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Royal Parks (Trading) Bill

These notes refer to the Royal Parks (Trading) Bill as introduced in the House of Commons on 10th June 1999 [Bill 116] Royal Parks (Trading) Bill EXPLANATORY NOTES INTRODUCTION 1.     These Explanatory Notes relate to the Royal Parks (Trading) Bill as introduced in the House of Commons on 10th June 1999. They have been provided by the Department for Culture, Media and Sport, with the consent of Mr Peter Brooke, the Member in charge of the Bill, in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2.     These notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given. SUMMARY 3.     The Bill increases the maximum penalty for offences of illegal trading in the Royal Parks and certain other open spaces within the scope of the Parks Regulation Act 1872 as extended by the Parks Regulation (Amendment) Act 1926. It also provides for the seizure by park constables of things used in the commission of such offences, for the purpose of interrupting and preventing further illegal trading activity. Things so seized may be retained by the Secretary of State pending the outcome of proceedings for the offence. Lastly, if a person is convicted of an offence of illegal trading the Bill gives the court the discretion to order forfeiture of any things seized, subject to its consideration of the value of the things in question, and the likely effects of forfeiture and to the right of the owner of the things to make representations. BACKGROUND 4.     At present, it is illegal, without the prior written permission of the Secretary of State, to carry on any trade or business, or to offer anything for sale or hire, or to possess or expose anything for sale or hire in any of the Royal Parks or in certain other open spaces within the scope of the Parks Regulation Act 1872 as extended by the Parks Regulation (Amendment) Act 1926. 5.     The maximum penalty for carrying out any of the above activities in those areas without written permission is a fine at level 1 on the standard scale (at present, £200). 6.     There are at present no legal powers for park constables to seize items used in connection with these offences. If a person is convicted of such an offence, the Magistrates' Court hearing the matter has no power to order forfeiture of such items. 7.     The absence of powers of seizure and forfeiture contrasts (particularly in the case of the Royal Parks and open spaces in the City of Westminster) with powers exercisable by local authorities in surrounding streets. The City of Westminster Act 1999 gives Westminster City Council powers of seizure, and courts the power of forfeiture, with respect to things used in connection with street trading offences. Powers of this type first became available to Westminster by way of section 38 of the London Local Authorities Act 1990, which was amended by the London Local Authorities Act 1994. 8.     The intention of the Bill is to create powers for the Royal Parks and other open spaces which are broadly comparable to the local authority powers with respect to street traders. THE BILL 9.     The Bill covers: the increase in penalty for offences of illegal trading in the Royal Parks and other open spaces; the power of seizure; retention and disposal of things seized; and forfeiture of things seized. Provision is also made for: definitions of "park trading regulation" and "park trading offence"; and the liability of officers for offences committed by bodies corporate. COMMENTARY ON CLAUSES 10.     The relevant legislation is the Parks Regulation Act 1872, sections 1 and 2(1) of the Parks Regulation (Amendment) Act 1926, and the Royal Parks and Other Open Spaces Regulations 1997 (S.I. 1997/1639). Section 2(1) of the 1926 Act allows the Commissioners of Works (now the Secretary of State for Culture, Media and Sport) to make such regulations as are considered necessary for securing the proper management of any park to which the 1872 Act, as extended by the 1926 Act applies, and for the preservation of order and prevention of abuses therein. The 1997 Regulations were made in reliance upon this provision. Regulation 4(6) of those regulations states: "4. Unless the Secretary of State's written permission has first been obtained, no person using a Park shall- ... (6) carry on any trade or business in a Park, offer anything for sale or hire or expose or have in his possession anything for the purpose of sale or hire therein;". Clause 1: Park trading offences Subclause (1) expands the scope of the power to make regulations under section 2(1) of the 1926 Act so as to permit the Commissioners of Works (now the Secretary of State for Culture, Media and Sport) to designate particular provisions of the regulations as "park trading regulations". Subclause (2) provides that failure to comply with, or contravention of a park trading regulation is a "park trading offence" for the purposes of the Bill. Clause 2: Maximum penalty Clause 2 provides that in the case of park trading offences, the maximum penalty under section 2(1) of the 1926 Act (failure to comply with, or contravention of regulations made under section 2(1)) shall be a penalty not exceeding level 3 on the standard scale (at present £1,000). Clause 3: Offences by bodies corporate etc. In a case where a park trading offence is committed by a body corporate, and a director, manager, secretary etc, or any person purporting to act in such capacity is proved to have consented to, connived at or caused by neglect the commission of the offence, that person will be guilty of the offence as well as the body corporate. Clause 4: Seizure of property This clause creates the power of seizure. Subclause (1) requires a park constable reasonably to suspect that a person has committed a park trading offence before the power of seizure is exercisable. Subclause (2) adds that a park constable may only exercise the power of seizure in the park where he has jurisdiction. If the above conditions are met, the balance of subclause (1) gives a park constable the discretion to seize anything which the person has in his possession or under his control and which the constable reasonably believes to have been used in the commission of a park trading offence. The scope of the seizure power only extends to things of a non-perishable nature. Clause 5: Retention and disposal Subclause (1) allows the Secretary of State to retain anything seized pursuant to clause 4 until the end of the period of 28 days beginning with the date of the seizure. Subclauses (2) - (4) specify the circumstances in which the Secretary of State may retain seized things beyond the 28 day period. This may only occur if proceedings for a park trading offence have been commenced against the person from whom the things were seized in respect of his activities at the time of the seizure. If such proceedings have not been commenced within the 28 day period the power of retention no longer applies. If proceedings have been commenced within the 28 days, the Secretary of State may retain the things seized until the conclusion of the proceedings (including any appeal). If costs in such proceedings are awarded to the Secretary of State, he may continue to retain the things seized until the costs award is paid in full. These powers of retention are subject to any order for forfeiture of the things seized made under clause 6. Subclauses (5)-(7) provide that if an award of costs in the Secretary of State's favour is not paid in full within a further 28 days following the conclusion of court proceedings, the Secretary of State may sell the things at the best price that can reasonably be obtained and pay any balance to the person he believes to have been their owner immediately before the sale. In addition, things seized must be returned to the person the Secretary of State believes to be their owner if the Secretary of State is no longer entitled to retain them under the terms of the Bill, subject to any order for forfeiture that might be made under clause 6. If the Secretary of State cannot after reasonable inquiry identify the owner or former owner he must apply to a magistrates' court for directions. On such an application, the court must make an order about the treatment of the thing in question, or the balance of the sale proceeds. Clause 6: Forfeiture This clause applies when a person has been convicted of a park trading offence. In accordance with subclauses (1) and (2), the court by which he was convicted may order forfeiture of anything which was seized under clause 4, is being retained by the Secretary of State under clause 5, and which the court believes to have been used in the commission of the offence. Before making such an order the court is required by subclause (3)(a) to permit anyone who claims to be its owner or to have an interest in it to make representations. The court must also consider the value of the thing in question and the likely consequences of forfeiture: subclause (3)(b). EFFECTS OF THE BILL ON PUBLIC SECTOR FINANCES 11.     None are expected. EFFECTS OF THE BILL ON PUBLIC SERVICE MANPOWER 12.     None are expected. BUSINESS COMPLIANCE COST ASSESSMENT 13.     There will be no cost to lawful businesses. COMMENCEMENT 14.     The bill will come into force on the date of Royal Assent.