Fireworks and Pyrotechnics Articles (Scotland) Bill: business and regulatory impact assessment

4. Existing Legislation – Fireworks and Pyrotechnic Articles

Fireworks

Categorisation and control of firework supply

4.1 Fireworks are categorised in schedule 1 of the Pyrotechnic Articles (Safety) Regulations 2015:

• Category F1: fireworks which present a very low hazard and negligible noise level and which are intended for use in confined areas, including fireworks which are intended for use inside domestic buildings.
• Category F2: fireworks which present a low hazard and low noise level and which are intended for outdoor use in confined areas.
• Category F3: fireworks which present a medium hazard, which are intended for outdoor use in large open areas and whose noise level is not harmful to human health.
• Category F4: fireworks which present a high hazard, which are intended for use only by persons with specialist knowledge and whose noise level is not harmful to human health.

4.2 The online sales of fireworks are regulated by Trading Standards^[1] in the same way as conventional sales. All supplies of fireworks, irrespective of the medium of the supply, are governed by the relevant legislation. However, the nature of online sales can make enforcement challenging.

Supply of Fireworks

4.3 The sale, possession and use of fireworks is regulated by the Fireworks Act 2003, the Fireworks Regulations 2004, the Fireworks (Scotland) Regulations 2004 and the Pyrotechnic Articles (Safety) Regulations 2015. On 30 June 2021, The Fireworks (Scotland) Miscellaneous Amendments Regulations 2021 came into force which amended the Fireworks (Scotland) Regulations 2004 to introduce new measures on how fireworks can be supplied to and used by the general public.

4.4 In addition, Regulation 9 of the Explosives Regulations 2014 prohibits the supply or acquisition of more than 50kg of fireworks at a time, except to individuals licensed by the Local Authority. However, regulation 3B of the Fireworks (Scotland) Regulations 2004 places further restrictions on the 'general public' by prohibiting the supply or acquisition of more than 5kg of fireworks at a time, except to individuals licensed by the Local Authority, professional firework operators/organisers, firework businesses and community groups.

4.5 Regulation 9 of the Fireworks Regulations 2004 limits the sale and supply of fireworks to seasonal periods unless a retailer is licensed. A licence is issued by a local authority, subject to strict criteria. Periods where selling without a licence is permitted are:

• November 5 (from 15th October to 10th November)
• New Year (from December 26th to 31st)
• Chinese New Year (on the first day of the Chinese New Year and the 3 days immediately preceding it)
• Diwali (on the day of Diwali and the 3 days immediately preceding it)

4.6 Furthermore, regulation 3A of the Fireworks (Scotland) Regulations 2004 restricts the times of day fireworks can be supplied to the general public to during the daytime hours of between 7am and 6pm, with exemptions for professional firework operators/organisers, firework businesses and community groups.

4.7 Under regulations 31 and 32 of the Pyrotechnic Articles (Safety) Regulations 2015, a retailer must not sell:

• A Christmas cracker to anyone under the age of 12 years.
• F1 category fireworks to anyone under the age of 16.
• F2 and F3 category fireworks to anyone under the age of 18.
• F4 category fireworks to members of the public.

4.8 It is not a legal requirement to have a licence or training to buy "consumer fireworks" (category F1, F2 and F3 fireworks). There is no such thing as a licence or training for members of the public to buy category 4 (professional display) fireworks. These are only available to people with specialist knowledge which includes a requirement to have undertaken training recognised in the fireworks business or industry, have used the category of article before, and hold valid liability insurance for the article in question^[2].

Enforcement

4.9 Trading Standards can carry out test purchasing for underage sales in line with identified concerns where there is sufficient intelligence relating to specific premises. In doing so they must consider and, if appropriate, abide by the statutory framework set out in the Regulation of Investigatory Powers (Scotland) Act 2000 and its associated Codes of Practice.

Use of fireworks

4.10 Under regulation 3 of the Fireworks (Scotland) Regulations 2004 the use of fireworks by the general public is permitted between 6pm and 11pm, although this is extended to midnight on 5 November and 1am during Chinese New Year, Diwali and New Year's Eve. These restrictions do not apply to public fireworks displays held by professional firework operators/organisers; firework businesses; community groups; and local authorities for the purpose of local authority firework displays, national public celebrations or national commemorative events.

4.11 Enforcement of any contravention of the rules restricting the use of fireworks is a matter for the Police and offences are punishable by a fine or up to six months imprisonment.

Noise and misuse

4.12 Excessive and persistent noise from fireworks could potentially constitute a "statutory nuisance" under the Environmental Protection Act 1990. Local Authorities are responsible for addressing such nuisances by issuing an abatement notice. Noise may also be addressed as a common law nuisance.

4.13 It is an offence under section 80 of the Explosives Act 1875 to let off fireworks in a public place. The offence is punishable by a fine. Offenders could also be charged with breach of peace.

4.14 The common law offence of Culpable and Reckless Conduct is relevant where a person has set off a pyrotechnic article in circumstances where risk is involved. No expert evidence is required in this instance. In all crimes involving reckless conduct, the degree of recklessness required to constitute the crime is an 'utter disregard of what the consequences of the act in question may be so far as the public are concerned'.

Public firework displays

4.15 It is for each local authority to decide if it wishes to license public firework displays under its Public Entertainment Licensing regime. The coverage of the regime is set out in section 41 of the Civic Government (Scotland) Act 1982, and relies on the use of premises as a "place of public entertainment" for the requirement of a Public Entertainment Licence. This means any place where "members of the public are admitted or may use any facilities for the purposes of entertainment or recreation".

4.16 As a discretionary regime the local authority can limit the scope by resolution, so they can decide whether or not to license certain public events. Private displays do not fall within the remit of the provision in the 1982 Act regarding fireworks displays.

Stop and search powers for fireworks

4.17 The Fireworks Act 2003 enables the police to search if they have reasonable grounds of suspecting a person is in possession of fireworks in contravention of a prohibition imposed by firework regulations. The current prohibitions imposed by fireworks regulations are:

• It is unlawful for someone under the age of 18 to possess an F2 or F3 firework in a public place.
• It is unlawful for a member of the public to possess a category F4 firework.
• It is unlawful to use F2 or F3 fireworks after 11pm and before 6pm, extended to after midnight on 5 November and after 1am following New Year's Eve, Chinese New Year and Diwali.
• It is unlawful to supply F2 and F3 fireworks outside permitted hours (7am – 6pm).
• It is unlawful to supply more than the permitted quantity of 5kg of fireworks at any one time.

4.18 Breaching any of the above regulations is an offence under section 11 of the Fireworks Act 2003. If the police have reasonable grounds to suspect that a person possesses a firework in contravention of any prohibition on possession of a firework they may search that person.

4.19 The Minister for Community Safety has kept the UK Government's Minister for Small Business, Consumers and Corporate Responsibility updated as fireworks policy and practice has developed in Scotland. The UK Government has confirmed it has no plans to make changes to the UK legislation at present and in a formal response, published in March 2020, to the House of Commons Petitions Committee report on fireworks, it did not set out any plans to introduce new firework legislation. The Minister for Community Safety has also engaged with the Minister for Environment, Energy and Rural Affairs in the Welsh Government throughout this work.

Pyrotechnic articles

Possession of a pyrotechnic article at sporting events.

4.20 Possession of some pyrotechnic articles and fireworks in a sports ground is an offence under the Criminal Law (Consolidation) (Scotland) Act 1995. The 1995 Act also provides the power for the police to search a person they have reasonable grounds to suspect is committing or has committed an offence. The current legislative provisions relate to searches of persons who are entering or attempting to enter designated sporting events.

Carrying dangerous instruments or offensive weapons

4.21 The Criminal Justice and Public Order Act 1994 provides stop and search powers where police reasonably believe that people are carrying dangerous instruments or offensive weapons in any locality without good reason, and a sufficiently senior officer has authorised the use of such powers. However, pyrotechnic articles are not deemed in such instances as "dangerous instruments", which is defined as a sharply pointed instrument or one with a blade, but may be an offensive weapon if that is the use with which it is intended to be used. Anything found that was reasonably suspected to be an offensive weapon would be seized and appropriate charges made. However these powers are used in very specific circumstances and the issue of such authorisations is not commonplace. Such authorisations also last for only a very limited period of time.

4.22 If a person is stopped and searched under legislative powers for a different offence and found to be in possession of a pyrotechnic article, offences under the Explosive Substances Act 1883 could potentially be used for the reporting and prosecution of individuals. Although the provision is intended for serious offences, it could be argued that carrying a pyrotechnic article, which could cause much harm, without a legitimate reason for doing so, is serious.

4.23 Culpable and reckless conduct provides an appropriate charge for those who activate pyrotechnic articles in a situation where there is a safety risk generated by this activation, such as in a crowded public place or sporting venue. Police Scotland have reported that where a pyrotechnic article has not been activated it may be difficult to prove the necessary element of "recklessness" to secure a conviction for culpable and reckless conduct.

4.24 Police Scotland has existing powers (under section 11A of the Fireworks Act 2003) to stop and search a person without warrant if the constable has reasonable grounds for suspecting that the person possesses a firework in contravention of a prohibition imposed by fireworks regulations.