats what the legislation is trying to achieve.

That is a welcome offer. The issue around instances where the misuse of fire has been a factor was quite an obvious one that jumped out at us in the first instance. Clearly, arson or other serious instances of misuse of fire should prohibit someone from obtaining a licence, or, at least, should be explicitly recorded on a person’s application in order to inform the licensing decision.

However, we believe that it is clear that there are other sorts of behaviour that should be disclosed on the application to inform the decision-making process. It strikes me that, in a scenario in which someone is a serial offender in relation to antisocial behaviour, whether fireworks have been involved or not, there is a judgment to be made about whether they are a fit and proper person to hold a fireworks licence. That is what is missing from the essence of the relevant offences in section 7(4) .

The four offences that the Government has explicitly chosen to put in section 7(4)—offences under the Fireworks Act 2003, the Pyrotechnic Articles (Safety) Regulations 2015, the Explosive Substances Act 1883 and the Explosives Act 1875—are all related only to fireworks, which means that the provision does not address the serious issue of people with convictions for antisocial behaviour and more serious offences, including those convicted on indictment, which my colleague also wishes to add.

There is scope for offences in addition to the misuse of fire to be taken into account by those who administer the licences, and for disclosure of those offences to be made mandatory, if, indeed, disclosure is not an explicit requirement. Serious offences should be taken into account, which was the point of expanding the list of offences from those under the four pieces of legislation in section 7(4). Even if we do not move the amendments, the Government could consider the issue ahead of stage 3, because, ultimately, a fit-and-proper-person test must apply to the question whether someone is suitable to hold a licence.

How long have we got? It is nearly lunch time, so I will try to be brief. Amendment 76 would place on the Scottish ministers the burden of ensuring that the information that applicants disclose is accurate. Section 9 makes it explicit that ministers must check that an application has been received, that the fee has been paid and that the applicant can demonstrate that they can possess and use fireworks safely. However, the section does not overtly mandate ministers to verify the accuracy or veracity of information that is provided in an application. If the section says that, the provision is hidden away—I cannot find it. The problem with that approach is that it places the legal onus on the applicant alone to provide truthful information—for example, about convictions, which we have discussed.

Amendment 76 would make it clear that, when ministers administer the scheme, the licence scheme operator would—before a licence was issued—be the ultimate check and balance for the information that had been given. The committee’s stage 1 report expressed concern about technical and legal issues that might arise from data sharing between agencies in relation to information that is provided. It is still entirely unclear how the licence scheme operator will ensure that true data sharing arrangements are in place. The easier and more technically competent that is, the easier it will be for ministers to stomach my amendment.

On the legal point, I argue that, before issuing a licence under a scheme that they have created and which they operate, ministers have a duty to check the veracity of information that is provided. That is a prerequisite to a licence being issued to someone who can subsequently purchase, possess and use fireworks. That covers amendment 76.

I hope that amendment 78 will be a talking point. It requires purchasing history to be recorded. The first question is why we need that. I am concerned that, as the bill stands, there is nothing to prevent a licence holder from making multiple purchases to the maximum allowed volume of fireworks per purchase not just on one day or in one place but on multiple days or in multiple places. Theoretically, a white van man could go from store to store and go online and, in effect, purchase a stockpile.

I know that it is not practical and perhaps not even possible to mandate retailers to record and share purchase history data. That would be ideal, but I know that the minister will confirm that we cannot do that. The next question is how we solve that problem and address the potential behaviour that I outlined.

We can ensure that the licence holder uploads or records purchase data on their licence if it is technically feasible to do so. Perhaps another iteration of amendment 78 could or should say that. A fairly insubstantial technical solution could monitor purchase history, perhaps even anonymously, and highlight red flags to authorities. In a scenario in which a white van man seller uses his perfectly legal licence to make repeated and multiple purchases across different venues, modes or geographies, it would become apparent that illegal activity might be taking place.

If we are going to use a new fit-for-purpose licensing scheme, let us get it right from the start and make it a scheme that actively helps the police, trading standards authorities and ministers to not only track but flag problematic behaviour before it becomes an issue. If the Government does not think that that is a good idea or that amendment 78 is the right way to do it, I am open to alternative means. However, at the moment, it would be perfectly possible for someone to use their licence to stockpile and illegally sell or misuse fireworks. The licence itself will not stop people who abuse the system—that will happen anyway—but the use of the data, which is big data, will powerfully prevent abuse before it happens. Amendment 78 might be one way of doing that.

I move amendment 76.

Amendment 67 proposes that the legal age for the purchase of fireworks be raised from 18 to 21. There are a number of reasons for my mooting that idea to the committee and the minister. It is clear to anyone who lives in a community that has been blighted by the misuse of fireworks and the antisocial behaviour that stems from it that the 16 to 21-year-old cohort often makes up the largest proportion of those who misuse fireworks.

We know that the average age of perpetrators of fireworks-related offences is around 22, although that is subject to further analysis. It has not been easy to uncover that data. If we had the benefit of more time, we could do more work on that. Further analysis of the information would be helpful if we had the time to get it. However, the point is that there is a clear pattern of behaviour from those aged 18 to 21 in the communities where the misuse of fireworks is a problem. Furthermore, there is already an acceptance in sentencing guidelines that young offenders up to the age of 25 are treated somewhat differently in the eyes of the law, so the law already has some precedent of acknowledging that young offenders are dealt with differently, whatever people’s views are on that.

Police Scotland’s submission to the committee at stage 1 said:

“availability is a concern when considered in conjunction with the profile of many football ‘ultra’ groups, which often attract teenage boys”.

That shows that younger groups are a big concern for the police, which is reinforced by Police Scotland’s comment that

“Protecting children and young people from harm is of paramount importance and in order to do this, potential supply chains to young people must be interrupted.”

One way to control the supply chain is to raise the legal age of purchase. On the face of it, 21 may seem high in relation to other pieces of legislation, but it is worth noting that other Governments are actively considering raising certain ages. For example, raising the legal age of smoking to 21 has been mooted. There is general consensus—academic and otherwise—that cultural and societal shifts can happen when minimum ages are increased. Cigarettes, although harmful, are not dangerous weapons, but fireworks can be.

I lodged amendment 67 to see what members think of the proposal to raise the minimum age for the purchase of fireworks. It is worth noting that the proposal comes from the fireworks industry and is in its action plan for Government on cracking down on fireworks misuse. Somewhat to my surprise, the industry, which has a vested interest in selling as many products to as wide a cohort of people as it can, recognises the problem of antisocial behaviour among the younger cohort of society. The industry accepts that, and it proposes that the legal age of purchase should be raised to 21. It is unclear what the Government’s position on that is, but I am sure that we are about to find out.

Amendment 68 relates to a point that came up briefly earlier in the debate about who may hold a licence and the nature of the licensing scheme. I hope that what I am trying to achieve is helpful to the Government. If amendment 68 does not do it, perhaps we can revisit the matter.

Amendment 68 seeks to allow a person to apply for a fireworks licence on behalf of a community group that wishes to put on a display, which we accept may be a proportionate and sensible way of conducting fireworks displays, or to allow a group to apply for a licence. That scenario would allow the group to apply collectively for a licence or to appoint a named person to acquire a licence on behalf of the group for a specific event.

That approach would have a number of benefits. The most obvious one is that it would prevent the possibility of fireworks being stockpiled by people who had purchased them individually to contribute to a community-led display. In essence, such a display would be created by many individuals who would each have a licence. In that case, there would be no real control over the quantity of fireworks that were purchased or the scale of the display. That could result in fairly large-scale displays being put on during the prescribed period.

Equally, community groups have expressed concerns that licensing might be time consuming and expensive for small community groups if it has to be done on the basis of individual licences. The obvious solution to that problem would in fact be stockpiling. As would be allowed under the bill, individuals could purchase up to the maximum volume allowed, which I understand is 5kg. That is quite a lot of fireworks, by the way.

I am interested to hear what the Government thinks about the potential for group licences and licences that are obtained by nominated individuals on behalf of a group. There might be repercussions with regard to clarity about the liability of the licence holder, which would need to be discussed. For example, we would need to consider a situation where a group purchased stocks and used fireworks under one licence rather than placing liability on one unlucky individual. The Government might need to explore that further, but the point of stage 2 is to probe such issues. I am keen to hear the debate on my two amendments in the group.

I move amendment 67.

Yes, I am happy to concede that my amendment 68 might not be the solution to the conundrum, but it has shown that there is still a conundrum that is unaddressed. I do not know how the Government intends to respond at stage 3, but the matter needs to be fixed. It might be up to individual members to lodge amendments at stage 3 to clarify the position.

The debate also raises the wider issue of the exemptions and the permitted days of use, and it raises the very real concern that Pauline McNeill mentioned that many individuals in a group will simply use their individual licences to acquire fireworks and put on a display. It is very much an unregulated environment, in that respect. We could have a lot of people who just happen to be using their licences to buy and set off fireworks at the same time in the same place. Quelle surprise; what a coincidence. It is not a very co-ordinated approach to dealing with public displays. Therefore, I ask the Government to reflect on that point.

I do not have a view on raising the age; I have lodged amendment 67 because it is worth having a debate.

I am intrigued as to whether the Government has consulted on that specific question. By that I mean this: were the public ever asked if the minimum age for purchase of fireworks should be raised from 18 to 21? If that question was asked, what was the answer? If it was not, why? If we were to ask that question now—while the issue is on the public agenda—what would people say? It is not for me to conject what the public’s answer might be, but I guess that a fair proportion might be sympathetic to that—more so because the industry is sympathetic to it.

There is space for consultation around the issue or, at least—in the bill or somewhere in legislation—on the Government’s ability to change the age in the future. I presume that the bill is not set up so that the minimum age could be raised in the future, through this or other legislation, if it became apparent that that was the will of people, direction of travel or something that would benefit society.

Not agreeing to amendment 67—or not pressing it—will not address the issue that people aged between 16 to 21 are the group who are most likely to be offenders in misusing fireworks. For that reason, I have lodged amendments about education and so on, to which I will speak later.

On amendment 78, I accept the point that a licence might become invalid if the purchase history is not recorded—that would be a by-product of a bad solution. However, I disagree that the information is not useful or helpful. I think that it is very helpful and useful, so I make a plea that, as the licence scheme is developed, the information is recorded where it can be captured and if the technology is available. We still have not addressed the issue of how people might misuse their licence to make repeated purchases of products in various locations and from various sources, with a view to stockpiling and selling on the illegal market. That is a real possibility, and it is unclear how the issue will be monitored. The amendment, even if it is not worded properly, may provide a technical solution to monitor that.

I have an issue with what the minister said about amendment 76, however. I will need to check the Official Report, but I think that the minister said, “That is how we hope it will work in practice.” That is very different from having a legal duty. Section 9, “Grant of fireworks licence”, explicitly places a legal duty on ministers that they

“may grant a fireworks licence only if—

(a) a valid application and any applicable fees have been received,

(b) the requirements under section 6 and 7 have been met, and

(c) they are satisfied that the applicant can be permitted to possess and use fireworks safely and appropriately.”

What is missing is what amendment 76 would add, which is a requirement on ministers that

“they are satisfied that the information disclosed or provided by the applicant under section 7(1) is accurate”.

It is a fairly simple ask and I cannot see why it would be rejected.

I am keen to hear what other members think about amendment 59. I know that you are all shy this morning and it is early, but it is important that we have a proper debate about the issues.

The amendment does a number of things. It is a whole page in length, but it is fairly self-explanatory. First, it would require ministers to review current legislation

“in so far as it relates to the supply and use of fireworks and pyrotechnic articles”.

That is the important bit.

Secondly, ministers would have to determine, as a result of that review, whether any part of the legislation requires to be repealed as a result of the introduction of the bill, and whether any legislation must be introduced to address any gaps in existing legislation.

I should put on record a huge amount of thanks to the parliamentary legislation team for helping members to produce amendments. Through that team’s research and kind assistance, the amendment includes a list of the legislation that is most commonly used in the charging or prosecution of offenders relating to the illegal sale or misuse of fireworks and pyrotechnics. The list is not exhaustive. Proposed subsection (3)(j) would allow ministers to amend the list, where that is deemed appropriate.

That is the what, but I guess that the main question is about the why. It became apparent to committee members from the feedback from stakeholders that, rightly, we already have a large number of laws that regulate the use, sale and purchase of fireworks. However, we also heard that the reality is that those laws are not being used to their full extent. The evidence for that is abundant and self-explanatory—the numbers speak for themselves. For example, we know that it is already illegal under existing legislation to use a firework as a weapon, to use a firework for antisocial behaviour or to use a firework to attack emergency service workers. We also took evidence on that latter issue, and I hope that the committee agrees that we need to tackle it.

The problem is that we are seeking to introduce new legislation without a proper and full review of what is already in the public domain and how effectively we are using existing legislation to deal with the problems that the bill, in essence, seeks to deal with. Those issues are the misuse of fireworks, antisocial behaviour involving them and their illegal sale.

Over the past five years, Police Scotland have recorded more than 6,000 incidents involving the misuse of fireworks. That is quite a lot. Of those 6,000 incidents, 518 were recorded under the Explosive Substances Act 1883 and other pieces of legislation that relate, among other matters, to the keeping and supplying of explosives. Over that five-year period, arising from those incidents, only 136 charges were brought and, of those, only 16 resulted in a conviction. There is clearly a disproportionate ratio of incidents to criminal charges, prosecution and successful conviction. We will come to the issue of convictions in a subsequent group of amendments.

In fact, it has been impossible for the committee to quantify the scale of the problem of nuisance complaints about fireworks to the 101 number, via 999 to emergency services, to local authorities or to trading standards. However, we know that the conversion rate of incidents recorded to successful prosecution is pitiful. We might not have to rush the bill through in the way that we are if we used the laws that exist to their fullest extent. Amendment 59 asks the Government to do that.

In fact, in its evidence to the committee, the Scottish Community Safety Network questioned whether further legislation was needed at all. It said that

“New restrictions ... specify limits to the quantities of fireworks that can be sold, the times of sale, and times of use. Therefore, we suggest these measures are given adequate time to bed-in and take effect. This might help government, local authorities and industry measure the impact and inform which – if any – of the additional proposed restrictions are needed.”

We have listed specific laws in the amendment, including the Public Order Act 1986, which covers the majority of breach of the peace offences and offences relating to the use of dangerous items in a public place. My colleague Russell Findlay has lodged other amendments, which he will speak to later, that relate to widening the scope for offences that could or should bar people from owning a fireworks licence. We will come to that matter. However, what we are asking is not onerous. We want the Government to prepare and publish a review of the existing legislation specifically in relation to the sale and use—or indeed misuse—of fireworks and lay before the Parliament a report, presumably for debate and scrutiny. One would think that the Government would want to proactively maintain oversight of the use of laws that govern fireworks and pyrotechnics.

Although we have no ideological problem with adding new legislation such as this bill, it is clear that many people in our communities are blighted by the misuse of fireworks, and their use in antisocial behaviour, which is intensified and concentrated in geographic pockets. That is the issue that is not being clearly addressed. With the great range of powers that are already available to the police and prosecutors, people are rightly asking why that is not happening. I rightly ask why the Government cannot agree to conduct such an exercise. I look forward to hearing members’ feedback on that issue, which the committee’s stage 1 report flagged as a point of huge concern.

I move amendment 59.