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I am.

To be clear about what the bill seeks to do, where does the ultimate onus and responsibility lie for checking whether someone holds a licence? In a physical scenario, is it at the point of purchase or delivery? If it is an online purchase, does it lie with the person who processes the order at the other end, in the back office?

I do not know what we can and cannot legislate to do in that regard, but, under the bill as drafted, it remains unclear where the ultimate responsibility lies and whose job it is, in the law’s eyes, to check whether the purchaser holds a licence or is exempt. That is the reason for amendment 61.

It is probably easier to deal with that point now, as I am likely to forget to do so in my summing up. You are absolutely right: it is quite apparent that it is nigh on impossible to mandate retailers in the statute in the way that we might need to do in order to ensure that someone holds a licence. That is why I have worded my amendment in the way that I have. The onus is on the licence holder to present their licence “at point of purchase”, because that is most definitely within the competence of both the Parliament and the bill.

Sure. However, the manifestation of the principle is the removal of the scheme entirely by the removal of section 4, and its removal would create issues. I suspect that, with the benefit of time, the member would have been able to formulate something else.

I have another couple of amendments of a similar ilk coming up, because I have reservations about the proposals and I want the Government to revisit them. I have proposed how it should do that and, more important, I have given timescales.

I hope that the member will reflect on amendment 90, which is on post-legislative scrutiny—it is unclear whether that will be considered today or next week. It provides for a review of the licensing scheme and the effect that it is having on the black market and illegal purchasing, for example. Other amendments are coming up, and I think that we will have a good debate about them. I hope that the member will be willing to support them in return for my lack of support for amendment 46.

I have heard the concerns about amendment 60. Valid concerns have been raised in the debate about the reasonable excuse, so I will not press that amendment.

However, I will move amendment 61, which is quite a simple one. There are still quite muddy waters in relation to what we can do through the bill to ensure that people present their licence. Rona Mackay is right to say that retailers already have to verify someone’s age when certain products are sold. That is all well and good in a physical environment in Scotland. If someone buys fireworks from a Scottish retailer, I do not think that there is a problem. The legislation is clear about who is responsible for such sales. However, if someone buys fireworks from a UK retailer, it is slightly less clear where the jurisdiction lies. If the sale is from outside the UK, the position is even less clear, other than the courier being landed with the entire responsibility if someone makes a purchase. During the debate, I googled “Buy fireworks from the EU”. There are dozens of websites that will happily sell fireworks to people in Scotland, and I am afraid that nothing in the bill will legislate for that.

In my view, the simple solution is to put the onus on the purchaser to present their licence to the retailer in whichever manner is possible. These days, that should not be too difficult to achieve from a technical point of view. Much of that will depend on the technical solution that the Government procures and introduces to administer the licensing scheme, but it should not be beyond the wit of man to allow for a licence to be presented digitally or physically at the point of purchase. That would put the onus back on the licence holder, because they would need to have their licence with them if they were buying fireworks, in the same way that people need their age identification if they want to buy alcohol or cigarettes. We know that we simply cannot have wholesale legislation in relation to enforcement for online or physical retailers, so we would put the onus back on the purchaser. I struggle to see why that would be an issue, so I will move amendment 61.

Amendment 60, by agreement, withdrawn.

Amendment 61 moved—[Jamie Greene].

I will speak to amendment 66 first. Amendment 66 is a short amendment to section 5, page 3, line 14, which would leave out the word “is” and insert “may be” instead. It is the only amendment in my name in the group, but I will also speak to Russell Findlay’s amendment 62.

Amendment 66 relates to the supply of fireworks to an unlicensed person, which we debated earlier. That section of the bill could, in effect, criminalise retailers, online sellers, shopworkers and delivery drivers who sell fireworks to people without a licence. In itself, that is a controversial debate. However, it is still entirely unclear whether the liability lies with the individual at the point of purchase or with, for example, whoever is recorded on the receipt of the purchase, the owner of the premises, the business or the website, the retailer, the executives or the trustees, and so on. Section 5(3) explicitly states that it is a defence to show that the person “took reasonable steps” to establish that the purchaser either had a licence or was exempt from having a licence.

To go back to our earlier debate about offering flexibility in the judiciary—I have conceded the need for that—I have proposed changing the wording to

“It may be a defence”,

to allow for the discretion, which we agreed to earlier this morning, for the police, the courts and the justice system to determine on a case-by-case basis whether the defence that has been provided is bona fide and robust. It cannot be a black and white matter, as it is a defence—that was the mistake that I made in my previous amendment.

On the wider point, notwithstanding amendment 66, unanswered questions remain regarding the practicality of who is committing an offence and under what circumstances if an unlicensed customer is able to successfully purchase a product. I ask the committee to reflect on that issue.

I agree with what has been said so far about the other amendments in the group relating to penalties. However, there is an additional point to be made about the message that is sent out if we increase the penalties. The option of an increased penalty at the disposal of the sheriff is not an automatic increase that means that all fines and sentences will go up, but is something that offers the sheriff a wider toolkit. That is important, because it will act as a deterrent to those whom we know engage in problematic behaviour; it reflects the strength of feeling that we have heard from communities that have suffered and which feel that the law is not necessarily a deterrent as it stands; and it will send a strong message that we will take the matter seriously.

For technical reasons to do with the presumption against shorter sentences, everyone knows that—irrespective of one’s view on the matter—a six-month sentence is not a sentence served. That is a fact. Increasing the maximum sentence to 12 months means that there is real potential that the most serious offenders, in committing the most serious offences, would run the risk of going to prison. That potential does not currently exist.

I appreciate that we would be making a jump across water, but that is important, because it would give sheriffs a disposal that they do not currently have available to them. There would be a meaningful chance that people could go to prison for the most serious of offences. I am not saying that they would or that our view is that they should—I am simply saying that it would give sheriffs that option. It is an important jump, which is why we would increase the maximum sentence to 12 months. I ask the Government and members to support the increase, or to explain why we should not do so.

Can I ask the minister a question on that?

Thank you, minister. I again refer to the potential of the legislation to drive people towards online purchases. What about those businesses that run websites? Examples include pyrofire.eu, bestpyroshop.eu, pyrobest.eu and so on. That list is not exhaustive; other retailers are available. What would be deemed a reasonable excuse from them? How would they show that they had taken all measures necessary to ensure that a Scottish consumer had purchased and held a licence? How would they even know that there is legislation in Scotland that pertains to the sale and restriction of products to unlicensed people unless they are exempt? That is still unclear, despite all the answers that we have been given.

What Katy Clark has said is testament to why we need a solution such as the one that is proposed in amendment 68. As the bill stands, a community group could pay a private company for an organised display, but it sounds as though that would be a lot more expensive than the group paying for a licence itself.

That is even worse. We will come on to debate the relevant group of amendments, but we now have a scenario in which anyone could use their status as a community group, however that is defined—I have tried to define it using the Community Empowerment (Scotland) Act 2015. There would be nothing to prevent a group of people from saying that they are putting on a community display and claiming exemption at any point in the year. We could have displays every day of the year, which surely defeats what the legislation is trying to achieve.

That is a welcome offer. The issue around instances where the misuse of fire has been a factor was quite an obvious one that jumped out at us in the first instance. Clearly, arson or other serious instances of misuse of fire should prohibit someone from obtaining a licence, or, at least, should be explicitly recorded on a person’s application in order to inform the licensing decision.

However, we believe that it is clear that there are other sorts of behaviour that should be disclosed on the application to inform the decision-making process. It strikes me that, in a scenario in which someone is a serial offender in relation to antisocial behaviour, whether fireworks have been involved or not, there is a judgment to be made about whether they are a fit and proper person to hold a fireworks licence. That is what is missing from the essence of the relevant offences in section 7(4) .

The four offences that the Government has explicitly chosen to put in section 7(4)—offences under the Fireworks Act 2003, the Pyrotechnic Articles (Safety) Regulations 2015, the Explosive Substances Act 1883 and the Explosives Act 1875—are all related only to fireworks, which means that the provision does not address the serious issue of people with convictions for antisocial behaviour and more serious offences, including those convicted on indictment, which my colleague also wishes to add.

There is scope for offences in addition to the misuse of fire to be taken into account by those who administer the licences, and for disclosure of those offences to be made mandatory, if, indeed, disclosure is not an explicit requirement. Serious offences should be taken into account, which was the point of expanding the list of offences from those under the four pieces of legislation in section 7(4). Even if we do not move the amendments, the Government could consider the issue ahead of stage 3, because, ultimately, a fit-and-proper-person test must apply to the question whether someone is suitable to hold a licence.