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Mr. Maclean: My right hon. Friend is, as usual, correct. The only difference is that the penalty specified in the 1872 Act and in the Parks Regulation (Amendment) Act 1926--extremely good reading, which I am sure you will wish to peruse once you have vacated the Chair, Mr. Deputy Speaker--was £5. We have just heard from a distinguished parliamentarian, the right hon. Member for Ashton-under-Lyne, whom, as a former Chairman of the Public Accounts Committee, we can expect to be able to do his sums, that the ratio to allow for inflation between pre-war legislation and that of today should be 40:1. The pre-war penalty of £5 should therefore be upgraded to £200, which, it so happens, it already is. Yet the Minister proposes to increase that penalty fivefold to £1,000. That may be the right amount to deal with the evil or mischief--whatever it may be--of offensive odour or offensive profit-making by person or persons unknown.
Mr. Michael Fabricant (Lichfield): I apologise for not having heard the opening speeches. I was involved in a Greater London Authority statutory instrument Committee with my hon. Friend the Member for Hexham (Mr. Atkinson). May I correct a misapprehension that these matters stem back to the 1872 Act? In fact, they go back to the Crown Lands Act 1702.
With regard to photography, is Parliament square considered to be a royal park? Recently, there was a dispute between the Metropolitan police and the parks police over those of us who visited Winnie the pig in her valiant fight for British pig farming. Was I committing an offence by going there?
Mr. Deputy Speaker: Order. Those matters are not before us. Where parks are located has nothing to do with the narrow amendment before us.
Mr. Maclean: I was attempting to confine myself narrowly to the amendment, Mr. Deputy Speaker, and was not going to be led slightly astray by my hon. Friend. I am slightly surprised that he has not studied the second schedule to the Royal Parks and Gardens Act 1872, which lists the royal parks. If he cares to reach behind him, I shall allow him to study it briefly in order to educate him in that regard. I can assure him that Parliament square is not, in fact, included.
Mr. Fallon: It may be for the convenience of my right hon. Friend if he notes that the second schedule to the
1872 Act, and indeed the first schedule, to which my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) referred, were, sadly, repealed by the 1926 Act.
Mr. Deputy Speaker: Order. I must keep the House to the amendments before us. The matters being raised may have something to do with the Bill, but we are currently debating the amendments tabled by the right hon. Members for Penrith and The Border (Mr. Maclean) and for Bromley and Chislehurst (Mr. Forth).
5.30 pm
Mr. Maclean: I am grateful, as ever, for your protection, Mr. Deputy Speaker. I wish to bring my remarks to a conclusion.
Mr. Gerald Howarth: I am not clear whether I have sufficient information about what my right hon. Friend proposes. He is proposing a fine of £500. He talked about the income of rogue traders. Is there any evidence, from prosecutions under the City of Westminster Act 1999, about what level of fines was imposed? We know that there is a maximum fine of £1,000.
Perhaps the Bill should provide for variable fines, depending on which park was concerned. After all, those who trade in Richmond park will not be able to command the same fees for their burgers or ice creams as people trading in St. James's park, who have the whole Japanese and American tourist market available?
Mr. Maclean: My hon. Friend makes a valid point. It brings me nicely back to sentencing principles, the point on which I wanted to conclude. If a person is found guilty before the court and the court is trying to assess, as the sentencing principles suggest, the gravity of the offence, having regard to the circumstances and to any mitigation, it will have to take into account where the offence was committed. Was it way out in Richmond park or was it in Hyde park or St. James's?
There is also a sentencing principle that states that the court must inquire into the offender's financial circumstances and ability to pay before setting the fine. That brings us back, fair and square, to the point before us. Should the fine be £200, £500 or £1,000 maximum? In some ways, it does not matter what the maximum is because the court cannot slap a maximum fine on anyone before it, willy-nilly. The court is under a duty; indeed, magistrates would be appealed immediately to a higher court if they attempted to impose a maximum fine without inquiring into the offender's financial circumstances and ability to pay.
Mr. Bercow: In proposing the graduated series of fines, has my right hon. Friend taken account of the fact that the Bill treats differently, or appears to treat differently, the vendors of different types of goods, given that there is a power to confiscate non-perishable goods but not perishable goods?
Mr. Deputy Speaker: Order. The hon. Gentleman has been a Member of the House for a reasonable time now. He must know that we are talking not about the Bill in its
entirety but about an amendment to it. The amendment deals not with confiscation but with fines, so any intervention needs to be about a fine.
Mr. Maclean: I hear my hon. Friend's point, and no doubt it is something that we will address when we debate the third group of amendments, which we will reach shortly.
Under the sentencing guidelines, the court will be able to take into account, when deciding the level of the fine, the fact that one person may have had all his equipment confiscated while another may have been sent home with bags of loose hamburgers and fried onions and therefore still has some assets. I am certain that his defence solicitors--if he has defence solicitors--will plead all those arguments. The main one will be, "You cannot impose this level of fine; it is far too high. My client does not have that sort of money."
Also, if there is an order before the court to confiscate equipment, which may be worth £1,000, £5,000 or tens of thousands of pounds, defence lawyers are bound to argue that if the court is to exercise its confiscation powers, it should impose a very low level of fine because anything else would be far too much for their poor client.
Mr. Fabricant: My right hon. Friend is very generous in giving way to me for a second time. In my earlier intervention I mentioned Parliament square, and he asked me to look at the Royal Parks and Gardens Act 1872. Apparently, Parliament square garden is considered to be a royal park. Therefore, would the proposals contained in amendment No. 17 apply to Parliament square?
Mr. Maclean: I assume that they would. I assume that when the Bill is enacted, the Government will produce regulations creating the trading offences. I have studied all the possible offences that could be designated as park trading offences. In addition to selling hamburgers or hot dogs, a whole range of other activities could be regarded as trading activities, including posing for photographs in the park if companies make money out of it, as the BBC and other organisations may do. A range of activities under regulation 4 of the 1997 regulations could be regarded as trading activities, in the widest possible sense. To ensure that the measure contains a catch-all for all trading offences, I suspect that parliamentary draftsmen will designate every one possible, and the penalty of £1,000--or £500, as I suggest--will apply.
In conclusion, unless the Minister convinces me otherwise, I think that jumping from a fine of £200 to one of £1,000, plus introducing, for the first time, the right to confiscate all equipment, is very draconian. A penalty of £500 would still be twice the rate of inflation. The much-respected right hon. Member for Ashton-under-Lyne suggested that the fine should be only £200 if it were to keep pace with inflation since before the war. I am proposing a much higher penalty than the level of inflation would suggest, but the Government are demanding a very high one indeed.
We need to know why the Minister has reached that determination, how it has worked outside the parks in Westminster and what is the level of trading activity. Are we talking just about food and perishables, or is a whole
range of odd, assorted goods--perhaps of good quality--being sold as well as counterfeit ones? How does the Minister envisage confiscation working with regard to fines and penalties, and what will the effect be on the court? Only if we know the income that these people make from their activities and the extent of the mischief can we come to a proper, sensible determination about which of the amendments we should vote on today, or whether we should accept the Government's proposals.
Mr. Greenway: For the avoidance of doubt, I wish to state that the official Opposition support the Bill, which began as a private Member's Bill introduced by my right hon. Friend the Member for Cities of London and Westminster (Mr. Brooke).
I remind right hon. and hon. Members that I have personal experience in these matters. As a police officer at West End Central, policing Soho and Mayfair in the 1960s, it was my privilege and duty to arrest many a hot-dog seller. I assure my right hon. Friends the Members for Bromley and Chislehurst (Mr. Forth) and for Penrith and the Border (Mr. Maclean), who have tabled these amendments, that even in the 1960s it was not unusual for hot-dog sellers to have £100 or more in cash in their pockets when arrested. There has been much discussion about inflation since the 1920s. The result of inflation since the 1960s would mean that £100 then would be worth considerably in excess of £1,000 now.
I cannot agree that the level of fines in a Bill dealing with offences in the royal parks should be different from those in the legislation that deals with offences in the City of Westminster. Whether the level of fines is correct is a separate matter, and I have some sympathy with some of the comments that have been made on that subject.
Reference has been made to enforcement, and I pointed out earlier that the reason why several vendors were selling hot dogs within the vicinity of the London Eye this morning may have been that the police on duty had other things to do. However, inadequate policing is surely not a reason for failing to provide proper levels of penalty and sentence when offenders are caught and successfully prosecuted.
On the contrary, if the scale of offending is such that only a crackdown or blitz by police officers forsaking all their other duties would make any meaningful difference to the level of illegal trading, surely we should ensure that the courts have adequate powers to impose stiff penalties, to make that crackdown worth while. That must mean a combination of heavy fines and confiscation.
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