Safe and considerate use of fireworks: BRIA

Final Business And Regulatory Impact Assessment

Title of Proposal

Promoting the Safe and Considerate Use of Fireworks in Scotland

Purpose and Intended Effect

1. Background

1.1 Following high profile incidents targeting emergency service workers during bonfire night in 2017, and again in 2018, the Scottish Government undertook work to look at the position of fireworks in Scotland, including: a review of police and fire service activity linked to fireworks and bonfire night by Her Majesty's Inspectorate of Constabulary in Scotland and Her Majesty's Fire Service Inspectorate for Scotland; and a programme of public consultation, stakeholder engagement and evidence gathering on the sale and use of fireworks in Scotland to identify what action was required going forward.

1.2 A ‘consultation on fireworks in Scotland: Your experiences, your ideas, your views’ launched on Sunday 3 February 2019 for a period of 14 weeks to its close on Monday 13 May 2019 was designed to start a conversation with the people of Scotland on how fireworks are sold and used. The consultation was an important step in gathering valuable evidence on a range of opinions and perspectives and covered organised displays, private use by individuals, and inappropriate use.

1.3 Over the consultation period 29 engagement events were held – 24 open public events, and five events for specific population groups including young people. A total of 16,420 responses were received from members of the public and stakeholder organisations.

1.4 In October 2019 the Minister for Community Safety published the Fireworks Action Plan which set out how the Scottish Government would address the concerns expressed through the national consultation. The Action Plan sets out activities that have been taken forward immediately, as well as longer term actions that will collectively support a change in how fireworks are used in Scotland. The Action Plan can be split into two parts: the Fireworks Review Group; and the non-legislative actions that sit alongside it.

1.5 The Fireworks Review Group was tasked with considering the options available to tighten legislation on fireworks in Scotland. The Group considered the evidence available and made a series of recommendations to the Scottish Government. The report from the Group is available online, and recommends that a fundamental shift is needed in how fireworks can be accessed and used by the general public. The recommendations require both secondary and primary legislation in order to be implemented.

2. Objectives

2.1 The Fireworks Review Group concluded that significant change is needed in how fireworks are used and accessed in Scotland. The changes that are being progressed through secondary legislation are: restricting the times of day that fireworks can be sold; restricting the volume of fireworks that can be sold; and restricting the time of day that fireworks can be set off.

2.2 The policy objectives underpinning the Fireworks Action Plan have been developed using a behaviour change framework (ISM) to ensure substantive and long lasting change in relation to how fireworks are used in Scotland. Relevant data and evidence from a variety of sources, including from the emergency services and the fireworks industry, as well as specific analytical work and international case studies have also informed the policy objectives.

3. Rationale for Government Intervention

3.1 People should be, and feel, safe in their communities. This ambition is embedded through our National Performance Framework, and our Justice Vision for Scotland. The Action Plan supports the Scottish Government National Outcome of We live in communities that are inclusive, empowered, resilient and safe and sets out a range of outcomes for fireworks to support this including:

• Organised displays provide the opportunity to bring communities together.
• Fireworks are used safely and handled with care.
• Fireworks do not cause harm, distress or serious injury.

3.2 Responses to the public consultation indicated that the use, and often dangerous misuse, of fireworks in communities can make people feel unsafe.

3.3 Achieving a cultural shift in the relationship Scotland has with fireworks will take time and will require a concentrated package of action by various partners. This includes progressing legislation to implement changes to regulations, as well as actions such as partnership working within communities to improve awareness and understanding on the appropriate use of fireworks, to positively influence responsible behaviour, and to support communities to have greater control in how fireworks are used in their local area.

4. Existing Fireworks Regulations

4.1 Fireworks in Scotland are controlled by legislation that covers a wide range of areas, and this presents a picture that combines areas of reserved and devolved regulations and legislative competency.

4.2 For most of the year, fireworks can only be sold by licenced traders. Licencing the sale of fireworks is done by local authorities, and traders have to meet set criteria to receive a licence.

4.3 In the run up to New Year, Chinese New Year and Diwali, and the three weeks before Bonfire Night, traders registered with their local authority to store fireworks do not require a specific sales licence. Instead they are required to register with the relevant local authority. Local authorities have no powers to refuse registration at these times.

4.4 It is illegal to sell outdoor fireworks to anyone who is less than 18 years old. It is illegal to sell indoor fireworks (such as sparklers) to anyone who is less than 16 years old. Fireworks which make a noise of over 120 decibels when they are set off, or fireworks that require specialist knowledge to use safely, cannot be sold to the general public at any time. Fireworks associated with antisocial behaviour such as bangers, air bombs and jumping jacks are also banned.

4.5 There are existing restrictions in place on when fireworks can be used. During most of the year, fireworks can only be used between 7am and 11pm. On 5^th November, fireworks can be used until midnight, and on the nights of Chinese New Year, Diwali and New Year’s Eve, fireworks can be used until 1am. It is for each local authority to decide if it wishes to licence public firework displays under its individual Public Entertainment Licencing regime.

4.6 It is a criminal offence for anyone to throw, cast or fire any fireworks in or into any road or public place and this is enforced by Police Scotland.

4.7 The Minister for Community Safety, Ash Denham MSP, has kept the UK Minister for Small Business, Consumers and Corporate Responsibility updated as fireworks policy and practice has developed in Scotland. The UK Government has confirmed there are no plans to make changes to the legislation at present. The Minister has also engaged with the Minister for Environment, Energy and Rural Affairs in the Welsh Government throughout this work.

Consultation

5. Within Government

5.1 A number of Units and Divisions within the Scottish Government have been consulted at various stages throughout this work. This includes:

• Justice Analytical Services
• Community Safety Unit (Pyrotechnics and Anti-social Behaviour)
• Fire and Rescue Unit
• Ambulance and Emergency Workers
• Police Division
• Equalities Unit
• Mental Health
• Consumer Protection
• Dementia and Autism
• Public Events Licensing
• Environmental Quality

6. Enforcement Agencies

6.1 The existing regulations and proposed changes to legislation require enforcement and will impact on agencies with responsibility for enforcement. This includes Police Scotland and Society of Chief Officers for Trading Standards in Scotland (SCOTSS), who have been consulted throughout this work and both had representation on the Fireworks Review Group.

6.2 Government and Enforcement Agencies have also been consulted via the Fireworks Review Group and other methods including the public consultation and one to one meetings. This includes:

• SCOTSS
• Scottish Community Safety Network
• COSLA
• Society of Local Authority Lawyers and Administrators in Scotland
• Police Scotland
• Scottish Fire and Rescue Service

7. Local Authorities and Representative Bodies

7.1 Thirteen local authorities responded to the public consultation. Local authorities have also been engaged through online surveys circulated to licensing officers and Trading Standards officers.

7.2 Representative bodies for local authorities have been engaged throughout this work. This includes COSLA, the Scottish Community Safety Network and the Society of Local Authority Lawyers and Administrators in Scotland, which were represented on the Fireworks Review Group. A separate meeting between the Chair of the Review Group and the Chief Executive of COSLA took place on 14 February 2020.

8. Emergency and Health Services

8.1 Other emergency services and health services are key stakeholders and are impacted by the use of fireworks. This includes the increased resource required at certain times of year to respond to firework related incidents. The Scottish Fire and Rescue Service, NHS Scotland, Care of Burns in Scotland and the Scottish Ambulance Service were all represented on the Firework Review Group and contributed towards the development of the recommendations to emerge from the Group.

9. Public Consultation – Headline Findings

9.1 The consultation demonstrated strong support for a change in how fireworks are sold and used in Scotland:

• Almost all of those who responded to the consultation (94%) said they would welcome increased controls on the sale of fireworks.
• Over three-quarters of those who responded to the consultation (87%) said they would welcome a ban on the sale of fireworks.
• Most of those who responded to the consultation (92%) felt there should be more control on how they can be used.

9.2 This message is backed up by findings from a nationally representative opinion poll that provides findings representative of people across Scotland:

• A majority of adults in Scotland (71%) feel there should be more controls over the sale of fireworks.
• Over half of adults in Scotland (58%) would support a ban on the sale of fireworks.
• A majority of adults in Scotland (68%) feel there should be more control on how fireworks can be used in Scotland.

10. Business

10.1 The Scottish Government has actively engaged with and sought views from key stakeholders as part of this work. Details of the public consultation and how to respond were shared with a number of business federations and representative organisations to ensure they had the opportunity to share their views. This included:

• Business in the Community Scotland
• The Federation of Small Businesses Scotland
• The Forum of Private Business
• The Scottish Business Resilience Centre
• Scottish Enterprise
• Scottish Grocers Federation

10.2 Eight formal responses from businesses were received to the public consultation. This included from firework specific retailers, retailers that sell fireworks at certain times of year and events management organisations.

10.3 Sustained engagement with the firework industry, through the British Firework Association^[1] and British Pyrotechnists Association^[2], has been undertaken throughout this work. This is in addition to their input and influence as members of the Fireworks Review Group and has ensured that their concerns are fully captured and considered, with a section of the Review Group’s final report focussing on Unintended Consequences of proposed changes. This ongoing engagement has ensured that these organisations and their members’ views and concerns have been fully considered in progressing this work, however it has been clear that the BFA was not supportive of the proposed changes, and that remains the case.

10.4 In October 2019, the Minister for Community Safety hosted a roundtable discussion with key stakeholders to discuss the findings and share ideas on potential ways forward. The roundtable included representatives from the emergency services, the Scottish Society for the Protection of Animals, Local Authority Licencing, Trading Standards and Community Safety representatives, the National Health Service and the firework industry.

10.5 21CC, a pyrotechnics and events management company, attended a meeting of the Firework Review Group on 16 January 2020. 21CC took part in an options appraisal exercise with the Review Group, which informed the development of the recommendations to come from the Group. A separate meeting also took place with 21CC, the Chair of the Review Group and Scottish Government officials on 14 February 2020 where their views and concerns were discussed in detail.

Options

11. Options Considered for Change

11.1 Options have been developed taking into consideration a range of evidence including responses to the public consultation and the recommendations of the Fireworks Review Group.

• Option 1 – Do Nothing: no non-legislative or regulatory actions to change the way fireworks are accessed and used in Scotland are progressed.
• Option 2 – Progress Only Non-Legislative Actions: no legislative change is progressed and implemented, only non-legislative actions such as awareness raising campaigns and education are taken forward for 2021.
• Option 3 – Progress secondary legislation for relevant recommendations: Non-legislative actions are taken forward as well as secondary legislation being progressed immediately to allow legislative change to be in place for some recommendations for bonfire season 2021. These recommendations are:
  • Amending the times of day that fireworks can be sold
  • Amending the volume of fireworks that can be sold
  • Amending the time of day that fireworks can be set off

Sectors and Groups Affected

12. People and Communities

12.1 Actions that will support the safe and considerate use of fireworks in Scotland will aim to protect people from harm, fear and distress. This includes addressing issues that were raised in the public consultation such as reducing the noise and disturbance of fireworks, including on those with noise sensitivity; preventing anti-social behaviour and the misuse of fireworks and the impact this has on individuals and communities; environmental impacts of fireworks use from discarded material to air pollution and animal welfare concerns for pets, wildlife and livestock. The policy will also affect the ability of community groups to put on local displays where professional firework organisers or operators are not involved in the organisation and running of the display. Data from the Society of Local Authority Lawyers and Administrators (SOLAR) Licensing Group^[3] in February 2020 highlighted that around 150 organised displays take place over the Bonfire period across the 17 local authorities who responded. The majority of these have less than 500 attendees and are organised by a community group or organisation.

13. Retailers

13.1 Data provided by Trading Standards covering the bonfire period 2019 indicated that there were 650 licensed retailers selling fireworks across Scotland. A more detailed survey was carried out in 2020 with all local authority Trading Standards to explore the number and type of storage licences as well as site visits and enforcement activity that took place over the 2019 period. Eighteen^[4] local authority areas responded to the survey. Survey responses indicated that, across the 18 local authorities, the majority of retailers are licensed to store fireworks on a multi-year basis^[5], and there were 255 retailers who held a multi-year storage licence in 2019. Local authorities were also asked the types of retailers that applied for a temporary storage licence in their area in 2019. The majority of applications (70%) were for large supermarkets and superstores (190), followed by 18% for smaller independent stores (48), 9% for ‘pop up’ shops (23) and 3% for firework specific stores (8).

13.2 In October 2018 Sainsbury’s announced that it would no longer be selling fireworks to the public, but did not explain its reasons for doing so. However, in the media the move was widely received as a socially responsible effort by the supermarket.

14. Firework Industry

14.1 The firework industry are a group that could be affected by the proposed changes and the BFA has been clear they do not support the proposed changes. Data from the BFA in relation to the retail sales of fireworks suggests that the equivalent of 334 people are employed in the retail of consumer fireworks in Scotland. This comprises: 25 people being directly employed in wholesale of fireworks; 40 seasonal employees in wholesale; 19 seasonal employees in delivery of fireworks; and 251 seasonal employees within the retail of fireworks. These figures have been estimated by the BFA through a series of calculations such as using the percentage of the overall UK employment and the percentage of product which goes into the UK to calculate how many people are directly employed in wholesale. Whilst this can provide an estimate it does not give a full, comprehensive picture of the number of people employed in retail fireworks in Scotland.

14.2. In addition, the BFA estimate that employment in retail fireworks accounts for almost £1.9 million per year and that government revenue from retail fireworks in Scotland equals almost £2.7 million^[6].

14.3. A short questionnaire was circulated to the Society of Local Authority Lawyers and Administrators (SOLAR) Licensing Group^[7] in February 2020 highlighted 152 organised displays that take place across Scotland over the Bonfire period with the majority (72) having 0-500 attendees. These took place across 17 local authorities. There were 48 displays with 501-2000 attendees in 15 local authorities. Only 19 displays highlighted as having 2001-5000 attendees and 13 displays with 5001 or more. Most local authorities indicated that they have between 1-5 large and small scale displays in their area, with much fewer having between 6-10 and only one indicating they have over 10 (small scale). The majority of those displays (113) were organised by a community group or organisation, with only 11 local authority organised displays happening across 7 local authorities.

15. Consumers

15.1 It is recognised that the proposed changes will impact on consumers. This is particularly relevant to proposed measures such as narrowing the times of day that fireworks can be sold and the volume (kg) that can be purchased in one transaction. Introducing these measures will ensure consumers will treat the purchase of fireworks as a well thought out and considered transaction, rather than a spontaneous act, and still provide consumers with the opportunity to purchase a responsible amount of firework products at appropriate times.

16. Emergency Services

16.1 In recent years, there has been a number of attacks on emergency services. Between 2013-14 and 2019-20, there has been a 12% increase in the number of assaults on police officers during the firework period. Additional resourcing of emergency services, local authorities and the NHS in preparing for and responding to the bonfire season is also required, as well as the Ambulance Service and NHS dealing with firework injuries to the public. Introducing these changes may lead to varying impacts on the emergency services in the short term. For example, restricting the times of day fireworks can be used may lead to increased reports of use outwith permitted times, however not enabling fireworks to be sold to consumers during the busiest time for the emergency services dealing with incidents is likely to have a positive effect. There will be a balance until the long term outcomes for the changes are achieved as they are embedded in practice and public behaviour develops to comply with the changes.

17. Benefits and Costs

17.1 Option 1: Benefits

• Consumers and retailers understand existing regulations and change could complicate this with people inadvertently not complying with new regulations.
• No requirement for enforcement agencies to amend and update their processes.

Option 1: Costs

• Demonstrates lack of action on the strong voice for change to emerge from the national public consultation and representative opinion poll; and in the work of the Firework Review Group. It was clear that the status quo was not acceptable.
• Damage to public confidence and reputation of the Scottish Government. The Minister for Community Safety publicly welcomed and endorsed the recommendations from the Firework Review Group on 3 November.
• Damage to relationships with key stakeholder organisations, emergency services and animal welfare charities, who have contributed to and endorsed the recommendations of the Firework Review Group.
• No improvement to outcomes – noise, disturbance, attacks, injuries.

17.2 Option 2: Benefits

• National public awareness raising campaigns in previous years have been successful and positively received, and along with preventative work in communities, has improved local community safety processes.
• Demonstrates action towards addressing the concerns and strong voice for change to come from the consultation, and meeting SG outcomes.

Option 2: Costs

• The total cost of national public awareness raising campaigns in 2020 was £54,228.
• Could be perceived as a lack of action to address issues raised through the public consultation, and in the work of the Firework Review Group.
• Damage to public confidence and reputation of the Scottish Government. The Minister for Community Safety publicly welcomed and endorsed the recommendations from the Firework Review Group on 3 November but no action has been taken to progress them.

17.3 Option 3: Benefits

• Positive action has been taken to address issues raised through the public consultation and opinion poll.
• Tangible legislative change is in place for bonfire season 2021, leading to improved public and community safety and wellbeing.
• Uphold public confidence and reputation of the Scottish Government. The Minister for Community Safety publicly welcomed and endorsed the recommendations from the Firework Review Group on 3 November.

Option 3: Costs

• Potential negative impact on retailers of consumer fireworks if measures lead to reduction in sales.
• The total cost of national public awareness raising campaigns in 2020 was £54,228.

18. Scottish Firms Impact Test

18.1 The 2 main groups who will be impacted by the proposed regulations are retailers that sell consumer fireworks all year round and retailers that sell consumer fireworks temporarily at certain times of the year. Professional firework/pyrotechnic display companies may be affected, but to a lesser extent as their core business is not the sale of consumer fireworks. There are, however, some professional display companies that also sell consumer fireworks as part of their business and may be affected by any changes. However it is anticipated that these changes may lead to an increase in organised displays which could impact these businesses positively.

18.2 The two main representative bodies for the firework industry in the UK, the British Fireworks Association and the British Pyrotechnists Association, have been engaged throughout this work with their views and concerns fully considered as the proposed regulations have been developed.

18.3 It is estimated that there are under 10 firework specific retailers who are licensed all year round to sell fireworks in Scotland, with only one Scottish company involved in the importation of fireworks. The majority of retailers that sell fireworks at specific times of the year are licensed on a temporary basis by the relevant local authority. Trading Standards data indicated that, in 2019, 650 retailers were licensed to sell fireworks and the majority of these retailers were supermarkets or superstores (see section 11.1 for more detail on this data). However, the proposed regulations do not prohibit firework sales entirely and only narrow the window in which they can be sold. The local licensing processes in place across Scotland, administered by local authorities, which grant retailers permission to temporarily sell fireworks at certain times of the year will not be altered or impacted by the proposed regulations.

18.4 Eight businesses responded to the public consultation. This included firework retailers, wider retailers and professional display companies, with most requesting that their name is not published with the response. The majority of businesses that responded to the consultation were not supportive of further controls being introduced on the sale or use of fireworks. The most common reasons for this were that existing legislation should be enforced and that increased controls would negatively impact safe and responsible firework users, rather than the minority who seek to cause harm or disruption. One business was supportive of increased controls however, and suggested measures such as conditions at the point of sale as a possible option for change.

19. Competition Assessment

19.1 It is not considered that the proposed legislative changes will impact on competition in the fireworks market. The proposed legislation will not make it more difficult for a new retailer to enter the firework sales market. The licenses required to sell fireworks are administered and granted at a local level and will not be altered or impacted by these changes.

19.2 It is also not considered that the proposed regulations will impact on the competitiveness of Scottish based firms. The proposed regulations in relation to the supply of fireworks outside permitted hours and in excess of permitted quantity will apply equally to retailers based in and outside of Scotland if any part of the supply – including the physical transfer of fireworks to consumers - takes place in Scotland. And, in line with the powers available to Scottish Ministers through the Fireworks Act 2003, the proposed regulations will not limit the ability of retailers in Scotland to supply customers outside Scotland

20. Consumer Assessment

20.1 The impact the proposed regulations will have on consumers has been considered. Amending the times that fireworks can be sold will narrow the window that they can be purchased, meaning that fireworks cannot be sold later in the evening. This will reduce the likelihood of spontaneous evening purchases when emergency service incidents are at their highest and encourage consumers to plan when they will be purchasing and using fireworks.

20.2 Reducing the volume of fireworks that can be purchased is a matter of public safety. The proposed regulations will mean that the maximum amount (kg) of explosive content that can be purchased will be significantly less than is currently permitted. This will mean that untrained members of the public can only purchase a reasonable amount of fireworks in one transaction, which will improve outcomes in relation to disturbance, noise and injuries due to fireworks.

21. Test Run of Business Forms

21.1 There are no new business forms proposed.

22. Digital Impact Test

22.1 It is not considered that these changes will have an impact on advances in technology. Fireworks can however be purchased online, which is a complicated landscape. There is a clear distinction between legitimate online sales, where the product meets UK product safety standards and the carrier carries out required age checks upon delivery, and unregulated online sales. Unregulated online sales includes imports from other countries where that product meets local safety standards but not those in the UK, as well as illegal fireworks which are completely unregulated. Some consumers may not be aware that they are purchasing products that do not meet required safety standards in the UK, whereas others may actively seek products (such as bangers) which are illegal in the UK. Online sales are an area which will continue to be monitored as this work continues to progress.

23. Legal Aid Impact Test

23.1 It is not anticipated that the proposed regulations will give rise to legal challenge, increased use of legal processes or impact the legal aid fund.

24. Enforcement, Sanctions and Monitoring

24.1 There are existing and long established enforcement and monitoring processes in place, with appropriate sanctions issued where non-compliance is identified, due to existing firework regulations in Scotland.

24.2 COSLA, Local Authority licensing officials and Police Scotland have been engaged and represented on the Fireworks Review Group and directly fed into recommending the proposed changes. Engagement will continue as the proposed regulations are put into practice and existing processes are adapted accordingly.

25. Implementation and Delivery Plan

25.1 Developing the proposed legislation has been informed by the recommendations of the Fireworks Review Group. The Fireworks Review Group came to the conclusion that a fundamental shift is required in how fireworks are used and accessed in Scotland.

25.2 Implementation and enforcement will involve local authorities Trading Standards officers, Police Scotland and COSLA, as a representative body for local authorities. Existing processes will require to be adapted to take into account the changes to regulation that this proposed legislation will bring. The Scottish Government will continue to engage with all enforcement agencies as the proposed regulations are put into practice.

26. Post-Implementation Review

26.1 Building Safer Communities will undertake a review in 3-5 years of the SSI coming in to affect to check that requirements are being met and that the regulations are working effectively.

27. Summary and Recommendation

27.1 Fireworks are already a regulated and controlled product. However despite these regulations, there are consistently issues with the way they are used in Scotland, both legitimately and misused. This includes attacks on emergency workers, anti-social behaviour and the negative impact that fireworks have on some groups of the population, communities and animals.

27.2 A strong public appetite for significant change came from the national consultation. It was clear the status quo in how consumer fireworks are accessed and used was not considered acceptable by the vast majority of respondents. The Fireworks Review Group has also considered all of the evidence available and reached consensus that a fundamental shift is required in how fireworks are accessed and used in Scotland through the introduction of a comprehensive set of measures.

27.3 Therefore, Option 3 is recommended to implement comprehensive change by combining both non-legislative actions and introducing legislation to tighten regulations around fireworks. This package of measures will support the long term, cultural shift that is required in how fireworks are access and used in Scotland.

27.4 In furtherance of this option The Fireworks (Scotland) Amendment Regulations 2021 (SSI 2021/14) were laid, however following further engagement with the British Pyrotechnists Association, it was noted that these regulations did not reflect the intention of Ministers to provide an exemption for use outwith permitted hours (between 7am and 6pm) to:

• firework businesses and professional operators, as well as community groups, to use fireworks for the purpose of a public, organised display;
• businesses involved in the supply of fireworks in connection with that business; and
• Regulatory authorities in exercise of their powers or duties in connection with the regulation or use of fireworks.

27.5 Accordingly, the Fireworks (Scotland) Miscellaneous Amendments Regulations 2021 have been made in furtherance of option 3 and it is to these regulations that this impact assessment relates. These regulations take forward the legislative package of measures discussed above and further revoke The Fireworks (Scotland) Amendment Regulations 2021.

27.6 The regulations in relation to the supply of fireworks outside permitted hours and in excess of permitted quantity do not apply to Scottish based firms in instances where they supply fireworks to consumers outside of Scotland. The Fireworks (Scotland) Miscellaneous Amendments Regulations 2021 include an exemption to make this clear.

Declaration and Publication

I have read the Business and Regulatory Impact Assessment and I am satisfied that (a) it represents a fair and reasonable view of the expected costs, benefits and impact of the policy, and (b) that the benefits justify the costs I am satisfied that business impact has been assessed with the support of businesses in Scotland.

Minister for Community Safety

Signed: Ash Denham
Date: 17/02/2021