Fireworks Bill (Hansard, 5 May 1998)

§ Lord Monkswell
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Monkswell.)

§ Lord Kimball
moved Amendment No. 1: Page 1, line 9, leave out from ("it") to end of line 11. The noble Lord said: In moving Amendment No. 1, I wish to speak also to Amendment No. 2. The aim of Amendment No. 1 is to prevent confusion over the possible use of other pyrotechnic devices whose primary use is not as fireworks for entertainment. Various safety and warning devices are used in firework displays. Items such as smoke flares, Very lights, exploding warning caps, alarm guns and gas fired bird scarers could all be incorporated with fireworks in a display. If this was the case and they came under this Bill that could cause confusion when they are required for their normal and primary use. As items of safety equipment their primary purpose must override any secondary purpose to which they are put.
I see a battery of learned QCs to my left and the noble Viscount, Lord Astor, all of whom are much more skilled in dealing with the really important subject of the second amendment, which is designed to safeguard this important Bill from changes which might be made by a future Secretary of State and which, without being brought before this House, might inadvertently change the primary purpose of the Bill. I beg to move.

§ Lord Campbell of Alloway
Amendment No. 2 gives power to the Secretary of State by secondary legislation to amend Clause 1(1), which is primary legislation. Under paragraph (a) of Clause 1(1) there is a definition of fireworks. Under paragraph (b) of Clause 1(1) there is a definition of would-be fireworks. My noble friend Lord Kimball has already spoken of the confusion in that context.
The definition is for the purposes of Clause 1(3) and governs the fireworks regulations under Clauses 2 and 3 and Clauses 5 to 10. This power to amend primary legislation by regulations under Clause 1(2) and to make regulations in implementation of virtually the whole of this Bill is in no way restricted by the Title, which is merely to make provision about fireworks and other 557 explosives. The only constraint upon this extraordinary exercise of power is in Clause 16 by statutory instrument subject to annulment by either House. If Clause 2(1) is to stand, then Clause 16 will require substantial amendment, such as is proposed in Amendment No. 13 of my noble friend Lord Kimball as to the laying of a draft before both Houses and an affirmative resolution.
Clause 1(2) should not stand as part of this Bill. The Select Committee at paragraph 7 said, The fact that the Bill sets no limits on what might be brought within the definition and so within the scope of the Bill caused the Committee particular concern". Then the committee said that a ministerial undertaking might be given. In my book that is no good at all. This is a matter which has to be dealt with on the Bill as regards the structure of legislation.
As to the regulations, the Committee said at paragraph 9, Again, the Department indicated that the power would in practice be used in limited circumstances". Then there is a ministerial undertaking. Again, that is wholly inappropriate.
At paragraph 16 of the report the Select Committee draws attention to the most disturbing aspects of the wide-ranging powers conferred. Indeed, it is a most unusual and disturbing feature, as the extensive devolution of power to the Executive as proposed by this Bill is, in my book, wholly unacceptable and, owing to constraints of parliamentary time, scrutiny of regulations when laid is all but perfunctory.
As regards your Lordships' House, as Members of the Committee well know, there is power to amend or to reject secondary legislation, but by custom such power is not exercised. In parentheses, perhaps I may express a personal view that this power and resort to this power may be enshrined when your Lordships' House is reformed and reconstituted. The prophetic warning of my noble and learned friend Lord Hailsham as to the dangers of an elective dictatorship has now all but been fulfilled. This Bill affords an unwelcome and distressing example in Clause 1(2), which should not stand part.
It is one of the functions of your Lordships' House to ensure that there is a curb upon misuse or abuse of executive power. The Government are not in favour of a total ban but, as yet, do not know to which devices the Bill is to apply. They do not know what provisions should be made. It is all left to the Secretary of State, a sort of proverbial firework tsar, subject to wholly inadequate parliamentary control. I support Amendment No. 2.

Viscount Astor
I should apologise to Members of the Committee for the fact that I was not able to be present at the Second Reading debate on this Bill. My noble friend Lord Campbell of Alloway has very carefully and succinctly described some of the problems with this Bill on the legal front. I would like to take it one stage further and say what those problems mean, in effect, on the executive front or, indeed, the political front.
558 The powers in the Bill are very wide. Quite frankly, I am not disturbed so much by the powers in the Bill; what I am really disturbed about is the fact that the Delegated Powers and Deregulation Committee said that this House might be satisfied by assurances given in the House. That is not good enough.
An assurance is not worth very much. It describes the thinking of the Secretary of State of the day. We all know that reshuffles happen regularly in government, in any government. If a Bill is passed and becomes an Act an incoming Minister is not bound by any assurances; he is bound by the law. It is not a question of Pepper v. Hart; it is a question of what powers there are in this Bill under which a Secretary of State could say, "This is all very well; my predecessors looked at this, but I would like to go a whole lot further". There is nothing anybody could do. He could do that.
I do not know whether that is what the Government have in mind; I am sure it is not. It is certainly not the fault of the noble Lord, Lord Monkswell, who has taken on this Bill from another place; but this Bill is very badly and dangerously drafted. It gives any government a power to change the Bill almost totally and do anything they wish with it. I believe that the Members of this Committee should not be satisfied by this. I am disappointed that the committee were not firmer with the Government. It seems to have been pressing for debate. I do not think that it is good enough.
A number of amendments stand in the name of my noble friend Lord Kimball. Perhaps the Minister could say whether the Government will consider the proposal in the final amendment. It would make a difference to how we debate the preceding amendments.

§ Lord Rees
I, too, apologise that I was unable to intervene in the debate on the Second Reading of the Bill. Having said that, I hope that I may not regard myself as disabled from making some perhaps rather stringent comments on the detail of the Bill.
Perhaps we may start on common ground: that there should be some statutory framework within which the sale, enjoyment and construction of fireworks should be confined. However, that should not disable us from a close and rigorous examination of the detail, in particular in the light of the Select Committee report. In my modest career in public life, I do not think that I have ever read a Select Committee's report which makes quite such damning criticisms of the drafting of a Bill. Indeed, in the final recommendation one notes that, The Committee draws the attention of the House to the more disturbing aspects of the wide ranging powers conferred by the Bill and invites the House to consider whether to seek Ministerial assurances about these. If Ministerial undertakings on all these points"— all the points raised by the Select Committee— are not forthcoming, the House may wish to consider whether amendment of the Bill is called for". I have no doubt that the noble Lord, Lord Monkswell, who is sponsoring the Bill is fully armed and prepared to deal with criticisms made by the Select Committee and those implicit in the numerous amendments set 559 down to the Bill. So perhaps one reserves one's fire a little until one has heard what the noble Lord has to say. But, in fairness, the noble Lord should be put on notice about our reservations on the Bill which amply justify the amendments put down for debate today. To demonstrate the quality of the amendments, it is interesting to note that every single amendment has been selected for debate.
I look all the time to the noble Lord, Lord Monkswell, for elucidation and assistance in order to understand what the Bill is about and how we are presented with such an extraordinarily slapdash Bill for our consideration. When the noble Lord responds, perhaps he will explain Clause 1(1)(b). It seems to suggest that any device which is intended as a form of entertainment can be regarded as a firework for the purposes of the Bill. I can only conclude that my blurred eye has not fully appreciated the significance of that. In his usual charming and clear way, perhaps the noble Lord will be able to enlighten me. Other noble Lords may have got to the bottom of it. Can the provision really mean that any device which is intended as a form of entertainment can be regarded as a firework? I cannot believe that. There must be something implicit in it. If so, I hope that the noble Lord will set my mind at rest.
Subsection (2) states: The Secretary of State may by regulations amend subsection (1)". Others of my noble friends more expert in matters of draftsmanship than I am have pointed out the extraordinary width of that provision. Again I hope that the noble Lord will explain it to us. Does the provision really mean that there is no further restriction on the Secretary of State's right: that he proceeds by negative resolution, and beyond that anything that comes into his mind as having some bearing on the framework of the Bill may be dealt with by negative resolution procedure? Taken at face value, subsection (2) will permit the Secretary of State to amend by regulation the very substance of the Bill. These are not just questions of detail or peripheral points. That cannot be right. That is a matter upon which we have touched in many other pieces of legislation. I hope that the noble Lord will apply his talents in explaining whether there are some restrictions which would make such wide-ranging powers acceptable to the Committee.

Lord Renton
I, too, support Amendments Nos. 2 and 3. Indeed, what I have to say applies with, I hope, equal force to Amendments Nos. 9, 10 and 16. Perhaps that will save me from speaking to them later.
I am sure that we are all in favour of doing more in our legislation to protect people, animals and property from the damaging effect of fireworks. Over the years too many people have been injured. But I have to say that the Bill is a classic outstanding example of how not to legislate. Indeed, it is an unprecedented leap into the unknown—unprecedented in peacetime. When emergency legislation was needed in wartime at short notice, power used to be given to a Minister. But in peacetime we do not legislate like that.
560 I invite attention in particular to the effect of doing so. Under Clause 11 we find that courts are given power to punish people for offences which are to be defined by regulation. They are not defined in the Bill. Until those regulations have been approved by Parliament, we shall not know for what it is that people will be punished. We do not legislate like that. In effect, we shall be giving power to the courts to punish the unknown.
The speech of my noble friend Lord Rees drew attention to the valuable work undertaken by our Delegated Powers and Deregulation Committee. I expect all noble Lords have read what the committee said. It has sometimes made exception in favour of a Henry VIII power where it is very limited. It has sometimes made exception in favour of giving power to Ministers to make regulations. But this Bill seems to me to be unprecedented, and not only in recent times. I have to confess to Members of the Committee—I am not ashamed to do so—that I have been at the Bar for 65 years and in Parliament for 53 years and I have never before seen a Bill quite like this.

§ Lord Henley
Like my noble friends Lord Renton and Lord Kimball, I accept that there is need for a degree of control over fireworks. That is why the Bill is before us. That is why we made it clear at Second Reading that we did not intend to oppose such a Bill. As we all know, too many people are injured every year by fireworks. It is right that there should be regulations of one kind or another to ensure their safety. However, like many of my noble friends, I have considerable concerns about aspects of the Bill. Perhaps I may address my remarks in particular to Clause 1(2). It is a clause which—dare I say it?—is the purest Henry VIII clause that I have ever seen. It gives the Secretary of State power, as my noble friends have made clear, to amend primary legislation; namely, in subsection (1) of the Bill.
I daresay that I might myself be guilty of having tried to press Henry VIII clauses on this place in the past. I accept that there are occasions when what we term Henry VIII clauses are necessary in legislation. However, I have considerable doubts, as I expressed at Second Reading, as to whether a Henry VIII power of this kind is right and proper in this Bill.
I viewed with some sadness the report of the Delegated Powers and Deregulation Committee. My noble friend Lord Rees thought that it was one of the most damning reports that he had ever seen. I have to say that I do not think it was in any way damning enough in that, in its recommendations, it in effect suggested to the House that such Henry VIII powers as we see in Clause 1(2) should be permitted. I say this much more in sorrow than in anger: it is sad that the delegated powers scrutiny committee should have so decided, and should have thought that a mere ministerial undertaking, as my noble friend Lord Astor referred to it, would be enough to reassure this place. I am certainly not reassured, and I doubt whether I shall be reassured by the remarks of the noble Lord, Lord Monkswell, who sponsored the Bill. I shall be interested to hear his response. I shall also be interested to hear the response 561 of the noble Lord, Lord Haskel, for the Government. We have to accept that this Bill is, to use a colloquial term, a hand-out Bill from the Department of Trade and Industry. It is therefore important that we hear precisely what it is that the department is able to offer by way of ministerial assurances. I hope that we shall hear a little more from the noble Lord, Lord Haskel.
I accept entirely the point made by my noble friend Lord Campbell of Alloway in relation to Amendment No. 13. I accept that that amendment is not grouped with this one. However, if the noble Lord, Lord Monkswell, or—dare I say it?—the noble Lord, Lord Haskel, is not prepared to accept these amendments, at the very least they ought to be prepared to accept Amendment No. 13 which we shall discuss later. It might be useful, certainly in view of the time that will be taken on this Bill, if they could address that question when responding to this amendment.
Having said that, I offer my support to this amendment. I am sad that the delegated powers scrutiny committee was not prepared to take a stronger line. In parenthesis may I say that I am grateful that in relation to the education Bill that we discussed earlier the committee has taken a much stronger line. I hope that it will take a strong line on all such uses of powers in the future and will bring them to the attention of this place. On those occasions when the committee does not do so in quite so strong a manner as we believe necessary, it is right that this place should express its concern and should decide accordingly.

§ Lord Haskel
Before I speak to the detailed amendments, perhaps I may congratulate the noble Lord, Lord Alexander, and his colleagues on the Select Committee on Delegated Powers and Deregulation on their thorough consideration of the provisions in the Bill.

Noble Lords
Hear, Hear.

§ Lord Haskel
Having set the right tone, let me say that the committee identified several issues to which it thought it right to draw the attention of the House. We agree with the committee. At the end of this debate I will respond to those issues. I hope that the assurances I shall give will be acceptable to the Committee. The noble Lord, Lord Campbell, may find those assurances unacceptable. However, I think that noble Lords will find that the ministerial undertakings are couched in such a way as to satisfy the Select Committee.
Perhaps I may say to the noble Viscount, Lord Astor, that assurances are given by the Government and do not become void when the Minister changes.

Viscount Astor
What happens when there is a change of government? Surely they become void then.

§ Lord Haskel
That is a long way away.
The Select Committee specifically looked at whether there should be wide powers. It concluded that, given the special problems posed by fireworks, it is 562 appropriate, subject to explanations as to how the powers were expected to be exercised. I shall give those explanations.
Some noble Lords have suggested that these powers are unprecedented. The fact is that when dealing with these technical issues it has been thought right to use wide secondary powers. The best example is the Consumer Protection Act 1987, introduced by the previous administration.
I now turn in a little more detail to the specific amendments. The amendments on Clause 1 concern the definition of "fireworks". The noble Lord, Lord Kimball, seeks to ensure that the Secretary of State cannot amend that definition. As noble Lords have pointed out, the powers in Clause 1(2) of the Bill for the Secretary of State to amend the definition of "fireworks" are also referred to in paragraph 7 of the Select Committee's report. The noble Lord, Lord Rees, asked for assurances. I am happy to confirm that this is indeed a power that we should expect to exercise only narrowly to make marginal adjustments to reflect the understanding at the time of what a firework is.

§ Lord Campbell of Alloway
I am obliged to the noble Lord for giving way. Does he not realise that that is so much—I was about to say waffle. It is meaningless. It has no legal protection or efficacy whatsoever.

§ Lord Haskel
I think assurances given by the Government carry a lot of protection.

§ Lord Campbell of Alloway
Not at all.

§ Lord Haskel
As I said, I assure your Lordships that this power would be used only in the most restricted circumstances. Such circumstances would arise if it became clear that the definition of fireworks included in any future British standard was defective for UK legislative purposes, or new types of firework, perhaps with types of composition not catered for in the British standard, became available.
We need to ensure that the Bill can deal with new types of firework which may be developed in the future. Naturally, in exercising any such power we should be constrained by the need to stay within what the ordinary person would regard as a firework.
For the sake of clarity, let me tell the Committee what is the definition of "firework" in Clause 1. The definition, according to the current British standard, is: a device containing explosive composition which, upon functioning, will burn and/or explode to produce a visual or aural effect or a combination of such effects, intended as a form of entertainment".

§ Lord Mancroft
Perhaps the noble Lord will be kind enough to give way. I note that the Bill quotes the date as 30th November 1988 when this British standard specification came in. I wonder whether, by way of illustration for the Committee, the noble Lord can say how many fireworks have been introduced in the 10-year period from then to now which would not have fitted into that definition. I think that most noble Lords would have a pretty good idea of what a firework was 563 if they saw one or heard it go bang, or whatever it may do. If we are unable to define a firework that simply, surely this definition will not fit the bill. If we can define a firework, then it is completely unnecessary.

§ Lord Haskel
I am unable to respond to the noble Lord's question. We shall have to do some research. I do not have that information in front of me.
I have to say to the noble Lord, Lord Rees, who raised the question of what is a firework, that it is also important that we can deal with devices such as birdscarers and marine flares, which can be misused if they fall into the wrong hands. A power is needed to adjust this aspect of the definition if it becomes apparent that there is loophole which can be exploited. It is this exploitation of loopholes which is the concern of the Government. I can assure the Committee again that the power will be used only in those circumstances.
It may also be helpful if I comment here on the similar powers to alter the definition of "explosives" in Clause 14(3), on which the Select Committee also commented. The Clause 14 powers arise because of our desire to be able to stay in step with the changes likely to be made to the Explosives Act 1875 under the powers given by the Health and Safety at Work etc. Act 1974. I believe that ultimately we should aim to replace the 1875 Act altogether. Explosives have changed somewhat in the past 120 years. Most of the provisions concern safety at work, but some involve issues of public safety which go beyond the 1974 Act. I can assure the Committee that the powers to amend that definition are there only to ensure that we have the same ability to respond to changes in the kind of explosives where we need such controls.
There is also a "technical" reason for the power. If the 1875 Act is replaced in due course by a single set of regulations with a single definition of "explosives" which re-enacts the definition in the 1875 Act, that definition will apply automatically for the purposes of the Bill. But if the single definition is a substantially modified one or, if there are several definitions, it may be unclear which definition applies to the Bill. As a result, we may need to amend the definition in the Bill to make sure that we have the right one for the Bill's limited purposes.
I hope that that explanation and the assurances I have given will he acceptable to Members of the Committee and that they will feel that these amendments are unnecessary.

§ Lord Rees
Before the Minister sits down, he has been courteous in referring to the points we have made, but he did not refer to the second point I made on the definition in and application of subsection (1)(b). I do not wish to weary the Committee, but it looks to me as though Clause 1(1) provides two alternative definitions, as devices which are fireworks for … the British Standard Specification … or", in the alternative, would be fireworks for those purposes if they were intended as a form of entertainment". 564 Perhaps I did not make the point with sufficient clarity. Perhaps the Minister could explain to me. It surely must be possible to have something closer than that. It cannot mean any device that is intended as a form of entertainment. Can the Minister reassure me and perhaps other Members of the Committee about the application of subsection (1)(b)?

§ Lord Haskel
I believe that the word "purposes" in subsection (1)(b) refers back to the purposes in subsection (1)(a), which says: for the purposes of the British Standard Specification relating to fireworks published on 30th November 1998 …

§ Lord Rees
I apologise to the Committee and to the noble Lord the Minister. If the Minister reads the clause again slowly, he will see: (1) In this Act 'fireworks' means devices which— (a) are fireworks for the purposes of the British Standard Specification … That one can understand; "or", in the alternative, (b) would be fireworks for those purposes if they were intended as a form of entertainment". I should be most grateful if the Minister could explain what further limitation must be read into that to make certain that it does not apply to any device which is intended as a form of entertainment.

§ Lord Haskel
It is the same test as in the British Standard Specification. I read the definition contained in that specification to the noble Lord. The fireworks referred to in subsection (1)(b) have the same definition as those referred to in subsection (1)(a).

Viscount Astor
If subsection (1)(a) is the same as subsection (1)(b), why do we need both? Why can we not have just subsection (1)(a)?

§ Lord Gisborough
When I was young there used to be a little game where one would put a match into a matchbox and hold another match against it; you would light both and they stuck together. That was for entertainment. Would those be fireworks?

§ Lord Haskel
I am not an expert on these matters and I cannot respond to that question.

Lord Renton
Will the noble Lord the Minister be so good as to give us even a broad idea of what is included in the word "entertainment"? Should it not be defined in the Bill? In some kinds of legislation it is carefully defined. Here it is used in the broadest possible sense. I believe that there should be a definition.

§ Lord Haskel
I believe that the definition of entertainment is fairly well known and obvious.

Viscount Astor
I apologise for rising again. I believe that the Minister said that the definition in subsection (1)(b) is the same as that in subsection (1)(a). In that case, why do we need the two? The Minister would help 565 the Committee if he could explain the differences between subsections (1)(a) and (1)(b) and what they refer to.

§ Lord Haskel
Subsections (1)(a) and (1)(b) are not alternatives. "Fireworks" means devices within the definition in the British Standard and devices which would be fireworks if they were intended as a form of entertainment. Both of those things are fireworks as defined.

§ Lord Monkswell
It may be helpful if at this stage I intervene to try to wrap up this very interesting debate. The noble Lord, Lord Kimball, moved his amendment in an admirably brief way, and, bearing in mind the time constraints on the Committee stage, that was very good of him. We have had an interesting and useful debate. Members on the Opposition Benches have demonstrated the Committee at its best in raising issues of considerable public concern about the way in which we frame legislation. I shall try to offer some reassurances, as the promoter of the Bill in this place, as to the way it is envisaged the Bill will work.
I make particular reference to the remarks of the noble Lord, Lord Campbell of Alloway, who was very concerned about the regulation-making powers in the Bill. I would describe them in two ways. First, there are the Henry VIII provisions in Clauses 1 and 14. Secondly, the other regulation-making provisions are almost a straight copy from the Consumer Protection Act and are fairly usual and normal in the course of parliamentary procedure and deliberations on public Bills.
I believe that the reference to the Henry VIII provisions in Clauses 1 and 14 was appreciated by the Delegated Powers and Deregulation Committee and there was a recognition by that committee that fireworks are a special case. The very fact that we have the Bill in front of us is a testament to that. Previous legislation has not provided enough powers for Ministers to ensure absolute safety for the public in terms of the use of fireworks.
The provisions in Clauses 1 and 14 are tightly prescribed in terms of the Minister's ability, by regulation, to change the definition of "fireworks". For example, bird scarers may not be explosive in their make-up but they may make a loud bang. If they were used as forms of entertainment, they would come under Clause 1(b). Another factor is the ability to change the definition of "fireworks" if circumstances change. Bearing in mind that we are now part of the European Union, the British standard and subsequent amended versions of it will become a European standard. That definition of "fireworks" will become a European definition which may not be relevant for our specific UK situation. The provision gives the Government the power to amend the situation to cover that.
We received ministerial assurances which, as was pointed out, are government assurances. One hopes that they will satisfy the Committee. I am sure that they will satisfy the aspirations of the Delegated Powers and Deregulation Committee.
566 Perhaps I can make one final point. We have had an interesting debate in relation to these important issues. It is my intention, as the Committee stage progresses, to leave ministerial assurances, as requested by the Delegated Powers and Deregulation Committee, to the Minister. It is not in my power to give those assurances and there may be other amendments where I shall want to speak at greater length. Bearing in mind the assurances that were given and the explanation I attempted to give to Members of the Committee, I hope that the noble Lord, Lord Kimball, will withdraw his amendment.

§ Lord Henley
Before the noble Lord sits down and my noble friend Lord Kimball responds, perhaps I can make one point. The noble Lord, Lord Monkswell, talked of addressing the concerns of the Delegated Powers and Deregulation Committee. I am not particularly interested in addressing those concerns. We need to address the concerns of the Committee itself.
We spoke to Amendments Nos. 1 and 2. But a number of Members of the Committee, including my noble friend Lord Campbell of Alloway, referred to Amendment No. 13 as a second best if the noble Lord was not prepared to accept the proposal concerning subsection (2) which removes the first of the Henry VIII powers. Will the noble Lord, Lord Monkswell, address the anxieties raised by my noble friend Lord Campbell and say whether he is prepared to accept Amendment No. 13. I say that in an attempt to expedite the business of the Committee bearing in mind the time constraints under which we are working.

§ Lord Monkswell
Amendment No. 13 was referred to, and there may seem to be a linkage. Bearing in mind that we have not debated that amendment specifically and that it has only been referred to in passing, I shall be arguing fairly strenuously against it and will give reasons for that. I had it in mind to wait until the debate on the amendment so that other Members of the Committee wishing to speak specifically to it could make a contribution. In that way, I would be able to respond more sensibly instead of having two separate debates. That would be more logical.

§ Lord Kimball
I do not want to be ungrateful or discourteous to the noble Lord, Lord Haskel, who attempted to wind up the debate. However, I must say clearly and categorically that he gave the Committee no proper form of assurance in response to the points raised by Members of the Committee on my left.
This is an extremely serious matter and one we shall have to pursue at Report stage. There was one moment when I thought that we were going to make some progress. The noble Lord, Lord Haskel, used the words, amend the definition in the Bill". I sincerely hope that that was a categorical undertaking and that when he returns at Report stage the definitions referred to in Amendment No. 1 will be clearly written into the Bill.
567 I am distressed by the attitude of the noble Lord, Lord Monkswell. He comes here and says, "I shall be guided by the Government." This Bill has nothing to do with the Government; I do not know what he is talking about. This is a private Member's Bill that went through the other place. It was the idea of a private Member who was concerned about the dealings with fireworks. The noble Lord says that it is a government Bill; that is not true. The truth is that it is a private Member's Bill and it is up to the noble Lord to make up his own mind about it.

§ Lord Monkswell
I am grateful to the noble Lord, Lord Kimball, for giving way. If I gave the impression that I was taking instructions from the Government, I utterly withdraw it. That is not the situation.
My point was that the Delegated Powers and Deregulation Committee had advised us to consider that in certain measure government assurances about the way the Bill would be implemented should be satisfactory. The point I made earlier was that, where it was applicable for the Minister to give those assurances, it would not be for me to speak at length on assurances that I could give as a sponsor of this private Member's measure and I shall probably speak briefly. It was not my intention to convey to the Committee that I am taking instructions from the Government on this or—dare I say?—on any other measure.

§ Lord Kimball
I accept the noble Lord's interpretation and we fully understand it. However, he gave the impression that it was a government Bill, which it certainly is not.
It is perfectly clear that we shall have to return to both these amendments on Report. I beg leave to withdraw the amendment, but give notice that we shall see these matters again at the next stage.

§ Lord Kimball
moved Amendment No. 3: Page 1, line 20, leave out ("any provision which") and insert ("such provision under this Act as"). The noble Lord said: This is a simple amendment. I hope that the noble Lord, Lord Monkswell, will speed up the process by telling us that he is prepared to accept it. With that in mind, I shall speak to it briefly.
The amendment aims to keep any provisions closely tied to the spirit and intent of the Bill in order for it to continue to successfully secure its purpose. I beg to move.

§ Lord Haskel
I must make clear that while the wording of the clause provides basic powers, there is no intention that those powers shall be used in trivial circumstances. The fact that the consultation process is a statutory one, that the Government are expected to publish four regulatory appraisals before making new regulations, and that regulations have to pass the 568 scrutiny committee's procedures and the possibility of a negative resolution debate, means that we simply will not be able to use these powers for trivial reasons.
I thank my noble friend Lord Monkswell for accepting the assurances of the Government. I hope that Members of the Committee opposite will also accept our assurances in which case the amendment is not necessary.

§ Lord Henley
This is a small amendment. I do not know what the noble Lord, Lord Monkswell, will say, but I cannot understand why the Government want to resist it.
The words "any provision which" are rather wide and, as my noble friend suggests, it may be more appropriate to limit it to, such provision under this Act as", which appropriately limits what the Secretary of State can do.

§ Lord Monkswell
Perhaps I may suggest a quite significant reason for the Committee rejecting this amendment. If it were passed, as I understand it, it would suggest that the only regulations that the Minister could promulgate were those that were directly related to firework safety. That would be the way in which it would be construed, I suspect, by the judiciary.
The concern I have is that there are what one might describe as ancillary provisions which might not be specifically to do with safety. I think in terms of the insurance provision to be found later on, where the fact that somebody has insurance does not make things any safer. That is the risk of amending the Bill as the noble Lord, Lord Kimball, has suggested. Therefore, I would strenuously ask him to withdraw the amendment.

§ Lord Rees
The noble Lord, Lord Monkswell, has alarmed me hugely. It is only amendments to the Bill that relate in the broad sense and one would think that in the broad sense questions of fireworks safety would be permissible. It seems from the noble Lord's intervention, that, for example, matters of insurance law come into this. I agree there is a reference to insurance but it is insurance only in so far as it relates to providing some kind of, presumably, financial compensation for those who might be affected by a firework going off in their face, or something like that.
It is not enough to say, "That is not firework safety", but it is; and it should be; and it rightly should be. I have always understood, having looked at the Bill, that it is primarily directed at the safety of people exposed to fireworks. If the noble Lord, no doubt supported by his noble friend the Minister, says that there are other matters and that the department has to consider the broad spectrum, we ought to be told in a little more detail what kind of matters, although not directly concerned with fireworks safety, are likely to be covered by Clause 2 if not amended in the way in which my noble friend suggests.

§ Lord Mancroft
Perhaps I may go further than my noble friend Lord Rees. The noble Lord, 569 Lord Monkswell, used the example of insurance. My understanding is that that would be covered by the amendment. My noble friend Lord Kimball's amendment uses the words, such provision under this Act but insurance is a provision under this Bill so it would be covered.
The question is which provision outside this Bill might be used that we do not know about? The example of the noble Lord, Lord Monkswell, has made my noble friend's point for him.

§ Lord Monkswell
I apologise if I have misled the Committee in referring to insurance. My understanding is that the amendment is not necessary in terms of the structure of the Bill. Therefore, I would ask the noble Lord to withdraw it.

§ Lord Kimball
I am afraid that the noble Lord, Lord Monkswell, has not satisfied the concerns which lie behind the amendment. At this stage in our proceedings I think the proper thing for me to do is to take the amendment away and consider the matter again but I must give the noble Lord notice that our concerns have not in any way been laid to rest and we shall wish to return to this amendment on Report. Against that background, I beg leave to withdraw this amendment.

§ Lord Kimball
moved Amendment No. 4: Page 1, line 23, leave out ("no risk, or"). The noble Lord said: This amendment deals with a delicate subject, perhaps the most delicate area of the Bill. It seeks to remove the superfluous "no risk" which is at the moment written into the Bill. The words "no risk" conflict with the minimum risk in this case. Furthermore, it is not reasonable that any activity can be seen as completely free of risk, least of all when considering the safe use of fireworks.

§ Lord Haskel
The effect of the amendment would be to enable the Secretary of State to make regulations only to reduce the risk from the use of fireworks, but not to eliminate it altogether. This would in turn arguably deprive the Secretary of State of the power to make regulations prohibiting completely the supply, purchase, possession or use of very dangerous fireworks. I do not believe that this is desirable. I am sure that that is not the intention of the noble Lord. I hope that he will be able to withdraw the amendment.

Viscount Astor
If one follows the logic of this argument one could say that on that basis the Secretary of State could claim that any firework was a risk. After all, a sparkler might be a risk if you do the wrong thing. Following that analogy, the power could be used to remove fireworks totally from this country.

§ Lord Haskel
Perhaps I may remind the noble Viscount of what I said previously. I must make it clear 570 that there is no intention that the power should be used in trivial circumstances. What the noble Viscount has described I would consider trivial circumstances.

Viscount Astor
What is "trivial"? "Trivial" is not in the Bill. We are attempting in this Committee to pass a Bill that might become an Act and could become law. I defer on the legal points to my noble friends on my left. I cannot believe that we can gallop through this in this extraordinary manner by the Minister saying, "Do not worry, we will decide what to do in the future". I do not think this is what Parliament or the Committee stage is for.

Lord Renton
If fireworks are used safely then there is only a minimal risk. There is no need to say also that they are used safely when there is no risk. It is a very small drafting point, but it seems to me that the words "no risk, or" are, from a purely drafting point of view, unnecessary.

§ Lord Gisborough
If the Secretary of State failed to ban, for example, sparklers, and a sparkler committed damage to somebody, would there not be a case against the Secretary of State for damages because there had been a risk and he was under an obligation to deal with it because he is not allowed to have any risk?

§ Lord Monkswell
Perhaps I may intervene. It seems to me that a number of noble Lords are contributing who were not present for the Second Reading debate when it was made clear by me, as a sponsor of the Bill, repeating assurances given by the honourable Member who introduced this Private Member's Bill in the other place, that it was not part of our aim to restrict people's enjoyment of fireworks. Our primary concern relates to dangerous fireworks. One of the salient points about the Bill is that it seeks to ensure that we get some training provision in the use of particularly dangerous fireworks.
I hope that we shall hear no more about the Government planning to ban sparklers. This is not part of the agenda at all.

§ Lord Henley
The reason we are going through the Committee stage in this manner is that many noble Lords, whether or not they took part in the Second Reading debate—as noble Lords will be aware, I did take part in the Second Reading debate—have considerable concerns about the drafting of the Bill. That is why my noble friend is moving amendments of this kind. We are worried about the powers that the Bill gives the Secretary of State. A Secretary of State who has a slightly different attitude to fireworks from that of the noble Lord could take things a lot further than the noble Lord or the Minister has suggested.

§ Lord Monkswell
Perhaps I may make two points in response. Yes, it is important that we scrutinise the Bill carefully, but the assurances given by the sponsor of the Bill in the other place and by myself were reiterated by the Minister in the other place and by the Front Bench spokesman at Second Reading.
571 With regard to the amendment, I must repeat the point made by my noble friend on the Front Bench because I fear that the amendment would result in a lack of clarity. There is a risk of judicial review striking down some of the provisions which the Secretary of State might make which were specific rather than merely tending to reduce the risk. That is our concern. What may appear to be a simple drafting amendment may turn out to have unwarranted consequential effects.

§ Lord Mancroft
I was not present at Second Reading, but I have read the report of the Second Reading debate carefully, and particularly the noble Lord's speech. Indeed, it would have been wrong to speak today in Committee without having done so.
I should very much like to see the Bill on the statute book but, as we have gone through this Committee stage—it seems like a lifetime—it has become increasingly clear to me that the Bill is a frightful muddle. I believe that that is clear to the Committee as a whole. I listened carefully to what the noble Lord said about this small amendment relating to the words "no risk" and why they should or should not be in the Bill. I also listened carefully to what the noble Lord on the Front Bench said but, from where I am sitting, the explanations do not make any sense at all. I am concerned because it is just not possible to use fireworks with "no risk" at all. Leaving the Bill as it stands puts the enjoyment of fireworks—the other side of the coin—itself at risk. It would be virtually impossible to have a firework party without any risk.
We need to try to strike a balance because, if we do not achieve a balance in the Bill, it cannot get onto the statute book. We must find that middle road. During the past few minutes, it has become increasingly clear that the Bill is not correctly drafted and that it cannot go forward onto the statute book in this state. I refer not so much to what the noble Lord, Lord Monkswell, said—I could understand and see what he was getting at—but to the explanation for not accepting the amendment which came from his noble friend on the Front Bench. I shall read the noble Lord's words carefully tomorrow in Hansard, but to me they were absolutely illogical. I simply could not see what he was getting at. It seems to me that the amendment improves the Bill, which is what we are after.

§ Lord Kimball
The noble Lord, Lord Monkswell, was kind enough to say that, in moving these amendments, we have done everything possible to facilitate the passage of the Bill. We have moved them all briskly. However, we are now running out of the time allocated to us and we have managed to cover only four amendments. That emphasises the genuine concern on this side of the Committee and the failure of the noble Lord, Lord Monkswell, to accept any of our amendments. We shall have to return to this but, for the moment, I beg leave to withdraw the amendment.

§ Lord Boardman
moved Amendment No. 5: Page 2, line 1, leave out ("or distress"). The noble Lord said: This amendment stands in my name and that of the noble Lord, Lord Kimball. It deals with a small point, but I must remind the Committee that it comes against the background to the Bill that we debated earlier. The Secretary of State may make regulations and those regulations may impose almost any penalty for almost any conduct relating to anything which might be even remotely connected to fireworks or whatever other objects are referred to as "like fireworks". The penalties can amount to six months' imprisonment. Although my amendment is small, it must be viewed against the larger implications of the Bill.
The amendment seeks to leave out the words "or distress" from Clause 2. It relates to distress caused to animals. I accept, of course, that anything that causes the death of, or injury to, an animal, is to be deplored. It is right that the Secretary of State should make regulations about that. However, distress is a different matter. "Distress" cannot easily be defined. Many animals suffer distress when fireworks go off or, indeed, when there are bangs from whatever cause. Anyone who has any care for animals ensures that on those occasions when they know that fireworks will be let off, such as 5th November, animals are brought indoors. I have a dog that goes under the table and I make sure that the curtains are drawn. I agree that the animals are not entirely happy at the time although they are fine afterwards. However, it would be wrong to make holding a firework party a criminal offence. It would enable animal rights campaigners to require prosecutions to be brought against anyone with a dog in such circumstances.
In the village where I live, the Bill, if unamended, would mean that it would be impossible to have any fireworks parties at any time, including on 5th November, because of the danger that some dogs, including one of mine, could be said to have suffered "distress". The passing of this provision would mean that firework displays would be banned and that a dog owner would suffer the possibility of severe penalties which, although ill defined in this Bill and left to regulations, could include six months' imprisonment. I hope that the words "or distress" can be struck from the Bill. I beg to move.

§ Lord Henley
I rise briefly to offer my support to the amendment. The words "or distress" go too far. Indeed, it is not clear what the phrase might mean. It might be that the noble and learned Lord the Lord Advocate, who has been offering a degree of legal advice to the noble Lord, Lord Haskel, might be able to offer some advice either directly to the Committee or indirectly through the noble Lord, Lord Haskel, about what the words "or distress" mean and whether there have been any previous court decisions, either in this country or north of the Border, which can guide us about how the courts might interpret those words. I did not like them when 573 I read them in the Bill because I believe that they go too far. I hope that the noble Lord, Lord Monkswell, will be prepared to accept at least this amendment.

§ Lord Monkswell
I can address this amendment briefly. One of the flaws, if I may put it like that, of current consumer safety legislation is that the distress caused to animals, or the issue of their welfare, cannot be taken into account. I am sure that noble Lords opposite will recognise that that flaw needs to be rectified.
Perhaps I may give the Committee one example of "distress" which falls short of death or injury to an animal. I refer to spontaneous abortions by sheep as a result of the antisocial use of fireworks. Although that may not cause injury to the sheep, I am sure that noble Lords will recognise that spontaneous abortions result from distress suffered by the animal and that that should be prevented wherever possible. I remind the Committee that the aim of this Bill is not to constrain the legitimate and sensible use of fireworks; it is to prevent their antisocial and wrong use.

§ Lord Annaly
I was not present for the Second Reading, but I feel bound to say something now in support of this amendment. Perhaps I may quote an example from my village. A firework party is held on 5th November just behind the yard in which I keep some ponies. I tend to move the ponies into the stable when I am tipped the wink that there will be a firework party because, inevitably, they are on edge. But should I not be there, are the people holding the firework party at fault if my ponies move around the yard, become nervous and get up a sweat? Would it be classed that the animals are "in distress"? Some people might argue that they would be. Perhaps I may refer to the example which the noble Lord used about abortions in sheep. Because his sheep abort somewhere around 5th November when fireworks are going off, a farmer may blame it on the people holding the firework party. I do not see how one can prove that unless the fireworks are being let off in the field where the sheep are. I am not a lawyer, but I am sure that any lawyer would say that these words should not be in the Bill. The noble Lord ought to take that on board and agree to the amendment.

§ Lord Monkswell
The noble Lord makes my case. Responsible people will let their neighbours know when firework displays are to take place so that the animals can be looked after.

§ Lord Boardman
Can the noble Lord, Lord Monkswell, say what would happen to the sheep which are due to lamb and are in danger? Will one have to take them in doors and shut them up?
I am very disappointed that the noble Lord did not accept this amendment, which is very small, reasonable and essential, particularly as so many of the penalties in the Bill are so onerous and unfair. I take the same view as the noble Lord, Lord Kimball, as regards an earlier amendment. I am sure that we shall have to come back to this matter again on Report. That being noted, I beg leave to withdraw the amendment.

§ Lord Carter
Clearly, this is a matter to which the House will have to return in Committee. I am still confused about the ewe which is tupped in the third week of October and there is a spontaneous abortion on 5th November. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.