Seòmar agus comataidhean

I have two amendments in this group and Colette Stevenson has the other two, which I will come on to.

My two amendments are on post-legislative scrutiny, which is a theme that often crops up at stage 2 and is often notably absent in the first draft of legislation. Nevertheless, it is a common feature, and the wording that I am proposing is based on wording that has been not only debated already but agreed and included in legislation.

Amendment 90 seeks to introduce a review of the licensing scheme. It is further to the debate that we had last week about the concept and nature of the scheme and to the long conversation that we had about the fee structure and the effect that it might have on applications. Although there is consensus—or, at least, acceptance—among the committee that there will be a licensing scheme of sorts, members have sought to improve it.

Because much of the scheme will be subject to future legislation, although not primary legislation, with limited opportunity—and I say that respectfully—for the committee to review the nature of the Government’s proposals, I felt it important to introduce a review that would ask ministers to

“carry out a review of the operation and”—

more important—the

“effectiveness of the ... scheme.”

Subsection (2) of the proposed new section to be inserted by amendment 90 makes three asks of the review that the Government must undertake, the first of which is that there be a review of the “fee ... and its appropriateness”. I am stipulating that the Government review not the nature of the fee—we have had the debate about rises and whether there should be a fee at all—but simply the “fee ... and its appropriateness”, which is the key word in that paragraph.

Secondly, the review should consider

“whether there is any evidence that a fee is a deterrent to a person or persons applying for a fireworks”

licence. The Government will not know that until after the scheme has been launched and it has quantitative data on whether the scheme is putting people off, as members have suggested and as the committee discussed robustly at stage 1.

Lastly, the review should include consideration of

“whether there is any evidence that the ... scheme is contributing to illegal activity including the illegal supply and purchase of fireworks.”

It is clear that, by “illegal activity”, I mean the black market in any form.

I am also asking that, on completion of the review, ministers

“(a) prepare and publish a report of the review’s findings,

(b) lay a copy of the report before ... Parliament,”

and, thereafter,

“(c) make such proposals ... as they consider appropriate”

to change the licensing scheme where it is clear that there is a need to do so.

It might transpire that the review of those three points concludes that the licence scheme is working well, effectively and appropriately, in which case no further changes need to be made. However, without putting a requirement on the face of the bill for such a review to take place, there is, first of all, no guarantee that it will take place, other than the minister promising, “Of course we will do that.” Secondly, and more important, such a requirement might give comfort to members who have genuine concerns.

Of course, this concerns not just members. Yesterday, the committee received a letter from the British Fireworks Association, which stated that

“this Bill will NOT reduce the misuse of Fireworks. It will have precisely the opposite effect and will create a blackmarket ... in Scotland, the likes of which has never been seen before.”

I do not have a particular view on that theory, but that is the view of the people who are at the coalface of the industry. As it is clear that people do have reservations about the proposals, a review is a sensible way of allowing the Government to proceed with its plans while making good on its promise to be open-minded and transparent about their efficacy.

Amendment 129 is slightly different, because it seeks a review of the legislation itself, and its requirements are not as specific as the asks with regard to the licensing scheme. Again, the wording is fairly straightforward; I am asking the Government to prepare and publish a review on the legislation itself. In doing so, ministers would again be required to prepare and publish a report and lay it before Parliament for discussion. More important, in carrying out the review, ministers should

“consult such persons as they consider appropriate.”

In previous amendments, I have tried to outline the people whom I think should be consulted, but they were rejected by the Government, which is fine. I hope that this amendment is more helpful in that respect.

In my view, the timescales are reasonable; the review period is

“no later than 3 years after the commencement”

of the act and

“at least once ... every ... 3 years thereafter.”

That will ensure a cross-parliamentary session review of the legislation. If the Government has a problem with the timescales, I am very happy to work with it on changing them.

Post-legislative scrutiny and review is an important concept and accepted practice. I therefore welcome and support amendments 56 and 57, lodged by Collette Stevenson, which also impose a requirement on ministers to report on how effective the legislation has been. However, amendment 90 itself goes further by seeking a review of the licensing scheme, which would be additional to post-legislative scrutiny, and I hope that members will carefully consider, debate and support it.

I move amendment 90.

Can I have clarification of the difference between withdrawing and not moving an amendment?

I thank members for their contributions. From the outset, I have been happy to support Collette Stevenson’s approach to a review of the legislation’s operation. Her amendment is probably worded better than mine—perhaps she had assistance from people who draft amendments better than I do. Because I am happy to support her approach, I will not move amendment 129, which does the same thing as amendment 56.

However, amendment 90 is a different matter. Rona Mackay said that the fee cannot be reviewed retrospectively, but the whole point is that I want it to be reviewed retrospectively. At the moment, it is unclear from the proposal for reviewing the legislation that there will be a specific review of the fee; whether it has been effective or has led to a lack of uptake in the scheme; and whether that has led to a black market or has had unintended consequences, as I propose it will. The committee discussed those possibilities at stage 1.

Pauline McNeill was right to say that there are still concerns and issues. What is key is that we think about the number of people who currently purchase fireworks each year, which is estimated at around 250,000, with each person probably making multiple purchases. We have a rough idea of usage, so what we are looking from the Government is a commitment to looking at how many licences are issued annually. We will not know what, when and how much people purchase, for all the reasons that we debated last week, but if it transpires that only a low number has been issued, that clearly raises an issue.

Last week, we had a wide-ranging discussion about the fee amount. Although we do not want to set the fee amount in the bill, it is important that the Government does some work to identify whether the fee is putting people off acquiring a licence. The point of the licence is that people need to take the training certification course to get it, which we all think will be useful in improving firework use and safety.

I will, in one second.

We want to encourage people to take up the licence. I am simply asking the Government to review the scheme itself, because it might become apparent that, for whatever reason, it is not working. That is what makes amendment 90 different from amendment 129, which takes a much more general approach to, for example, some of the statistics and data around crime and so on.

I look for a commitment from the minister that she will be forthcoming and transparent with the data about crime that we have struggled to get throughout this process. As a result, we should carry out an annual review of prosecution rates, the maximum fines received and the number of people prosecuted not just under this legislation but under all fireworks-related legislation and that information should come either to the committee or the Parliament. Ideally, that would happen on an annual basis—although that has not been proposed in the wording with regard to the review, as I would have liked—and it would mean that we could have a sensible conversation about whether this bill and other legislation are being used to their full extent and properly. The numbers speak for themselves, and existing legislation is clearly not being used to its full capacity.

I will now take your intervention, Ms Mackay.

That is why I said that it is arbitrary.

There are different types of retailer, and they interact with consumers in very different ways. This is not about compensation—that is an entirely different conversation. By talking about compensation, the minister has essentially concluded that she is shutting down the industry; otherwise there would not be a need for compensation.

It is clear from the retailers in question that they are trying to protect small, family-run businesses—it is human nature to do so—but their relationship with their consumers is very different from the relationship that someone who is purchasing online has or someone’s relationship with any large retailer that sells a million other products. Their ability to interact with customers, to make them aware of safety concerns and to recommend products is different. For example, the theme of lower-volume fireworks came up commonly. They specifically are in a very good place to promote and push things, and I think that we would all prefer to see more of that. Those products are widely available. That one-to-one relationship with the consumer will be lost, and no one has really answered that question. The case has not been made clear.

I understand that the Government wants to restrict the use of fireworks but the effect that the specific 37-day restriction on the sale of fireworks will have on people’s behaviour is unclear. I refer to the issues of stockpiling and people looking elsewhere for products outside of that environment. People who do not have a licence and still want to buy fireworks will do it anyway, but if they cannot buy them in a legal setting from a legal retailer who has specialist knowledge of the product, where else will they get them? That is what bothers us and the wider public.

I have put those questions through my amendments and I do not think that they have been answered adequately. I think those questions are justified as we look at the proposed legislation. As is often the case with amendments, however, I feel like I am fighting a futile battle. The numbers on the committee speak for themselves, and none of my amendments will pass, but it is important to make the point.

Amendment 93, by agreement, withdrawn.

Amendments 94 to 96, 2 and 97 not moved.

Section 22 agreed to.

After section 22

Amendment 22 moved—[Ash Regan]—and agreed to.

Section 23—Restriction on days of use of fireworks

My amendments in this group, which is on restrictions on the days of use of fireworks, follow on from the previous group, which was on restrictions on the days of supply. For the benefit of those who have not been following the bill, I note that the number of days of use is greater than the number of days of supply that the Government proposes. In response to previous comments, the minister said that the word “arbitrary” does not appropriately describe the dates, but I will argue to the contrary.

I understand that there is a spectrum of views on the issue that goes from those who do not want fireworks to be used at any point to those who wish for the status quo. At some point, the Government will have to choose a set of dates if its proposal is to restrict the use of fireworks. I have a couple of problems with the 57 days that the Government has chosen, and the first problem is that they might cause confusion. Although I understand the reason why the dates have been chosen, it is unclear why other dates have not been chosen. That is the core of my argument.

It is welcome that the Chinese new year and Diwali are included, which shows sensitivity towards and respect for the communities who use fireworks at those times. I do not challenge that approach. It is the case that fireworks are also used around bonfire night—that used to be the only day when they were used, to be honest—as well as at new year and other celebrations. However, 57 days is quite a lot of days. Some people will argue that ministers might be forced to add to the list, which they will have the power to do.

It is in no way clear why certain religious groups are excluded from the list. I have no idea why Eid and Hanukkah are excluded. I also have no idea why other, secular festivals are excluded. It is not true that fireworks are not used at such festivals. While we were debating the bill, during Ramadan, fireworks were going off during the day to celebrate that period, which is also not included in the list. People of other religions and none might challenge the Government in that regard, and rightly so.

The good intention of the bill is to restrict the use of fireworks, but we are in essence encouraging the use of fireworks on specified dates and we could end up with a scenario in which those dates are added to. It will take only one organisation challenging the bill successfully in court to open up a Pandora’s box of having to add more dates to the restrictive list. I do not have a view on whether there are too many days in the list or not enough. I understand that the Government is seeking to strike a balance. However, we often try to avoid putting lists in bills, because lists are by their nature exclusive and exclusionary.

A specialist fireworks provider who provided a written submission to the committee said:

“There is also the total lack of equality as the bill favours Chinese new year, diwali and discriminates against the Scottish public.”

It made a good point. There is also confusion among the public about dates, because the dates of certain festivals in the annual calendar change. Diwali is one of them. How many members of the wider public know that? How many people will phone the police when they hear fireworks, not knowing that the date is permitted in the current year even though it was not permitted in the previous year and it will not be permitted in future years?

If fireworks go off on a restricted day, how will the police know whether they are part of an organised display that a group or a private individual has paid a company to put on? What is to prevent the Muslim community from paying a company that is exempt from the licensing scheme and the restrictions to put on a display on its behalf? It makes a mockery of the scheme.

When a witness from the Scottish Police Federation gave evidence to us, they summed up another point about the confusion when it comes to the police’s interaction with the legislation. They said that the public

“need to know what is in the legislation”.

They added:

“I have already spoken to people who have told me that fireworks are going to be banned next year, which means that they have got the wrong message. I suggest that we need to get ahead of the game.”—[Official Report, Criminal Justice Committee, 16 March 2022; c 14.]

I do not disagree with that.

Amendment 98 and other amendments in the group, like amendments in the previous group, ask the Government to go away and have a proper think. I ask the Government to think about the dates that it is proposing, to ensure that it is confident that it has consulted everyone who will be affected and to come back with draft regulations and all the other processes that I propose. It is clear that amendment 98 will not be agreed to if I press it. Nonetheless, the questions that I have raised have not been answered. I look forward to hearing what the minister has to say.

I move amendment 98.

If Pauline McNeill moved her amendments, I would have supported them. They are very well drafted, and they make a wider point. If the issue reappears at stage 3, what we need in the bill—although I agree with the minister that being overly prescriptive is probably unhelpful—is a framework for the process of establishing, notifying and so on. We still do not know how people are to apply for a control zone, who will be eligible to apply, and what we will be asking of local authorities.

We have taken away the licensing scheme from local authorities, which is probably quite helpful, given that that is an onerous, resource-heavy task, but we are now asking them to administer control zones. Cities such as Glasgow or Edinburgh, or Lanarkshire and other councils may seek to use that power, perhaps not even willingly but because they are asked to do so by people in the community.

The changes that Ms McNeill asks for are reasonable and could easily appear in the bill. We do not necessarily need to be overly prescriptive about the rules that have to apply, but I am always concerned by the notion that everything will simply appear in guidance. The rules will not only not be in the bill—they will not even be in secondary legislation. How, therefore, do we ensure that there is consistency in the look and feel of the process across local authorities and that the application rules will be fair and equal? How do we ensure that there will not be a postcode lottery and that someone who applies for an exclusion zone in one part of the country will be treated in the same light, fairly and equally, as someone in another part of the country?

It is important that the matter comes back at stage 3 in some shape or another. We can then take a view on it as and when it is presented. However, I support the premise of what Pauline McNeill is trying to achieve.

Initially, there was some confusion in England when zombie knives were added to the list, because there was a perception that the move applied to any form of serrated knife. Indeed, there was confusion among police officers, with some of the unions asking how they would go about enforcing that. For example, a person might have one of these knives at home; although the knife itself might never leave the house, it would now be an offence to have it at all. Under the definition, not only did the knife have to be serrated but it had to be demonstrated that it was to be used for an act of violence or it had to have markings on it.

I thank the minister for lodging amendment 23, which will strengthen the scrutiny process. We will support it.

Amendment 132 is a technical means to an end.

Amendment 133, which is the main amendment, does not say very much, but it is quite important. It states:

“Regulations under subsection (2) may not appoint a day for section 22 to come into force until regulations under section 24 have been laid.”

I am reliably told that that ensures that the compensation scheme will be set up and in place prior to the restrictions on the supply of fireworks. That goes back to our previous conversation about those who will be affected most.

As we know, there are a small number of specialist businesses—around 10—among around 650 known fireworks retailers in Scotland. It is fair to say that the provisions in the bill will have a substantial impact on those businesses—particularly small, family-run businesses, which have been on our high streets and in communities throughout Scotland for years, if not generations. Those are the sorts of businesses that we would expect to see on high streets. It is a given that, if we restrict the sale and supply of fireworks, which we have previously debated, those businesses will suffer immensely. It is virtually impossible to see how they could keep a shop front open and staff all year round when they are unable to sell products. The shop would be nothing more than an information centre for people to come and look at fireworks that they cannot buy. I cannot see that being feasible, and the committee has to be honest about that. We would be shutting those businesses down, so it is welcome that the Government has suggested that there might be some form of compensation.

The stage 1 report went into that issue in great detail. It said:

“the Scottish Government must commence work with the fireworks retail industry as soon as the Bill is enacted, and before the relevant provisions of Part 3 comes into force, so as to lay the groundwork for a mechanism by which those retailers can assess the likely impact to their business and seek compensation.”

Someone from one of the businesses that will be having their doors closed as a result of the legislation said to us that the policy will

“put me and other firework stores out of business.”

That is not something that we should take lightly. He went on to say:

“The public will buy online or drive down to England. This will be impossible to police.”

We have debated those points in great detail, and I am concerned that that is his view. I am concerned not just that he is losing his business, but about the effect that the policy might have on where people will go to get fireworks if he is unable to sell to them.

We have to understand that those hard-earned family businesses are people’s real livelihoods and that they have probably already suffered over the past couple of years, as many in the retail sector have. Those people are about to lose their livelihoods, and they will struggle.

The compensation process must be robust, transparent and well thought through. The Government will need to be clear about how people will be compensated, for how long, and under what metrics compensation will be given. It will need to be clear about how the amount of financial compensation will be estimated and what scrutiny will be given in that regard. Will there be a one-off payment? Will there be an annual payment? Will the compensation be based on profit, turnover or loss of earnings—or all of those? Will it relate to loss of stock, if stock is destroyed? Will it relate to the closing down of retail, the breaching of licences and leases, and all the things that people do when a Government comes along and shuts their business down?

The Government must be cognisant of all those things. It must act sensitively and respectfully, and it must be willing to put its money where its mouth is. If the Government introduces a law that shuts down an industry, it should be willing to accept the consequences of doing so.