Use and sale of fireworks, and tackling the misuse of pyrotechnics: consultation

Annex A

Technical Annex

This technical annex provides more detail about the current legislation and regulations on the sale, supply and use of fireworks in Scotland. It should be read in conjunction with the main consultation document.

Supply Of Fireworks

Legislative Context

The sale and supply of fireworks is regulated by the Fireworks Regulations 2004 the Fireworks (Scotland) Regulations 2004, and the Pyrotechnic Articles (Safety) Regulations 2015.

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, the Fireworks (Scotland) Regulations 2004 will be amended by the Fireworks (Scotland) Miscellaneous Amendments Regulations 2021, on 30 June 2021, and will place 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. Table 1 gives a more detailed outline of current regulations of the supply of fireworks.

Furthermore, the Fireworks (Scotland) 2004 Regulations will also be amended to restrict the times of day fireworks can be supplied to the general public to during the daytime hours of 7am and 6pm, with exemptions for professional firework operators/organisers, firework businesses and community groups.

Pyrotechnic Articles (Safety) Regulations 2015 make it an offence for F2 and F3 fireworks to be made available on the market to anyone under 18 years.

Under Regulation 9 of the Fireworks Regulations 2004 suppliers of fireworks must hold a licence, except at certain times of a year. Licences are granted by the appropriate local authority, which must refuse a licence unless the applicant complies with relevant statutory requirements concerning the keeping of fireworks and may refuse a licence, or revoke a licence previously granted, if the applicant has committed any of the fireworks related offences listed in paragraph 5 of regulation 9, such as making underage sales, or failing to store fireworks securely.

Enforcement

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.

Categorisation and Control of Firework Supply

The online sales of fireworks are regulated by Trading Standards 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.

Fireworks are categorised as defined by the Pyrotechnic Articles (Safety) Regulations 2015. Table 2 gives an outline of firework categories.

Table 1: Regulation of the Sale and Supply of Fireworks

Regulation 9 of the Fireworks Regulations 2004 (as amended), which came into force on 1 January 2005, limits the sale and supply of fireworks to seasonal periods unless a retailer is licensed. A licence costs up to £500 and 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 10 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)

Under regulation 31 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.

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 bonafide professional fireworks companies with all year insurance and licenced storage.

Regulation 10 of the 2004 Regulations requires retailers to display a notice at point of sale, of A3 size, with text a minimum of 16mm high.

Certain items are banned in the UK, including: bangers, air bombs and jumping jacks, regardless of whether these are CE marked and approved for sale in other EU countries.

Source: House of Commons briefing paper 'Regulation of Fireworks' published November 2018

Table 2: Categories of Firework

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.

Category T1: theatrical pyrotechnic articles which present a low hazard.

Category T2: theatrical pyrotechnic articles which are intended for use only by persons with specialist knowledge.

Category P1: pyrotechnic articles, other than fireworks and theatrical pyrotechnic articles, which present a low hazard.

Category P2: pyrotechnic articles, other than fireworks and theatrical pyrotechnic articles, which are intended for handling or use only by persons with specialist knowledge.

Source: Schedule 1 to The Pyrotechnic Articles (Safety) Regulations 2015

Use Of Fireworks

Restrictions on Use

Regulation 7 of the Fireworks Regulations 2004 concerns the prohibition of use of certain fireworks at night in England and Wales. This regulation does not apply to Scotland but the restrictions are recreated by The Fireworks (Scotland) Regulations 2004 which sets out a curfew on fireworks use from 11pm and 7am with the exception of 5 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. However, the Fireworks (Scotland) Miscellaneous Amendments Regulations 2021 will place greater restrictions on the use of fireworks by the 'general public' to 11pm and 6pm in order to minimise the risk that fireworks will be used with harmful consequences for people, animals or property without limiting public fireworks displays held by professional firework operators/organisers; firework businesses or community groups.

In addition, local authorities are able to grant dispensations to businesses, not including community groups, for displays for special events such as local festivals or celebrations. Local authorities are also exempted for the purpose of local authority fireworks displays, national public celebrations or national commemorative events.

Enforcement of any contravention of the rules restricting 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

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. However, most private fireworks displays will be too short-lived to fall into these categories.

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.

The common law offence of Culpable and Reckless Conduct is relevant where a person has set off a pyrotechnic 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

It is for each local authority to decide if it wishes to licence 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".

As a discretionary regime the local authority can limit the scope by resolution, so they can decide whether or not to licence 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

The Fireworks Act 2003 enables the police to search if they have reasonable grounds of suspecting a person 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 (Regulation 4 of the Fireworks Regulations 2004)
• It is unlawful to possess a category F4 firework (Regulation 5 of the Fireworks Regulations 2004)
• It is unlawful to use F2 or F3 fireworks at night (23.00 – 07.00) (Regulation 3 of the Fireworks (Scotland) Regulations 2004).

From 30 June 2021 the Fireworks (Scotland) Regulations 2004 will be amended by the Fireworks (Scotland) Miscellaneous Amendments Regulations 2021. Therefore, the regulations will be amended to include that:

• It will be unlawful to supply F2 and F3 fireworks outside permitted hours (7am – 6pm).
• It will be unlawful to supply more than the permitted quantity of 5kg of fireworks at any one time.
• It will be unlawful to use adult fireworks outside permitted hours of 6pm – 11pm (with the exception of 5 November when they can be used from 6pm until midnight; New Year's Eve, the night of Chinese New Year and the night of Diwali when they can be used from 6pm until 1am).

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 of the above prohibitions they may search that person.