Annex B Draft Business and Regulatory Impact Assessment
Title of Proposal
Promoting the Safe and Considerate Use of Fireworks in Scotland and
Tackling the Misuse of Pyrotechnics
Purpose and Intended Effect
1.1 Following high profile incidents during bonfire night in 2017, and again in 2018, the Scottish Government undertook work to look at the position of fireworks in Scotland. This included: 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 independent 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 Scottish Ministers in November 2020 (report available online) and reached a majority consensus that a fundamental shift is required in how fireworks are used and accessed in Scotland through the introduction of a comprehensive set of measures.
1.6 Prior to the introduction of Covid restrictions, reports of the misuse of pyrotechnics (flares and smoke bombs) at events across Scotland and in communities had become widespread and there is evidence of them having been set off at large gatherings such as concerts, music festivals, sporting events and at on-street celebrations.
1.7 In May 2019, the Scottish Government began discussions with stakeholders to identify possible actions that could be taken to tackle increased illegal pyrotechnic use and gather evidence to determine where there are gaps in the current legislation.
1.8 The conclusion from these stakeholder discussions was that a new offence is required in relation to carrying a pyrotechnic device in a public place without reasonable excuse or lawful authority, and for police powers to be extended to allow a stop and search provision for anyone reasonably suspected of committing the offence. This would require primary legislation in order to be implemented.
2.1 The Fireworks Review Group provided its recommendations to Scottish Ministers in November 2020 and reached a majority consensus that a fundamental shift is required in how fireworks are used and accessed in Scotland through the introduction of a comprehensive set of measures, including:
- The introduction of mandatory conditions before consumers are able to purchase fireworks.
- Restricting the times of day fireworks can be sold.
- Restricting the volume of fireworks that can be purchased.
- Restricting the days and times fireworks can be set off.
- A provision for no-fireworks areas to be introduced where it is not possible for fireworks to be set off, with local communities having a key role in influencing this.
- The introduction of a proxy purchasing offence to reduce the risk of fireworks being misused by children and young people under the age of 18.
2.2 A number of these recommendations have been progressed through The Fireworks (Scotland) Miscellaneous Amendments Regulations 2021, which amends the Firework (Scotland) Regulations 2004. The changes implemented by these regulations come into effect on 30 June 2021. Primary legislation is now being considered to progress the remaining recommendations from the Group including: the introduction of mandatory conditions at the point of the sale for fireworks, restricting the days that fireworks can be set off by the general public, introducing no-firework areas where the general public cannot set off fireworks and introducing a proxy purchasing offence to criminalise the supply of fireworks to people under the age of 18.
2.3 The Scottish Government also proposes to restrict the days that fireworks can be sold to the general public to coincide with the proposed changes to when fireworks can be used.
2.4 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, as well as specific analytical work and international case studies have also informed the policy objectives.
2.5 The gathering of details on pyrotechnic incidents at different types of events, both within Scotland and out with Scotland, allowed us to identify the main locations and types of events where pyrotechnics are misused.This also supported the view that the frequency of pyrotechnic misuse is rising and tackling this needs to be backed with sufficient police powers which could only be provided through new primary legislation.
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 2019 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, 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.
3.4 The misuse of Pyrotechnics can have a range of impacts on communities and in the wrong hands can be damaging and dangerous. We believe that a new offence to allow the police to stop and search a person they have reasonable grounds to suspect is committing an offence by being in possession of a pyrotechnic in a public place without reasonable excuse or lawful authority would reduce the number of incidents we are experiencing.
4. Existing Fireworks and Pyrotechnics Legislation
4.1 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.
4.2 During the consultation period, new regulations will come into effect which change how fireworks can be supplied and used in Scotland through The Fireworks (Scotland) Miscellaneous Amendments Regulations 2021, which amends the Fireworks (Scotland) Regulations 2004.
4.3 For most of the year, fireworks can currently only be sold by licenced fireworks traders. Licencing the sale of fireworks is done by local authorities, and traders have to meet set criteria to receive a licence.
4.4 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.
4.5 It is illegal for anyone under 18 to possess an adult firework and it is illegal to sell adult 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. From 30 June 2021, it will also be illegal to supply adult fireworks to the general public out with the permitted hours of 7am to 6pm and the permitted quantity of fireworks that can be supplied to the general public will be restricted to 5kg at a time. This does not apply to individuals licensed by the Local Authority; professional firework operators/organisers; firework businesses and community groups. 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.
4.6 From 30 June 2021, the use of fireworks by the general public will be prohibited to between 6pm and 11pm, with exceptions for cultural celebrations such as Bonfire Night and Chinese New Year. Existing regulations prohibit the use of fireworks during night hours between 11pm and 7am unless it is a permitted fireworks night. On 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. Exemptions are made for public fireworks displays held by professional firework operators/ organisers; fireworks businesses or community groups. Local authorities are also 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.
4.7 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.
4.8 The Minister for Community Safety 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 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, and 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.
4.9 Section 60 of the Criminal Justice and Public Order Act 1994 provides stop and search powers where police reasonably believe that people are carrying offensive weapons in any locality without good reason, and a sufficiently senior officer has authorised the use of such powers. Pyrotechnics would only be covered by this legislation if the police had reasonable grounds for suspecting that the pyrotechnic was being carried in the locality with the intention to cause injury to others.
4.10 Section 47 of the Criminal Law (Consolidation) (Scotland) Act 1995 makes it an offence for a person to have any offensive weapon with him/her in a public place without lawful authority or reasonable excuse. Section 48 contains a stop and search power in relation to this offence. The section 47 offence will only apply where there was an intention to use the pyrotechnic as a weapon to injure others.
4.11 It is an offence under section 20 of Criminal Law (Consolidation) (Scotland) Act 1995 to be in possession of a pyrotechnic article at sporting events. The 1995 Act provides the power for the police to search a person they have reasonable grounds to suspect is committing or has committed this offence.
2019 Fireworks Consultation
5.1 This policy has been developed following a significant programme of consultation and engagement with key stakeholders. This includes the 2019 public consultation which was an important step in gathering evidence on the range of opinions and perspectives in relation to fireworks and sought views on: the sale of fireworks to the general public; how people use and enjoy fireworks; the impact of fireworks on people, communities and animals; and ideas on what action could be taken to ensure fireworks continue to be enjoyed safely and responsibly. An independent analysis of the consultation responses was carried out to identify the main issues and themes raised by participants across all ways of taking part in the consultation, and this was published in October 2019.
5.2 The consultation and engagement was supported by a programme of analytical work to ensure the outcomes of the consultation were considered alongside other forms of evidence. This included a nationally representative opinion poll (with a sample of 1,002 responses) to ensure findings were available that represented the views of the wider public. The report from this was published alongside the consultation analysis in October 2019.
5.3 The consultation identified a broad sense that fireworks can be good for people and communities when they are used at the right time, right place and used responsibly. There was little appetite to ban properly organised public displays and recognition that they can bring communities together and have positive community benefits. The consultation and representative opinion poll, however, highlighted strong public desire for tighter controls to be introduced on the sale and use of fireworks in Scotland; and a similar theme emerged from the Firework Review Group whose recommendations centre on the sale and use of fireworks by the general public, as opposed to organised firework displays.
5.4 Both the consultation and omnibus survey demonstrated a strong desire for greater control on the sale and use of fireworks in Scotland:
- Almost all of those who responded to the consultation (94%) said they would welcome increased controls on the sale of fireworks; while majority of adults in Scotland (71%) felt there should be more controls over the sale of fireworks.
- A strong majority of those who responded to the consultation (92%) felt there should be more control on how they can be used; while a majority of adults in Scotland (68%) felt there should be more control on how fireworks can be used.
- Over three-quarters of those who responded to the consultation (87%) said they would welcome a ban on the sale of fireworks; while over half of adults in Scotland (58%) supported a ban.
5.5 Additional evidence was considered through: an evidence review on the impact of fireworks in the context of international legislation and regulations which included a summary of current fireworks legislation and regulations internationally, and a review of the available evidence on the impact of fireworks relating to social and environmental factors; and case studies of the evidence internationally and to draw evidence on the effectiveness – or otherwise – of similar measures in place.
5.6 Throughout this period, the Scottish Government has continued to engage with a range of stakeholders including emergency services, enforcement agencies, local authorities, animal welfare organisations, community safety representatives, the National Health Service, the fireworks industry, the Department for Business, Energy and Industrial Strategy (UK Government), the Health and Safety Executive and the Welsh Government.
5.7 A full list of those who responded to the 2019 consultation and who agreed to the release of this information is attached to the consultation report published on the Scottish Government website and includes Police Scotland, the Convention of Scottish Local Authorities (COSLA), the Scottish Community Safety Network, the Scottish SPCA, the British Veterinary Association, the Scottish Burned Children Club, the British Fireworks Association and a number of local authorities and community councils.
5.8 In preparing this consultation, the Scottish Government has taken on board responses received to the 2019 consultation, the ongoing engagement with stakeholders outlined above, the deliberations and recommendations from the independent Fireworks Review Group and the evidence gathered as part of this process. In addition, in preparing the consultation the Scottish Government has also liaised with:
Within Scottish Government:
- Justice Analytical Services
- Police Division
- Public Service Reform and Community Planning
- Community Empowerment
- Criminal Law, Practice and Licensing
- Local Government Policy
- Animal Welfare
- Environmental Quality
- Fire and Rescue Unit
- Consumer Legislation
- Veterans and Armed Forces Unit
- Community Safety Unit
- Urgent Care Policy
- Active Scotland
- Police Scotland
- The Society of Chief Officers for Trading Standards in Scotland (SCOTSS)
- Scottish Fire and Rescue Service
Local Authorities and Representative Bodies:
- Scottish Community Safety Network
- Society of Local Authority Lawyers and Administrators in Scotland
Engagement on pyrotechnics
5.9 Engagement in relation to pyrotechnic devices has been outlined in paragraphs 1.7 and 1.8 and included representatives from:
- Police Scotland
- Scottish Police Federation
- British Transport Police
- Crown Office and Procurator Fiscal Service
Within Scottish Government
- Community Safety Unit
- Police Division
- Active Scotland Division.
6.1 This section focuses on the key options that are considered in the consultation. These options have been developed taking into consideration a range of evidence including responses to the 2019 public consultation and the recommendations from the Fireworks Review Group. The 2021 consultation document lists all the options under consideration and that views are being sought on.
6.2 Mandatory Conditions at Point of Sale - The Fireworks Review Group recognised that mandatory conditions at the point of sale have the potential to have a positive impact on promoting and encouraging the safe and appropriate use of fireworks in Scotland. It is proposed that a licensing system is introduced on the sale of fireworks. These conditions could also be extended to cover responsible use and possession. Applying for a licence could include the completion of an online safety course and payment of a fee, with the licence being valid for 12 months. There are a number of options being considered and views are being sought through the consultation on how the licence system is best developed and delivered, including administration by the Scottish Government, another public service, partner organisation or local authorities.
6.3 Restricting the days fireworks can be set off by the general public - The Fireworks Review Group suggested that restricting the days fireworks can be used by the general public has the potential to ease the burden on our emergency services and reduce the noise and disturbance that fireworks can cause. It is proposed that the days consumer fireworks can be used by the general public is restricted to the week immediately preceding and week immediately following existing traditional firework celebrations, to cover:
- 29 October to 12 November;
- 28 December to 4 January;
- The 1st day of Chinese New Year and the week immediately following it; and
- The 1st day of Diwali and the week immediately following.
6.4 Restricting the days fireworks can be sold to the general public - It is proposed that restrictions are introduced to limit the days fireworks can be sold to the general public in Scotland to coincide with the proposed changes to when they can be used. This goes further than the Fireworks Review Group recommendation, which focusses on days fireworks can be used, and it is suggested that having fireworks available to purchase for long periods when they are not able to be used could lead to confusion for both retailers and consumers, and issues around stockpiling.
6.5 Introducing no-fireworks areas - The Fireworks Review Group recommended that a provision should be made for no-fireworks areas to be introduced where it is not permitted for fireworks to be set off by the general public, with local communities having a key role in influencing this. It is proposed that legislation is progressed to put this into practice, ensuring any system put in place is proportionate and fit for purpose to work alongside a range of local preventative and diversionary activity.
6.6 Introducing a proxy purchasing offence - The Fireworks Review Group noted that a recurring theme in their discussions was the misuse of fireworks and impact this can have on individuals and communities, and there was general consensus that there would be value in making the existing legislation clearer on adults giving or supplying fireworks to those under the age of 18. The consultation is seeking views on the introduction of a proxy purchasing offence to criminalise the supply of fireworks to people under the age of 18. The offences proposed to be created are:
- To buy or attempt to buy fireworks for an individual under 18;
- To give or otherwise make available fireworks to an individual under 18; and
- To knowingly deliver fireworks to an individual under 18 regardless if an adult made or purchased the order (with the aim of reducing online sales of fireworks to individuals under 18).
6.7 Section Two of the 2021 consultation document is seeking views on the use of pyrotechnic devices in particular:
- Whether it should be an offence to carry a pyrotechnic device in a public place without reasonable excuse or lawful authority, and whether police powers should be extended to allow a stop and search provision for anyone reasonably suspected of committing the offence: and
- To get views on whether this proposed new offence should be wide enough to allow the police to stop and search a vehicle for example a car, bus, tram or van.
Sectors and Groups Affected
7. People and Communities
7.1 Actions that will support the safe and considerate use of fireworks and appropriate use of pyrotechnics in Scotland will aim to protect people from harm, fear and distress. This includes addressing issues that were raised in the 2019 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.
7.2 The proposed policy will also affect the ability of community groups to put on local displays, as under the proposals in the 2021 consultation they will need to consider the measures being introduced through primary legislation as they organise public firework displays. Data from the Society of Local Authority Lawyers and Administrators (SOLAR) Licensing Group 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.
8.1 Retailers licensed to sell fireworks, either on an all year round basis or during traditional firework selling periods, will be impacted by the proposed changes. The proposed licencing system for consumers to purchase fireworks and restrictions on the days that fireworks can be purchased will have a direct impact on retailers and will require existing processes and practices to be adapted in line with the new measures.
8.2 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 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, 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).
8.2 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.
8.3 In relation to pyrotechnics there should be little impact on retailers who should only be selling these devices to people for legitimate uses. There are therefore no grounds for complaint – it is not tenable to argue that you have lost sales because customers have been prevented from using the item illegally.
9. Fireworks Industry
9.1 The fireworks industry are a group that will be affected by the proposed changes. Data from the British Fireworks Association (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.
9.2. 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.
9.3 Whilst the BFA were represented on the Firework Review Group, they did not agree with or endorse the Group's recommendations, and raised a number of concerns around the potential unintended consequences of the proposed measures including:
- Introduction of mandatory conditions at the point of sale: The BFA felt that the introduction of such measures could drive consumers to illegitimately purchase fireworks through illegal channels, bypassing safety messaging and potentially purchasing prohibited firework products. Concerns were also raised that these measures will not tackle the root cause of anti-social behaviour involving fireworks or fireworks misuse, as responsible consumers that would comply with the conditions would not purchase fireworks to use them in an irresponsible manner.
- Restricting the days that fireworks can sold be to the general public and restricting the days fireworks can be set off by the general public: The BFA highlighted concerns around restrictions on the days that fireworks can be used could encourage a 'use it or lose it' approach where consumers use fireworks in an unsafe way in order to meet restrictions around days. It was highlighted that this could also lead to stockpiling of fireworks at home if consumers cannot use all of their fireworks on permitted days.
- Introducing no-firework areas where it is not possible for the general public to set off fireworks: The BFA felt that this could lead to displacement of firework issues by moving the problem and fireworks use to another area, and potentially encourage use of fireworks in a public place in that area. The BFA felt that creating widespread firework free areas would not tackle the issue of fireworks misuse and anti-social behaviour.
- Introduction of a proxy purchasing offence to criminalise the supply of fireworks to people under the age of 18: The BFA agreed that some form of legislation to cover proxy transactions by an individual to another would clarify the situation, with the term 'supply' providing a catch all, where someone aged 18 or over gave fireworks to someone aged under 18.
9.4. The proposed changes may also impact on the professional firework display sector, however this is anticipated to be to a lesser extent than firework retailers. The increased measures on the general public purchasing and using fireworks may even see an increase in public organised displays and use of professional companies to organise these. A short questionnaire was circulated to the Society of Local Authority Lawyers and Administrators (SOLAR) Licensing Group in February 2020: it highlighted 152 organised displays took 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.
10.1 It is recognised that the proposed changes will impact on consumers and their ability to purchase and use fireworks. The BFA estimate that approximately 258,000 consumer firework sales take place in Scotland each year. Introducing mandatory conditions at the point of sale can play an important role in promoting the safe and considerate use of fireworks, ensuring consumers are aware of and understand relevant safety requirements and measures. These conditions could include requirements such as the successful completion of a safety test, will also ensure that consumers have an understanding of basic safety principles when purchasing firework products. Proposed measures, such as no-firework areas and restrictions around the days the fireworks can be used, will impact how consumers can legally use fireworks and will need to be taken into consideration prior to fireworks being set off.
10.2 Those buying pyrotechnics for legitimate uses will continue to be able to do so. The proposed changes relating to pyrotechnics will therefore have no impact on this group.
11. Local Authorities
11.1 The proposed measures to introduce no-firework areas is most likely to impact on local authorities. Depending on responses to the consultation in relation to the administration of the mandatory conditions at the point of sale this may also impact on local authorities. These proposals may therefore include an additional resource burden on local authorities. Local authorities were represented on the Fireworks Review Group through COSLA and the SOLAR (Scottish Local Authority Lawyers & Administrators) and formed part of the collective agreement on the need for fundamental change that the Fireworks Review Group recommended.
11.2 Police Scotland will be responsible for enforcing the proposed offence and carrying out the related stop and search power for pyrotechnics and therefore the proposed change will not impact on local authorities.
12. Emergency Services
12.1 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 days that fireworks can be used may lead to increased reports of use outwith permitted days, however the introduction of a no-firework area in a community that previously saw high instances of fireworks misuse and incidents requiring emergency service response 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.
12.2 Police Scotland has been a key driver in requesting the proposed offence and related stop and search power for pyrotechnics and will be responsible for implementing it. However, this will simply extend existing powers and we believe there will be no additional resource required. However, the change could benefit them in other ways such as preventing crime and injury through the misuse of pyrotechnics and therefore not needing to respond to such incidents. This will also be true for ambulance and fire services.
13. Benefits and Costs
- A significant package of legislative change is required to bring about a cultural shift in the relationship Scotland has with fireworks, supported by preventative activity such as education and awareness raising, improved outcomes for people in relation to noise and disturbance, anti-social behaviour, community safety and wellbeing and reducing firework related injuries.
- Positive action has been taken to address issues raised through the public consultation and opinion poll from 2019, working towards the cultural shift in the relationship that Scotland has with fireworks as recommended by the Fireworks Review Group.
- Improved community safety and wellbeing, particularly in areas that have experienced ongoing issues due to fireworks misuse and anti-social behaviour during traditional consumer firework selling periods, with the option to implement a no-firework area in places where there is significant disruption. These issues came out strongly in the public consultation
- Individuals and communities will be able to better plan and prepare for fireworks being used. This will particularly benefit those with noise sensitivity, such as people with autism or PTSD, as well as pets and livestock that are distressed by the noise created by fireworks.
- Improved outcomes for people living in areas of increased deprivation. Data on firework injuries in Scotland makes a clear link between living in the lowest SIMD decile and being more likely to sustain an injury due to fireworks, with eight times as many patients attending hospital emergency departments from these areas than those living in the least deprived communities.
- There is an overall spike in patients requiring hospital treatment due to a firework injury over firework periods. Restricting the days and times that fireworks can be purchased will reduce the period where fireworks are used by the public.
- The throwing, casting or firing of fireworks in a public place has been the most common firework anti-social behaviour related charge in Scotland since 2002/03. The introduction of these measures will ensure that fireworks are purchased by responsible consumers in a pre-planned and well thought out manner, with an understanding of the safe and considerate use of fireworks.
- Possession of a firework by a person under the age of 18 years of age is one of the most common firework related charges in Scotland, however the actual number of people charged is relatively low. A proxy purchase offence will deter supply of fireworks to people aged under 18 and ensure clear legislation is in place to charge and prosecute on occasions where this occurs.
- Reduction in the number of firework related incidents and attacks on emergency service workers, with the proposed measures ensuring the safe and considerate use of fireworks through responsible and well-thought out purchasing of fireworks. This will impact positively on the costs associated with planning for and preparing for firework related incidents. In 2019 Police Scotland estimated costs covering 4 and 5 November of approximately £98,000. This benefit may be realised over a longer time period as consumer behaviour develops and the changes bed in.
- The international experience of countries that have introduced these measures, including a licensing system and reduced selling/use period of fireworks, has been positive and seen a reduction in injuries.
- Improved safety for individuals will be a key factor in relation to the proposed changes for pyrotechnics. This will extend to all of the places where pyrotechnics are currently set off illegally such as concert venues and sports grounds.
- Mandatory conditions at the point of sale: There will be financial and resource costs associated with developing, operating and managing the system. A cost analysis will be undertaken on the options included within the consultation in order to fully understand the costs associated with each option. However, it is anticipated that the fee charged to obtain a licence will make the ongoing system cost neutral.
- Areas where it is not possible for the general public to set off fireworks: As part of the proposals set out in the consultation document, there will be an administration cost to local authorities. To appreciate the impact of this proposed measure, as part of the consultation process the Scottish Government will seek views and work with COSLA and local authorities to identify the financial and resource impact of this proposed measure.
- Restricting the days that fireworks can be sold to the general public and restricting the days fireworks can be set off by the general public: This measure could impact on retailers selling fireworks, particularly specialist firework retailers with a licence to sell fireworks to the general public throughout the year. This proposed measure applies only to the supply of fireworks to the general public in Scotland. Therefore retailers can continue to sell fireworks to professional display companies and firework operators in Scotland, as well as consumers outwith Scotland throughout the year. Views are being sought through the consultation on how this could impact businesses in Scotland.
- Introduction of proxy purchasing offence: There could be an additional financial and resource burden within the justice system associated with processing cases where people are charged with the proposed offences, including by police and the courts in Scotland. Whilst anecdotal evidence suggests that supply of fireworks to young people is an issue in certain areas, there is no evidence to suggest that this is a widespread problem and that creation of the offences will lead to a high influx of cases. The intention of this measure is to act as a deterrent to supply fireworks to people under the age of 18 whilst having an appropriate offence in place where this is still found to have happened. To understand the impact of this measure in practice and the number of convictions resulting from the offence, the Scottish Government will work with Police Scotland and the Crown Office Procurator Fiscal Service.
- There are no costs associated with the proposed changes in relation to pyrotechnics. To understand the impact of this measure in practice and the number of convictions resulting from the offence, the Scottish Government will work with Police Scotland and the Crown Office Procurator Fiscal Service.
14. Scottish Firms Impact Test
14.1 The two main groups who will be impacted by the proposed regulations are specialist retailers that have a license to sell fireworks all year round, and retailers that sell fireworks temporarily at certain times of the year. Professional firework/pyrotechnic display companies may be affected, but to a lesser extent where their core business is not the sale of category F2 and F3 fireworks. There are, however, some professional display companies that also sell fireworks as part of their business and would therefore likely 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.
14.2 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 considered as the proposals have been developed.
14.3 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 to the general public. 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 substantively altered or impacted by the proposed legislation.
14.4 Eight businesses responded to the 2019 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.
14.5 To appreciate the impact that the proposed legislation may have on businesses operating in Scotland, as part of the consultation process the Scottish Government is seeking views from bodies representing firework retailers and importers.
14.6 The proposed offence of being in possession of a pyrotechnic in a public place without a reasonable excuse or lawful authority and the extension of police stop and search powers will have no impact on consumers seeking to buy pyrotechnics for legitimate uses.
15. Competition Assessment
15.1 It is not considered that the proposed legislative changes will impact on competition in the fireworks market in Scotland. The proposed legislation will not make it more difficult for a new retailer to enter the firework sales market.
15.2 The temporary storage licenses required for non-specialist retailers to sell fireworks are administered and granted at a local level. As it is proposed that further restrictions are introduced on the days that fireworks can be sold to the general public, this will change the days that temporary storage licences can be granted to retailers to sell fireworks on permitted days of the year. Licences for specialist fireworks retailers are also administered and granted locally. These businesses will be required to comply with restrictions and permitted days when fireworks can be to the general public. They will, however, continue to be able to sell fireworks throughout the year to professional display companies and firework operators, as well as community groups and organisations organising a public firework display.
15.3 It is considered that the proposed regulations will not impact on the competitiveness of Scottish based firms. The proposed regulations restricting the days fireworks can be sold 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. The proposed legislation will not limit the ability of retailers in Scotland to supply customers outside Scotland.
15.4 The proposed legislative changes in relation to pyrotechnic devices will not have an impact on competition in this market. The proposed legislation will not make it more difficult for a new retailer to enter the pyrotechnic sales market.
16. Consumer Assessment
16.1 The impact the proposed regulations will have on consumers has been considered. The days that the general public can purchase and use consumer fireworks will be narrowed to specific periods of cultural significance, such as Bonfire Night and Diwali. This will encourage consumers to plan when they will be purchasing and using fireworks.
16.2 Introducing mandatory conditions at the point of sale will mean that consumers are required to successfully meet specific criteria in order to purchase fireworks. It is proposed that these focus on safety and encourage the considerate use of fireworks.
16.3 The introduction of no-firework area will impact consumers, as on some occasions, this will determine whether they can use fireworks in the location that they intended to. However, it is proposed that the process of implementing a no-firework area will be done at a local level and involved individuals and communities in that area. Therefore consumers will be aware of any restrictions around using fireworks in a particular area and the reasons for that, allowing them to adapt their plans accordingly.
16.4 The proposed introduction of an offence of being in possession of a pyrotechnic in a public place without a reasonable excuse or lawful authority and the extension of police stop and search powers for pyrotechnic devices will not have any impact on those seeking to purchase them for legitimate uses.
17. Test Run of Business Forms
17.1 There are no new business forms proposed at this stage for either fireworks or pyrotechnics. This will continue to be considered as the measures being progressed are developed, particularly around the introduction of mandatory conditions at the point of sale for fireworks and development of the proposed licensing system.
18. Digital Impact Test
18.1 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.
18.2 The proposed stop and search power for pyrotechnic devices will not have an impact on advances in technology.
19. Legal Aid Impact Test
19.1 At this stage, it is not anticipated that the proposed legislation will give rise to legal challenge, increased use of legal processes or impact the legal aid fund.
20. Enforcement, Sanctions and Monitoring
20.1 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 legislation in Scotland.
20.2 COSLA, local authority licensing officials and Police Scotland have been engaged and represented on the Fireworks Review Group and fed into recommending the proposed changes. Engagement will continue and if the proposals become legislation, existing processes where appropriate will be adapted accordingly.
20.3 The potential introduction of a proxy purchasing offence criminalising the supply of fireworks to people under the age of 18 creates a new offence that will require to be enforced by Police Scotland. Similar offences already exist for the supply of alcohol or tobacco products to individuals under 18, and it is anticipated that this offence will be enforced and sanctioned in a similar way.
20.4 Other offences which will be created through the proposals include:
- An offence for a retailer to sell fireworks to a member of the public without a licence.
- An offence for a retailer to sell fireworks outwith the permitted dates. An offence for a member of the public to use fireworks outwith the permitted dates.
- An offence to set a firework off in a firework free area.
20.5 It is anticipated that these will be enforced and sanctioned in a similar way to current contraventions of firework prohibitions.
20.6 Police Scotland will be responsible for the enforcement of the proposed offence and carrying out the related stop and search power for pyrotechnics. They will also be responsible for recording data relating to the use of the provisions. A similar offence already exists for a person to have an offensive weapon with them in a public place without reasonable excuse or lawful authority, and it is anticipated that the proposed offence will be enforced and sanctioned in a similar manner.
21. Implementation and Delivery Plan
21.1 Developing the proposed primary 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.
21.2 It is proposed that implementation of changes introduced by the Bill are staggered over 2022 and 2023. This is to allow measures to be fully developed and considered prior to implementation and enforcement, which will involve Trading Standards officers, Police Scotland, local authorities and COSLA, as a representative body for local authorities. Existing processes will require to be adapted to take into account the changes the proposed legislation will bring, as well as consideration of new systems or processes that will be required to be developed to administer proposed measures within the Bill. The Scottish Government will continue to engage with stakeholder organisations and enforcement agencies as any changes introduced through the Bill are developed and implemented.
21.3 Police Scotland will implement the new offence for being in possession of a pyrotechnic in a public place without reasonable excuse or lawful authority and the stop and search power for pyrotechnics as soon as possible after the powers come into force.
22. Post-Implementation Review
22.1 The Scottish Government will undertake a review of any proposed measures introduced through the Bill within 3-5 years of implementation to check that requirements are being met and that the legislation is working effectively.
22.2 Continued engagement with Police Scotland and other key stakeholders will allow us to monitor the impact of the new pyrotechnic powers and review these a year after implementation.
23. Summary and Recommendation
23.1 The Scottish Government are seeking views on the measures outlined in the 2021 consultation. This section will be completed in the final BRIA when we have considered the responses from this consultation.
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
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