New fireworks rules in Scotland

Fireworks are used in celebrations throughout the world and have been set off in the UK on 5 November to celebrate Guy Fawkes night since 1606.

Following reports of the dangerous use of fireworks in public areas by gangs of youths around Guy Fawkes night, the Scottish Government set up a series of information-gathering events in 2019.

This was followed by a consultation exercise outlining possible ways of curbing the anti-social use of fireworks and other pyrotechnics such as distress flares and smoke bombs. The Scottish Government Minister for Community Safety asked for views on fireworks’ use and misuse.

This resulted in an amendment to the Scottish Fireworks Regulations in 2021 which restricted the sale of adult (Category F2 and F3) fireworks to the hours between 0700 and 1800. Previously there was no restriction on the times fireworks could be sold. The amendment has also restricted the use of fireworks to the hours between 1800 and 2300.

The allowance for the later use of fireworks on 5 November,  New Year’s Eve, Diwali and the Chinese New Year has not been changed. The third change has been to the amount of fireworks that can be sold to anyone over 18 at any one time. Before the amendment came into force, up to 50kg of fireworks (measured by the amount of explosive the fireworks contained} could be sold to any adult. This is now restricted to 5kg at any one visit. In England and Wales the 50kg limit has not been changed.

New offences

On 10 October Section 21 of the Fireworks and Pyrotechnic Articles Scotland Act 2022 came into force by a Commencement Order. This Section makes it a criminal offence for any person to buy adult fireworks or other pyrotechnic articles for anyone under 18 years (proxy purchase) or for any person to give or otherwise make available adult fireworks or other pyrotechnic articles to anyone under 18 years. The new proxy sales and giving offences will be enforced by the police, as will the use of fireworks outside the permitted times.

Trading Standards enforce the restricted times of sales.

The Scottish Government intend to restrict the sale of fireworks to persons who have attended a training course and hold a licence but there are no details of a timescale for this at present. It is also intended to prevent all year round sales of fireworks in Scotland by restricting the days on which fireworks can be supplied, but again the timescale for this has not been published.

None of the changes in Scotland apply in England or Wales.

The police are responsible for enforcing the laws preventing anti-social behaviour involving setting off fireworks in public places.

As a result of complaints of anti-social behaviour 20 years ago, a Private Members Bill was introduced to Parliament. This became the Fireworks Act of 2003 followed by the Fireworks Regulations of 2004. The regulations created an offence of using adult fireworks between 11pm and 7am except for 5 November, 31 December, Diwali and the Chinese New Year when there is an extension to the late night use of fireworks.

The fireworks which the regulations restrict are:

• Category F2 fireworks which present a very low hazard and low noise level, and which are intended for outdoor use in confined areas.
• Category 3 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 are only available to fireworks professionals.
• Category F2 and F3 fireworks can only be supplied to members of the public who are 18 or over.

The sale of adult (Categories F2 and F3 fireworks) to the public is restricted to defined periods around the four celebrations, but an exception was made for specialist firework suppliers who have an all year-round licence to supply F2 and F3 fireworks. Fireworks are also available to purchase online.

The Scottish Government brought out its own version of the regulations in 2004; The Fireworks (Scotland) Regulations 2004. The Scottish Government brought out a set of amendment regulations in 2021 to further restrict the sale of adult fireworks, following a consultation exercise to which more than 16,000 people and organisations made replies.

The Fireworks (Scotland) Miscellaneous Amendments Regulation 2021 came into effect on 30 June 2021 with more restrictions being placed on the purchase of F2 and F3 fireworks.

The restrictions:

• limit the times of day fireworks can be used by the general public to between 6pm and 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);
• limit the times of day fireworks can be supplied to the general public to during the daytime hours of 7am and 6pm, alongside existing requirements on retailers around sale and storage licences; and
• limit the quantity of fireworks that can be supplied to the general public to 5kg at any one time.

The Scottish Government has now embarked on a process of further restricting the sale and use of fireworks in Scotland by publishing a Bill of proposed new legislation. The new Fireworks and Pyrotechnic Articles (Scotland) Bill seeks to restrict the use of fireworks to licensed individuals and groups and to introduce new criminal offences.

The main changes will be:

• the introduction of a fireworks licensing system;
• a new power for local authorities to designate firework control zones, where it is not permitted for the public to use fireworks;
• restricting the days fireworks can be sold to and used by the general public;
• a new offence to criminalise the supply of fireworks and pyrotechnics to under-18s to ensure adults do not purchase such products on behalf of children; and
• a new offence of being in possession of a pyrotechnic while at, or travelling to, certain places or events, without reasonable excuse.

Fraser Stevenson, the vice chairman of the British Fireworks Association, presented evidence to the Scottish Government’s Justice Committee on 23 March 2022. The main points of his presentation are as follows:

• The Westminster Parliament investigated fireworks in 2019 (reported in the “Bulletin” at that time) and decided to make no new legislation but instead to publish a safety campaign.
• The fireworks industry has worked closely with government to ban dangerous fireworks, which has drastically reduced the number of firework-related injuries over the last 20 years.
• In 2020 the Office for Product Safety and Standards and the Department for Business and Industrial Strategy started a safety campaign highlighting the importance of the safe, considerate and responsible use of fireworks. The importance of reading the safety instructions, the importance of buying from licensed, authorised retailers, the importance of being considerate to those who may not enjoy fireworks as much.
• Due to COVID-19 there have been very few organised fireworks displays in the last two years but the sales of fireworks to consumers have increased by up to 700%. This has not caused a massive increase in accident rates or misuse of fireworks.
• Stevenson outlined the current restrictions on the sale and use of fireworks which have developed since the Explosives Act of 1875 and reminded the committee of the current maximum penalty of £5,000 and six months in jail for the misuse of fireworks in Scotland.
• The 2019 Westminster enquiry concluded that greater restrictions and controls on the sale and use of fireworks would not be appropriate due to the real risk of creating a black market and making matters worse, not better.
• The British Fireworks Association believe the proposed Fireworks Bill will lead to the unintended consequence of creating a black market where fireworks will be supplied by organised crime instead of licenced retailers. It will create more problems for enforcement and lead to more accidents.

Proposed new licensing scheme for members of the public

The fireworks licensing system will affect the purchase, acquisition, possession, use and supply of F2 and F3 fireworks by the public. There will be no change in the law regarding the acquisition and use of F4 fireworks by firework display organisers with specialist knowledge. It will become a criminal offence to purchase, acquire, possess, or use an F2 or F3 firework without a licence. It will also become an offence to supply any person with an F2 or F3 firework if that person does not have a licence. The onus will be on the supplier to check that the purchaser has a licence.

A completely new concept will be introduced by the legislation. It will become a criminal offence for any member of the public to give a firework to any other member of the public who does not have a licence. It will also become an offence to buy a firework on behalf of anyone under 18 years (proxy purchase). Currently it is not illegal for a member of the public to give fireworks to any other member of the public including children.

No details are available as to how to apply for a licence or how much it will cost or what training is required for the safe use of fireworks. What is clear is the intention to introduce a maximum penalty of a fine of £5,000 and six months in prison for offences against the fireworks licensing conditions.

Applicants for a firework licence will be required to attend a training course but no details of the course have been published except that it should address the safe and appropriate use of fireworks.

The sale of F2 and F3 fireworks is currently restricted but the bill intends to further restrict the sale. There are a number of fireworks outlets which are licensed to sell fireworks to the public all year round. This practice will cease, which means that the sale of fireworks will be restricted to periods associated with Guy Fawkes Day, Hogmanay, Diwali, the Chinese New Year and a completely new fireworks celebration of Vaisakhi (the Sikh New Year).

Further restrictions will be placed on the days when fireworks can be legally used and it will become a criminal offence for the public to use F2 and F3 fireworks on the days which are restricted.

Another new restriction involves firework control zones. Local authorities will have the power to designate areas where fireworks are not permitted to be used at any time. Anyone using a firework in a restricted area will commit a criminal offence.

Pyrotechnic articles will be banned from possession by people travelling to or attending designated events such as a procession or a football match. Alcohol, fireworks and certain other substances have been banned from sporting events for some years. The definition of pyrotechnic articles is much wider than the definition of fireworks. “Pyrotechnic article” means an article which contains explosive substances, or an explosive mixture of substances designed to produce heat, light, sound, gas or smoke or a combination of such effects through self-sustained exothermic chemical reactions.

The restrictions on the sale of fireworks to unlicensed persons and to any person on undesignated days will be enforced by Trading Standards Officers. The Act will create an offence of obstructing a Trading Standards Officer and providing false information to a Trading Standards Officer. Pretending to be a Trading Standards Officer is also a criminal offence. All other offences of illegal possession and use of pyrotechnics will be enforced by Police Scotland who will be given extra powers of entry and search by warrant and stop and search on suspicion.

Employees of specialised fireworks display organisers and public authorities are exempt from the prohibitions on possessing fireworks.

Powers of Trading Standards

Trading Standards Officers have the power to investigate possible offences involving the supply of fireworks in the course of a business to unlicensed persons. They also have the power to investigate possible offences involving the supply of fireworks in the course of a business on days or hours when the supply is not authorised.

Officers may enter premises where fireworks are sold and observe the business practices without announcing their presence. They may also take underage persons or persons without a licence to attempt to purchase fireworks. They may also enter premises such as warehouses and offices which are not open to the public but in most cases of routine inspection at least 48 hours written notice will be given. Where an offence is suspected no notice needs to be given and any refusal to cooperate can be deemed a criminal obstruction.

A court can award a Trading Standards Officer a search warrant to enter premises including a private dwelling where entry is expected to be refused. Fireworks involved in criminal activity can be inspected, tested, seized, and retained as evidence. Any document relative to an offence can be examined and seized as evidence, this also applies to electronic documents. Officers have the power to break open containers to examine documents or items. ‘Containers’ includes safes, computers and mobile phones.

A further article will follow to update APEA members of the progress of the Bill and the eventual changes that may take place in Scotland.