MAXIMUM PENALTY (Hansard, 17 May 2000)

§ Mr. Eric Forth (Bromley and Chislehurst)
I beg to move amendment No. 17, in page 1, line 13, leave out "level" and insert— for the first offence level 2 on the standard scale, and for any subsequent offence level".

§ Mr. Deputy Speaker (Mr. Michael J. Martin)
With this it will be convenient to discuss amendment No. 1, in page 1, line 13, leave out "3" and insert "2".

§ Mr. Forth
The amendment relates to the important question of fines to be imposed on those who commit offences of the nature described in the Bill. I seek to introduce the time-honoured system of imposing different levels of penalty for first and for subsequent offences.
I was at least partly inspired by what the Minister said in the Second Reading Committee—the rather unusual device that is deployed when a Bill has not yet been debated on the Floor of the House. I welcome this first opportunity to air the important issues that it raises here, on the Floor, as hitherto it has been dealt with only in Committee—a perfectly proper procedure, I hasten to add, but one that means, regrettably, that Members who were not on the Second Reading Committee or involved in the Committee stage have not yet had an opportunity to address themselves to the Bill.
On 7 March 2000, in that Second Reading Committee, the Minister said: fines, however frequently imposed by the courts, do not, as things are, act as an effective deterrent when compared with the income that can be gained from illegal trading.—[Official Report, Second Reading Committee, 7 March 2000; c. 4.] In a moment, I should like to return to the subject of income, but first it might help the House if I were to remind hon. Members of the origins of the matter. The section of the Bill to which the amendment applies makes reference to the Parks Regulation (Amendment) Act 1926, in which the matter was dealt with, although not originally. In a moment, I shall refer back to the Parks Regulation Act 1872, in which the concept of fines made its first appearance.
Suffice it to say that section 2(1) of the 1926 Act stated: if any person fails to comply with, or acts in contravention of, any regulations so made— which are regulations relating to the parks— he shall be guilty of an offence against the principal Act and shall be liable on conviction thereof by a court of summary jurisdiction to a penalty not exceeding five pounds. 352 We therefore know that the level of penalty that was fixed in 1926 was five pounds.
Subsequently, when I looked at the 1872 Act—which was updated in the 1926 Act—rather to my surprise I found in section 4 the provision: If any person does any act in contravention of any regulation contained in the first schedule annexed hereto, he shall, on conviction by a court of summary jurisdiction, be liable to a penalty not exceeding five pounds. That is an interesting illustration of the fact that between 1872 and 1926 there was so little inflation that it was not deemed necessary to increase the level of penalty.

§ Mr. Desmond Swayne (New Forest, West)
In fact, in the late 1870s and early 1880s there was significant deflation.

§ Mr. Forth
That is helpful—it explains what otherwise, to me, seemed to be a bit of a mystery.

§ Mr. Michael Fallon (Sevenoaks)
Of course, an alternative explanation is that there was not the same scale of offences, and that the original fine had proved to be a sufficient deterrent. However, it might be for the convenience of the House—so that we might be better informed—if my right hon. Friend were able, looking at the same Act, to tell us the approximate value, in current terms, of £5 in 1872.

§ Mr. Forth
I had rather hoped that my hon. Friend would not ask me that question because I should have to guess, and I do not want to have to get involved in guessing. However, I suspect that if any hon. Member were to nip into the Library while I am speaking, he or she could probably find a pretty good answer and come back to inform us.

§ Mr. Robert Sheldon (Ashton-under-Lyne)
May I help the right hon. Gentleman? The general ratio—it varies with the various circumstances that one makes use of—for pre-war to current prices is about 40:1.

§ Mr. Forth
That is very helpful indeed. It neatly places a £5 fine in 1872 at level 1 on the current scale. That gives us a very good basis on which to consider—as I shall in a moment—the proposals that I am making in amendment No. 17 on levels 2 and 3. I am very grateful to the right hon. Gentleman, whose intervention has been extraordinarily—but not unusually—helpful.

§ Mr. John Bercow (Buckingham)
I agree that what the right hon. Member for Ashton-under-Lyne (Mr. Sheldon) has just told the House is helpful. Does my right hon. Friend agree that it is important to establish whether the fact of no change in the level of fine in that 54-year period was due to no inflation, or whether it was due principally to there being no substantial increase in the annual level of offending?

§ Mr. Forth
That is indeed a perfectly possible explanation. I think that we shall come on later—perhaps not in this debate, but on a subsequent group, and certainly on Third Reading—to consider the nature of the 353 trade, which has given rise to the Bill, and of those who are alleged to be carrying out that trade. That will be quite an important consideration when we come to that stage.

§ Mr. David Maclean (Penrith and The Border)
Bearing in mind the point made by my hon. Friend the Member for Buckingham (Mr. Bercow) on the general level of offending, I am sure that my right hon. Friend is aware of all the Home Office research, done under various Governments, showing that since 1945 the average annual increase in criminal offending has ranged between about 4.5 to 5 per cent. It is therefore not the case that there has not been an increase in offending: since 1945, there has been a general average increase of 5 per cent. per annum.

§ Mr. Forth
Unusually, that intervention was not as helpful as I have come to expect from my right hon. Friend. We were considering the period between 1872 and 1926, and he has suddenly tried to rush me forward to 1945. I shall forgive him, but on this occasion I shall discount what he has said.
Lest it has escaped the attention of the House, I wanted to remark in passing that section (5) of the 1872 Act makes an interesting reference: Any park keeper in uniform, and any persons whom he may call to his assistance, may take into custody, without a warrant, any offender who in the park where such a keeper has jurisdiction, and within the view of such keeper, acts in contravention of any of the said regulations. As early as 1872, the provisions were widely drawn. One can easily trace the genesis of the Bill from 1872 through 1926 and, I think, 1997. We will not necessarily debate the powers available, although we may want to reflect on them. I am sure that the Minister will help us later, but I remain to be satisfied that the police and the park employees use to the full all the powers available to them. We should be satisfied of that before we leap to bring in the draconian provisions in the Bill.

§ Mr. Sheldon
I walk across a royal park most days and there is a horrible smell of stale fat. That is disgraceful in a royal park and outside Buckingham palace. The police say that they have acted again and again, but that they are wasting their time because they keep having to go to court. They have given up. Anybody who respects our royal parks and our main palaces and places of interest, which people come from all over the country and the world to visit, should want us to maintain the highest standards that we have been able to provide.

§ Mr. Forth
That is an elegant statement of the aspirations behind the Bill and it is typical of the right hon. Gentleman, but it does not fully explain why we need the Bill. Just this morning, I took myself down to the London Eye on the embankment south of the river. We have been told again and again that the aim of the Bill is to replicate within the royal parks the excellent powers already available to the police outside them. I gather that that is one of the main arguments, although I have not yet heard it because the Bill has not yet been considered on the Floor of the House. To my astonishment, I counted four hot-dog purveyors within 200 yd of the London Eye.
354 That gave me pause for thought. If the existing powers are so wonderful and effective that we are seeking to replicate them in the royal parks, why did I find four hamburger purveyors, with customers crowding round them? I saw them making purchases and munching happily. I did not see anyone falling to the ground. I hope that that point will be answered, because we have to tease out these issues before the House rushes to pass such draconian legislation.

§ Mr. John Greenway (Ryedale)
Probably, there were not enough police officers on duty to use the powers available to them to deal with the hot-dog stands to which my right hon. Friend referred.

§ Mr. Forth
I am aware that the number of police officers in the Metropolitan area—I think that we shall have to call it something different from July—has fallen dramatically. That partly explains the phenomenon I have described, but it gives rise to another question. Were we to grant the powers in the Bill, would there be sufficient police officers to implement and enforce them effectively in the royal parks? If it cannot be done around the London Eye, why should we be satisfied that it could be done in the royal parks? As well as asking about the powers, we should ask whether the enforcement will match them. The Minister may have to answer that question subsequently.

§ Mr. Maclean
I am grateful to my right hon. and erudite Friend for giving way, as is his custom. Was he not rather concerned by the remarks made by the right hon. Member for Ashton-under-Lyne (Mr. Sheldon), who seemed to suggest that one of the main reasons for the Bill was the disgusting smell of fast food pervading some of the finer parts of London?
The logic of that would suggest that one would need huge draconian legislation, applying not just to royal parks but to all the other establishments from which the smell of fast food—or not so fast food—may emanate into public thoroughfares and cause distress to foreign tourists. That is what the right hon. Gentleman seemed to be suggesting.

§ Mr. Forth
Indeed. We may have to consider the implications of slow food at some point, but I shall leave that to others as I do not want to prevail on the patience of the House.

§ Mr. Swayne
Will my right hon. Friend give way?

§ Mr. Forth
Is it on slow food?

§ Mr. Swayne
I have never found the smell of fast or slow food unappealing, but I would not wish to tempt my right hon. Friend further down that road. I simply suggest that the issue potentially negates the very reason for his amendment, because it matters not where one is on the scale of offences if the provisions are not enforced.

§ Mr. Forth
That is a helpful point to which we shall return; however, I do not want to be deflected from the main thrust of my argument.
355 Before turning to the level of penalties, which is the substance of my amendment, let me add one final point about the 1872 Act, which is germane to the discussion. Section 8 states: Every police constable belonging to the police force of the district in which any park, garden or possession to which this Act applies is situated shall have the powers, privileges, and immunities of a park-keeper within such park, garden or possession. I add those thoughts to set the scene for the debate that we may have subsequently about the relative powers that the police enjoy inside and outside the parks, which have been so important to the argument that we have not yet had on the Floor of the House because the Bill was hidden away in Committee. We should therefore have the opportunity of exploring it—briefly, perhaps—in the context of subsequent groups of amendments.
Returning to the substance of the amendment, I hope to persuade the House and the Minister that instead of having one single penalty level, we should have what I think has become much more widespread practice—although my right hon. Friend the Member for Penrith and The Border (Mr. Maclean) may be able to help me on this—and introduce one penalty for a first offence and a higher penalty for subsequent offences.
I understand the feelings about the Bill, as just this morning I spoke to a councillor on Westminster city council who left me in no doubt of the anxiety of that council to ensure that the problem in the royal parks was addressed. I reassured her that I did not want to stand in the way of the Bill, but insisted that it had to be properly examined, and that is exactly what we are doing now.

§ Mr. Fallon
In proposing to the House that the penalty should increase with the number of offences, has my right hon. Friend given any thought to the fact that the policy might be characterised as "Three fries and you're out"?

§ Mr. Forth
It would be unwise of me to attempt to compete with that.
We are not just talking about the relationship between the level of the penalties for a first offence and for subsequent offence, but are linking that with the words that the Minister used on Second Reading, when he said that
fines, however frequently imposed by the courts, do not, as things are, act as an effective deterrent when compared with the income that can be gained from illegal trading.—[Official Report, Second Reading Committee, 7 March 2000; c. 4.] The mystery is that nowhere in the very brief proceedings on Second Reading, which lasted 43 minutes in total, or those in Standing Committee, which lasted 35 minutes in total, could I find any discussion about the income levels that it is believed these traders enjoy, if that is the right word.
In most legislation, one attempts to relate the levels of penalties to the nature of the offence—the House will have to decide whether an offensive odour from a hamburger is a serious offence or a less serious one—and to the spoils arising from the activity. Until we know much more about the income—to which the Minister referred in passing, but never in detail—that the traders accrue from their activity, it will be difficult for us to come to a conclusion about the penalties. I assume that there must be some relativity or proportionality between income and penalties, unless the House temporarily takes 356 leave of its senses, gets carried away on a tide of emotion—understandable, perhaps—and determines that the offences are so heinous, so ghastly and so unacceptable that they must be dealt with in a peremptory and draconian way.
I am tempted, although I am probably not the person to do it—perhaps my right hon. Friend the Member for Penrith and The Border will help us later—to consider the penalties for other crimes such as violence, theft and the like, and set them in context against the penalties proposed for the generation of offensive odours. We could then see whether there was some proportionality.
Not enough has yet been said. In a total of 43 minutes of Second Reading and 35 minutes of Committee proceedings, how could the House have had an opportunity properly to examine the relationship and the proportionality between the proposed penalties and the offences that are being committed? I say "committed", although I could have said "alleged". I believe that we have considerable evidence of the offences, and the right hon. Member for Ashton-under-Lyne has just told us that in his daily perambulations in the royal park he experiences odours which he finds overwhelmingly offensive. The matter must be dealt with.
My amendment No. 17 is not quite the same as my right hon. Friend's amendment No. 1, but in both cases we want to focus the attention of the House on the matter of penalties. I should like to hear more from the Minister about what he knows about the vendors' takings or earnings, to see whether a relationship can be established between the proposed fines and what they are earning from the hapless tourists, who apparently are all too happy to avail themselves of the service provided by these people. Let us not forget that those traders would not continue to do what they are doing if there was no market for their product.

§ Mr. Bercow
It would appear that not only do we lack perfect information of the kind that Kant would have thought necessary for a successful debate, but we lack much information. Is my right hon. Friend aware that one of the supporters of the Bill has declared that hot-dog sellers are a nuisance? Does my right hon. Gentleman agree that if it turned out that those traders were doing substantial business—

§ Mr. Deputy Speaker
Order. The hon. Gentleman must keep to the amendment.

§ Mr. Forth
I shall try to refer elliptically to my hon. Friend's remarks. The four hot-dog purveyors whom I saw this morning in the area of the London Eye—a very successful and attractive item—appeared to be trading successfully with customers, and had apparently not yet been subject to any fines, at least not sufficient fines or penalties to deter them.

§ Mr. Swayne
But are the activities of the four vendors whom my right hon. Friend saw illegal?

§ Mr. Forth
I am told, and the Minister may be able to help—

§ Mr. Deputy Speaker
Order. The right hon. Gentleman is doing very well with his amendment and has kept in good order, but whether or not people outside were acting illegally is not a matter for us to consider. We must concentrate on the amendment before us and the changes that it would make to the Bill. The right hon. Gentleman has mentioned the vendors, in passing. We know that there are four of them out there, and we know what they sell and what people buy from them, so we do not need any more detail on that matter.

§ Mr. Forth
I am grateful for your protection, Mr. Deputy Speaker. My hon. Friends are keen to interrogate me, but I need your protection, vulnerable as I am. I hope that they will accept your guidance.
I am coming to the conclusion of my brief remarks.

§ Mr. Swayne
Will my right hon. Friend give way?

§ Mr. Forth
I will, but I hope that my hon. Friend's point is relevant.

§ Mr. Swayne
I believe that it is. I follow my right hon. Friend's logic, and he is making a powerful case, but I have a difficulty in principle with the amendment. Reducing the punishment for the first offence sends a powerful signal, but dealing effectively with first offences will mean that there will be no subsequent offences. That is known currently as zero tolerance. Is not the amendment offensive to the public desire for zero tolerance?

§ Mr. Forth
My hon. Friend hits me on a vulnerable spot. That is why I said a moment ago that I was grateful for your protection, Mr. Deputy Speaker. I still believe in capital punishment, although I did not seek to include such a provision in the Bill. I believe that harsh penalties are desirable, but my argument in this case is different. I am sure that the Minister is a modernist to his fingertips, and the more modern approach is to introduce an escalation in the penalties available. The penalty for the first offence would therefore be relatively low, but the penalties would escalate for subsequent offences.
I understand that my hon. Friend may want to argue differently, as may my right hon. Friend the Member for Penrith and The Border, but I hope that I have at least set the scene and posed the important questions. I hope also that the Minister will tell the House how he sees the relationships between the trade, the income accruing to traders, and the penalties that he believes will be effective.
A further matter is crucial to the question of penalties. If the Minister cannot satisfy us that the police will be able to apprehend traders under the provisions of the Bill, there is little point in a discussion of appropriate penalties, as no penalties will be imposed if wrongdoers are not caught. The Bill wants to apply the legal framework that obtains outside royal parks to people who trade within such parks. I therefore hope that the Minister will tell the House how it is that people outside royal parks will be able to trade freely, while those inside the parks will not.
A series of interconnected questions are implied by this apparently innocent amendment. They must be answered before we move on.

§ Mr. Maclean
I approach the question of the fine level from an angle that is slightly different from that of my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth). I appreciate the argument that a lower fine might be acceptable for a first offence than for subsequent offences. My right hon. Friend advanced a powerful case for that principle, but because we do not know what the consequences of any fine will be, it is difficult to know whether the fine should be set at level 1, 2, 3, 4 or 5.

§ Mr. Swayne
For those of us who are not familiar with criminal activity and who therefore have not memorised the scale of fines, will my right hon. Friend spell out what the levels of fine would mean to the ordinary vendor?

§ Mr. Maclean
I was going to set out the consequences in cash terms of the various standard fine levels, but I hope that I will not be out of order if I challenge my hon. Friend's statement that he has not come into contact with the criminal law. I seem to remember hearing him tell the House one Friday that he had once been thrown out of a public house and arrested because it had been alleged that he looked too young. Apparently, he was cleared because although he looked excessively young, he was old enough to be there. Nevertheless I trust that that was his only experience of the criminal law.
Amendment No. 1 would substitute for level 3, which carries a fine of £1,000, level 2 which carries a fine of £500. The Bill would delete level 1, which carries a fine of £200—it would replace a fine of £200 with one of £1,000. That increase is a little excessive and I recommend a maximum fine of £500 as an alternative. My right hon. Friend the Member for Bromley and Chislehurst would increase the fine from £200 to £500 for a first offence and up to £1,000 for a subsequent offence.
I have outlined the main point that we have to consider when we examine the amendments. At least, it is the main point until we consider the fundamental question whether the penalties are at appropriate levels, bearing in mind the income of the perpetrators of the offences. My right hon. Friend reminded the House of that. It is alleged that beggars on the streets of London—we will not discuss their nationality; we went down that route a few years ago—can make £200 or £300 a day if they are in the right spot and bring the right sort of children or dogs with them. Current penalties for beggars or vagrants are inadequate because those people's income is infinitely greater than the penalties they incur if they face court and the rigours of the law.

§ Mr. Christopher Chope (Christchurch)
Has my right hon. Friend any information about the number of occasions on which the maximum permissible fine is imposed by magistrates under the current system?

§ Mr. Maclean
That is a valid question. It is highly unusual for the maximum penalty to be imposed in any circumstances—for first, second or even subsequent offences. Before a magistrates court imposes a maximum sentence, it has to be satisfied about the financial worth of the relevant individual and the gravity of the offence.
For the benefit of the House, I have brought a copy of Anthony and Berryman' s "Magistrates' Court Guide 2000". The section that refers to sentencing principles for 359 the magistrates court, especially the paragraph that relates to determining the amount of a fine, is relevant. However, it would be premature to pursue that in my opening remarks. My hon. Friend has led me further ahead than I wish to be at this stage.
Before we can determine the maximum penalties, we must have some idea of the level of the criminality and the nature and extent of the profit that the alleged criminals make. We did not have the benefit of Second Reading because the Government played the trick of convening a Second Reading Committee. It would have been a simple matter to arrange a debate of two or three hours on the Floor of the House—a proper Second Reading, which Bills normally receive. That would have saved us exploring the issues now in the amendments that we had to table.
We need to know roughly the income of the offenders and to ascertain the inadequacy of the current criminal law. We have read in newspapers general allegations that parks police do not find it worth while to prosecute offenders because when offenders are taken to court the penalty is apparently inadequate and they are back on the street the same afternoon or the next day, carrying on their trade and making more money.
I have heard that said and I have read it. I have not received any briefing notes from the parks police or the Department of the Environment, Transport and the Regions to confirm that it is a problem; but if it is and if people are going through the courts on a revolving door basis—paying an inadequate fine and trading again the next day—the House is right to deal with it and the Minister is right to build that provision into the Bill so that we can determine the appropriate level of fine and the confiscation provisions. We will debate those provisions later.
We are determining what are the appropriate sanctions to be imposed on individuals. The Bill has a twin-track approach: there is a fine or penalty in court and there is confiscation of equipment or non-perishable assets.

§ Mr. Bercow
My right hon. Friend is seeking to establish a link between the scale of the fines and the gravity of the offence—this is intellectually relevant. I wonder whether he can clarify for the benefit of the House whether he thinks that the principle determinant of the gravity of the offence is the extent of the profits or the potency, on a third offence, of the smell.

§ Mr. Maclean
It is difficult for me to answer that question. The right hon. Member for Ashton-under-Lyne (Mr. Sheldon) has said that one of the principal purposes of the Bill is to deal with offensive smells coming from hamburger or hot-dog stalls, and that view has been confirmed in some of the things that I have read or that have been said about the legislation. If that is the case, one can deal with the bad odour. If, on the other hand, the real problem is that these people are making an awful lot of money unscrupulously, illegally or without a licence, we may have to look at a different range of penalties and offences.
I suggest, Mr. Martin, that if odour is the problem and we do not want people to commit the offence again, the confiscation provisions become slightly more relevant. On the other hand, if the problem is the fact that people are making excessive profits—however the Government may 360 determine that—or illegal profits by trading in one of the royal parks without a proper licence, and you will be aware, Mr. Martin, that there is nothing to stop one trading in a royal park—

§ Mr. Deputy Speaker
Order. The right hon. Gentleman has overlooked the fact that it is normal to address the Chair as Mr. Deputy Speaker.

§ Mr. Maclean
I am rightly chided, Mr. Deputy Speaker. For some reason, I assumed that we were in Committee—a totally wrong assumption. Of course you are Mr. Deputy Speaker and, if I may say so without sounding sycophantic, a good one at that. We always enjoy your presence in the Chair, in particular on Fridays when you show remarkable patience and tolerance.

§ Mr. Forth
Does my right hon. Friend accept that because the Committee stage lasted only 35 minutes, he may well have missed it altogether and thought that this was it?

§ Mr. Maclean
That is a probable and plausible explanation for my getting your designation inappropriately wrong on this occasion, Mr. Deputy Speaker. I will have to do a suitable penance.

§ Mr. Gerald Howarth (Aldershot)
I am grateful to my right hon. Friend for giving way as I fear that he is becoming too sycophantic towards you, Mr. Deputy Speaker, and I wish to protect him from that fate.
In dealing with the level of fines, my right hon. Friend posed the question, "What is the income of these traders?" Will he deal with this matter? I understand that this measure has been brought before us in part because, under the City of Westminster Act 1999, the fine was increased, which drove traders from that part of the metropolis into the royal parks where the fine was rather less. Perhaps the income of these people is such that they cannot sustain a £1,000 fine but they can sustain one of £200.

§ Mr. Maclean
My hon. Friend makes a good point; he may be right. I assume that the Minister will argue that one of the reasons for the legislation and why the proposed fines are appropriate is that they match other legislation on areas other than the royal parks, so as to ensure that traders or vendors do not find an easy loophole in the law. For example, they might be fined £1,000 if they were trading on Millbank pavement, but only £200 if they nip into one of the royal parks. [Interruption.]
Mr. Deputy Speaker, one of my hon. Friends suggested that my penalty for getting your designation wrong should be at level 3 on the standard scale, or that I should be compulsorily fed a hot dog or a hamburger. Some might allege that that was the greater penalty.
The point that I was making before my hon. Friend the Member for Aldershot (Mr. Howarth) intervened was that we must determine which provisions are to apply—whether the fines suggested by my right hon. Friend the Member for Bromley and Chislehurst or by me or those proposed in the Bill are the most appropriate to deal with the alleged mischief. There are already two theories, but they are only theories. The Minister can no doubt expatiate and explain exactly what the mischief is—is it 361 the offensive smell, or the fact that people are ripping off tourists or trading illegally in the parks and making a profit?
The discussion so far has been about hot dogs, hamburgers and food stalls. However, that is not the only form of trading in the parks on which DETR wants to crack down. I have read that other sales take place. One is told about Rolex watches at £1.50 or Chanel No. 5 perfume at 50p a bottle—the smell of that perfume may be even more offensive than that of hot dogs or hamburgers. Such goods are regularly sold from suitcases on Regent street or Oxford street.
If people are selling goods that are not food or perishables and are not in themselves creating an unpleasant odour—offending the sensitive nostrils of the residents of Kensington and Chelsea and residents near other royal parks, whose nostrils the House should wisely defend on all occasions—we need to know about it. In those circumstances, the financial penalties may need to be greater than the Minister suggested. The profits of those traders may be even greater.
On the other hand, we may not need the confiscation provisions—to which I merely allude in passing, Mr. Deputy Speaker, because they occur in another part of the Bill. Those provisions would certainly deal with the smell problem. The items would be taken away and the traders could not use them again. However, we do not need to confiscate goods—the fake Rolex watches, or other cheap or counterfeit products—to deal with the problem of smell, so a financial penalty might be appropriate in such cases.
On the determination of the amount of any fine and the principles behind it, the House is asked to accept three options. The Minister's option is to delete the £200 fine and to hit everyone with a maximum penalty of £1,000. My right hon. Friend's suggestion is to delete the £200 and hit everyone with a £500 fine on the first offence, jacking it up to £1,000. My suggestion is that a maximum of £500 would be appropriate.
Anthony and Berryman advise that, in accordance with the sentencing principles of the Criminal Justice Act 1991, the court must ensure that the penalty is commensurate with the seriousness of the offence for which it is imposed. Anthony and Berryman note that the court must assess carefully the gravity of the offence, having regard to the circumstances and to any mitigation. The court's assessment of the seriousness of the offence should then be reflected in the fine imposed.
That relates to the point made by my hon. Friend the Member for Christchurch (Mr. Chope). I do not have the magistrates courts sentencing guidelines with me, but no doubt the Minister will confirm that, under those guidelines, a fine is regarded as the least desirable option on many occasions. I think that the guidelines suggest searching for other options, including community sentences, rather than slapping fines on offenders who will not be able to pay. If an offender has difficulty paying, the easiest course is to ignore the fine and not pay it. The bad debt accumulates, the Lord Chancellor's office does not get the money and the law sinks further into disrepute. That is why the previous Government, this Government and earlier Labour Governments considered community sentences. I think that many Governments 362 have spent considerable time trying to find alternatives to fines and imprisonment. These options have included community sentences, which impose penalties that are likely to be put into effect.

§ Mr. Bercow
I do not want to prevent my right hon. Friend from proceeding with his argument, but there is still some uncertainty about the nature of the trade to which the graduated fines would apply. Is it the intention that they would apply to the sale of hamburgers and hot dogs and, for example, umbrellas, chestnuts, tee-shirts and baseball caps?

§ Mr. Maclean
My hon. Friend is right. The Bill's main provisions gives Ministers power to designate certain specified provisions of the Parks Regulation (Amendment) Act 1926 as park trading regulations. The Bill is all about creating a new and specific trading offence from existing trading regulations.
For the benefit of the House, I have a copy of the Royal Parks and Other Open Spaces Regulations 1997, which are the most recent. Regulation 4 lists the acts in a park for which written permission is required. Although they would assist in the presentation of my argument, I shall not go through them because I think that you would rule me out of order, Mr. Deputy Speaker. However, activities prohibited in parks include cycling, noise, interfering with plants and fungus and treading on flowerbeds and shrubberies, for example.
I assume that the Minister will say that those examples are not trading offences. When the Minister introduces regulations after the Bill is enacted, I assume that he will have referred to regulation 4 and have selected specific references to trading offences. Regulation 4(6) refers to the carrying on of any trade or business in a Park. Regulation 4(3) refers to the operation of a metal or mineral detector. There is reference also to the organisation of or taking part in an assembly, display or performance. That may be a theatrical or artistic performance, which in a way may be trading.
We are considering a wide range of activities that is not confined to selling goods. I suspect that when DETR is producing a list of so-called trading offences to which the Bill will apply, it will not select only references to carrying on a trade or business. Instead, it will select some of the ancillary items that can also be regarded as trading offences that will be subject to a £1,000 penalty, including taking photographs of "still or moving subjects" as part of a professional activity by a body "corporate or unincorporate" or taking part in any assembly, display, performance, representation…review or theatrical event. These, too, could be park trading offences.
The House should ask itself whether these activities, including taking part in producing photographs for The House Magazine, should incur a £1,000 penalty. The House will be aware that many of us—well, some of us are less often involved now, thank goodness, since we are no longer in positions of any importance—including Ministers, are often invited by the media not only to College Green but into the royal park that is opposite 4 Millbank to participate in photographic experiences, shall 363 we say, and to be interviewed. That, according to my reading of the regulations, is illegal. If being interviewed by the BBC on a royal park is regarded as participation in a trade and is contrary to clause 1, a penalty of £1,000 could be imposed.

§ Mr. Forth
My right hon. Friend could, if he had wished, have used the Royal Parks and Gardens Act 1872 to build on his argument, although I do not press him to do so. As far as I know, it has not been repealed, and it states: No person shall drive or wheel into a park any vehicle, barrow, truck or machine not admitted therein by the rules of the park. As long ago as 1872, many, if not most, of the activities that we are discussing would have been covered by the first schedule to that Act.

§ 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 364 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).

§ 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 365 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 366 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.

§ Mr. Chope
Will my hon. Friend deal with the argument about displacement? The London Eye is situated in the London borough of Lambeth. Does he agree that there may be so much activity there because fines there are lower than in the City of Westminster? How will that disparity be addressed by the Bill? Will not the Bill exacerbate it?

§ Mr. Greenway
I am grateful to my hon. Friend, who has anticipated my next point. One of the difficulties created by the provisions in the City of Westminster is that they have displaced illegal trading from the streets into the royal parks. He rightly states that the south bank of the River Thames is in a different London borough. That in no way suggests that the House should not pass the Bill and 367 send it to the other House for consideration, but my hon. Friend's argument about the rest of London needs to be addressed by Ministers. Perhaps the matter could be drawn to the attention of the new mayor of London, the hon. Member for Brent, East (Mr. Livingstone), and the newly elected Greater London Assembly.
The reason why the Minister and I are in the Chamber this afternoon is that the royal parks are under the jurisdiction, or departmental responsibility, of the Secretary of State for Culture, Media and Sport. Normally we would expect such issues to be considered by Home Office Ministers, or Ministers from the Department of the Environment, Transport and the Regions. I am sure that the Minister will draw the attention of his colleagues in those Departments to the point raised by my hon. Friend the Member for Christchurch (Mr. Chope).
We require the Bill to deal with the displacement into the royal parks of illegal trading that was previously carried on within the city of Westminster. I suggest to right hon. and hon. Friends that the very fact that illegal trading appears now to have been displaced to the south bank adds fuel to our argument that we need to provide adequate protection for the royal parks.

§ Mr. Bercow
My hon. Friend has referred to the scale of allegedly objectionable activity in the royal parks. Can he tell the House how much less he would expect to accrue to public funds from the fines proposed by my right hon. Friend the Member for Penrith and The Border (Mr. Maclean) than from those proposed by the Government?

§ Mr. Greenway
That is an interesting question, to which I have no answer. However, that is not the issue; the issue is whether the fines and the confiscation would be a deterrent.
My right hon. Friend the Member for Penrith and The Border asked about the scale of incomes. I have already alluded to my experience of 35 years ago, which suggested that those street traders made substantial incomes from their unlicensed sales. Obviously, they have no overheads and charge relatively high prices for relatively low-quality food or items; reference has been made to counterfeit goods being sold. For many, the fines that traders pay have traditionally been seen as being in lieu of the rent that they would have had to pay if they were trading from a recognised market or other premises.
The House needs no more evidence of the scale of income being derived from this already illegal activity than the widespread reports of Mafia control of the very people who are trading illegally within the royal parks. These so-called pitches are considered to be extremely valuable. My right hon. Friends are entirely right to ask the House to consider whether the penalties are correct, but it would be wrong for us to agree to an amendment which would reduce the level of fines permitted by the Bill. The courts will have flexibility, but in my judgment, the maximum should be higher.

§ Mr. Fabricant
I am intrigued by my hon. Friend's use of the word Mafia, and I am persuaded by much of his argument. Is he suggesting that there is an element of organised crime, or is it merely individual capitalism by the vendors?

§ Mr. Greenway
My hon. Friend puts his point with his usual eloquence. I think that organised crime is involved; 368 that advice has come from the Metropolitan police. There have been several incidents of violence, as the Minister has mentioned. We are not dealing simply with hot-dog sellers, but with organised crime and acts of violence that we should not tolerate within the royal parks. That is why this activity must be stamped out and brought under control by proper licensing. That is why the maximum penalties should be even higher.
However, we are perfectly content to trust the Minister's judgment. Clearly, it makes sense for the magistrates courts that deal with such matters—whether they are in the royal parks, the City of Westminster or the City of London—to have the same penalties available to them. I hope that on reflection, my right hon. Friend the Member for Bromley and Chislehurst will seek leave to withdraw the amendment.

§ Mr. Fallon
I shall be brief, because this is the Report stage.
The House faces an unenviable choice between the amendment tabled by my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) and that tabled by my right hon. Friend the Member for Penrith and The Border (Mr. Maclean). My right hon. Friend the Member for Bromley and Chislehurst prefers a lesser penalty for the first offence. He described that as modernisation. I would call it sociology, but let us rest on that definition. My right hon. Friend the Member for Penrith and The Border described his amendment as a compromise.
As true Conservatives, we are faced with a choice between modernisation or compromise. In reaching a decision, we should look a little more carefully at how to judge the effectiveness of the fines.
I hope that my right hon. Friends will forgive me if I say that it is all very well to criticise the Minister or the Bill for the lack of evidence on which the Minister's proposed fines are based, but I did not hear any countervailing evidence from them. I wonder whether my right hon. Friends based their amendments on discussions with the Association of Chief Police Officers or the Magistrates Association, or whether they took evidence from representatives of the royal parks. It is crucial that the level of fine should be evidence based. I regret that I did not hear in either of their excellent speeches any greater evidence in support of the levels that they would prefer than we have heard so far from the Government. If the House is to spend prime time fixing penalty levels, we should do so on the basis of discussions with those at the sharp end, such as chief police officers, magistrates and so on.
The second criterion for judging the two interesting amendments is which is likely to be the most effective deterrent. Today's debate has been useful because it has raised the concept of displacement. Something that used to happen in the City of Westminster has been pushed into the royal parks because there is a different penalty there. It has also been pushed across the river to the south bank. If we get the level of fine right, the vendors might be driven to the millennium dome and drum up some custom for that attraction.
I am not convinced by the debate that any of the suggested fines will be a deterrent—and I am far less convinced when I hear from my hon. Friend the Member for Ryedale (Mr. Greenway) that the Mafia is involved. The idea that the Mafia will be deterred because the fine 369 has been increased from £200 to £1,000 does not bear serious examination, and would not bear serious examination on the streets of Palermo in Sicily. A mere £800 will not stop the violence of which my hon. Friend spoke. I need a lot more convincing about the right level for an effective deterrent.
If we want to drive this activity—or, as the right hon. Member for Ashton-under-Lyne (Mr. Sheldon) described it, this smell—out of the royal parks, we must have an effective fine. However, I am tempted to conclude that all three of the suggested levels have been arrived at by simply making up a number. My right hon. Friends seem to think that the problem can be solved by increasing the level of the fine, but they are not sure that it will be an effective deterrent.

§ Mr. Bercow
I have always regarded my hon. Friend as a libertarian. Does he agree that if one were to argue for a much heavier fine than the Government or the Opposition are proposing, there would be a risk of arguing the doctrine that the ends justify the means and abandoning the notion of proportionality?

§ Mr. Fallon
I agree. I am not advocating a heavier level of fine than that already proposed. My right hon. Friend the Member for Bromley and Chislehurst seems content with an increased level for the second and third offence. He may wish to return to that idea when he replies to the debate.
I am not advocating any particular level of fine. I need to know why the House is debating this Bill in the middle of the afternoon when there are so many other matters for which we are told there is no legislative time. It is for the Government to defend their chosen level. I am pointing out that the two alternatives do not seem, on first inspection, to be any more solidly evidence based than what is in the Bill.
The third criterion that might be useful is to consider the alternatives. As none of us has confidence in any particular level of fine, are we sure that we have considered all the alternatives? There may be more moderate punishments, such as some form of community service, which might take the vendors off the street.

§ Mr. Swayne
For the Mafia?

§ Mr. Fallon
My hon. Friend the Member for New Forest, West (Mr. Swayne) might be about to propose more serious penalties, which might involve the vendors never returning again.

§ Mr. Swayne
I am attracted by the idea of the Mafia being involved in purveying hamburgers. That is something that we should encourage. If the Mafia can be tied up in distributing hamburgers, society might be enhanced.

§ Mr. Deputy Speaker
Order. This is wide of the debate on the amendments.

§ Mr. Fallon
There is an absence of rationale here, Mr. Deputy Speaker. If we are to criticise the Bill for overreacting to a problem, or coming up with a solution that is not based on a particular rationale, we must be honest and apply that same critique to amendments Nos. 17 and 1.
I have said that this is a difficult and agonising choice for those of us who wish to support either or both of my right hon. Friends. However, when they reply to this important debate, it is incumbent on them to demonstrate that their amendments are better rooted in evidence and based on a more reasoned framework than the Bill that they seek to amend.

§ Mr. Chope
It is a pleasure to follow my hon. Friend the Member for Sevenoaks (Mr. Fallon) because I share some of his scepticism.
My right hon. Friends the Members for Bromley and Chislehurst (Mr. Forth) and for Penrith and The Border (Mr. Maclean) have done a great service to the House and the country by ensuring that we have an opportunity to debate this matter. When speaking to clause 2 in Committee, the Minister justified the clause in just a few words. He said: The current maximum penalty…carries a fine of £200. Magistrates courts generally impose much lower fines, but even the maximum fine of £200 is no deterrent. The courts need to have much higher penalties available to them.—[Official Report, Standing Committee G, 21 March 2000; c. 7.] He did not explain why or how higher maximum penalties would deter that activity. The best deterrent is the certainty of conviction.
On Second Reading, the Minister said that those seeking to enforce the legislation in the royal parks were subject to strong-arm tactics and violence. In other words, offences were committed against them for which there are substantial penalties, including imprisonment. If the presence of those penalties on the statute book is not sufficient to deter this activity, why does the Minister think that a maximum fine of £1,000 might be?
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There is a real concern about this piecemeal legislation and the displacement effect. The Government argue that the Bill will equalise the royal parks with the City of Westminster, but those of us who, when we are in London, live on the south bank, as I do, in the London borough of Lambeth, will justifiably ask why the displacement should cause a proliferation of the illegal activity in our area. The Minister has not addressed that point.
Probably the best answer would be to have fixed penalties, decided by local authorities, just as they choose the level of parking fines. Fixed penalties and the certainty of conviction might be a much more effective deterrent than maximum penalties.

§ Mr. Fabricant
There is a powerful argument for fixed penalties. Does my hon. Friend agree that, in order to avoid displacement, they should apply equally to the royal parks and gardens as well as to places that do not come under the provisions of the 1872 Act?

§ Mr. Chope
That is a powerful point.
The Minister admitted in the Second Reading Committee that he had been advised that interviews by the immigration and social security authorities have elicited that many of those operating these food carts say that they are asylum seekers.—[Official Report, Second Reading Committee, 7 March 2000; c. 5.] That shows that the Government will never achieve their objective of reducing that illegal activity through the Bill.
I do not know whether the Minister has consulted the new chairman of the Commission for Racial Equality on whether he thinks that the legislation is discriminatory, but if those people are indeed asylum seekers, that further demonstrates the knock-on effects of the Government's inadequate asylum policies. Is it not unthinkable that maximum fines of £1,000 should be imposed on asylum seekers, who will justifiably be able to say that they have no source of income? How will the courts be able to impose £1,000 fines on asylum seekers, and how will asylum seekers be deterred from this unlawful activity by the provisions in clause 2?

§ Mr. Swayne
I do not yet know whether I am in favour of, or against, the amendments. That depends to some extent on what the Minister will say. I want briefly to rehearse my dilemma and to crystallise what has emerged. One has to decide which side of the fence to come down on. I want to rehearse the argument that has erected that fence for me.
I think that my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) undermined the force of amendment No. 17 when he suggested that it might not be profitable to spend a great deal of time discussing the level of fines when those fines were unlikely to be enforced.
My hon. Friend the Member for Ryedale (Mr. Greenway) dismissed that argument with powerful logic, but both he and my right hon. Friend relied on one piece of evidence: the four traders next to the London Eye to whom they referred. The key point is that we might be doing those traders a huge disservice, because no one has yet produced any evidence to persuade us that they are trading illegally, yet they were used as the example to prove that the fines would not be enforced. Without that evidence, no such issue can be decided.
The thrust of the remarks of my right hon. Friend the Member for Bromley and Chislehurst and those who followed his logic was that the fine had to be proportionate to the offence. If I understood him and my right hon. Friend the Member for Penrith and The Border (Mr. Maclean) correctly, they did not believe that these offences were quite as heinous as some might portray them to be—reference was made earlier to the offensive smells that might emerge—and my right hon. Friend the Member for Bromley and Chislehurst therefore wanted to reduce the fine in respect of the first offence.
I understand the force of those arguments. These vendors do not force their products on unwilling customers. They provide a service. If it constitutes a nuisance, we must be proportionate in our response. That is one side of the fence—the argument for the amendments.
The argument against the amendments is the argument for zero tolerance—that the fines should be severe and there should be no reduction for the first offence on the 372 grounds that, if we deal severely with the first offence, there will not be subsequent offences. The argument is that, if one takes these issues seriously, one deals with the problem rather than having a running sore.
That might be countered by the proportionality argument—that it is ridiculous to deal with such trivial offences in so draconian a way—but the benefits of the zero tolerance approach are felt not in respect of those particular offences but in respect of all offences. The experience in New York is that dealing with minor offences such as street begging or illegal trading in a severe way has a knock-on effect on much more serious crime throughout the city. That is a powerful argument that we should consider.
However, I have at the back of my mind a reservation, which sprang from a telephone call that I received last week from a constituent, complaining that he had reported a burglar alarm ringing next door to him to the police, only to be told that it was the policy of the police in Ringwood not to respond to burglar alarms. Here we are, discussing additional fines to pursue the purveyors of hamburgers, and I wonder whether we have lost our sense of proportion.
I refer again to the remarks of my hon. Friend the Member for Ryedale, who suggested that the hamburger trade had been sewn up by the Mafia. It may bear repeating that if we could confine gangsterism to the purveyance of hamburgers, we would be doing very well indeed.

§ The Parliamentary Under-Secretary of State for Culture, Media and Sport (Mr. Alan Howarth)
I am happy to respond to the debate on the amendments. I am grateful to all who have participated. It is proper that we should debate the proposals in the spirit of satisfying Parliament that the legislation proposed by the Government is necessary, well framed, proportionate—that has been mentioned several times—and therefore fit to proceed speedily on to the statute book. I hope that right hon. and hon. Gentlemen are increasingly satisfied that that will be the case.
The Bill has been considered carefully by Opposition Front Benchers, and I place on record my appreciation of the responsible attitude of the hon. Members for Ryedale (Mr. Greenway) and for Richmond Park (Dr. Tonge). I assure those right hon. and hon. Gentlemen who have cast a scintilla of doubt on whether Parliament's scrutiny of the measure has so far been adequate that I have been subjected to a rigorous and searching interrogation—more importantly, so has the legislation—by the hon. Gentleman and the hon. Lady. None the less, it is appropriate to proceed as we are this afternoon, and I shall address myself to the amendments. In so doing, I shall deal more gently with the right hon. Members for Bromley and Chislehurst (Mr. Forth) and for Penrith and The Border (Mr. Maclean) than did the hon. Member for Sevenoaks (Mr. Fallon), who made some shrewd criticisms of the amendments—in the interests of opening up such issues for debate, I presume.
This straightforward measure is intended to deal with a pretty clear-cut problem—unauthorised, and therefore illegal—trading in the royal parks. Indeed, the Metropolitan police and the Royal Parks Constabulary have advised us that such illegal trading is very much a manifestation of organised crime of an unpleasant nature.
373 The right hon. and hon. Gentlemen, who are strongly committed to upholding good law and order, would certainly want the Government to deal with such crime.

§ Mr. Fabricant
The Minister says that he agrees with my hon. Friend the Member for Ryedale (Mr. Greenway) that this is indeed a problem of organised crime. The word "Mafia" was used. Therefore, does he think that a level 3 penalty, which is suggested in clause 2 and is the subject of the amendments, will be adequate to deter the Mafia or others involved in such organised crime?

§ Mr. Howarth
I shall address the specific point that the hon. Gentleman properly raises in a moment, but right hon. and hon. Members want to know the nature of the problem, so I shall respond on that general point before dealing with the fines and other remedies and penalties that may be appropriate.
We suspect that such activities are organised, but even if they are not, they involve ripping off the many visitors who come to enjoy the royal parks on a scale that should shock us all. I am advised that the illegal traders who have been arrested and charged with offences have told the police that they make approximately £1,200 a day—a lucrative trade indeed. However, they do not always have that sum on them because they use a system of runners to take the money back to those who control them. It is clear that significant penalties, including fines, are needed if we are to address the problem.
I was asked about the incidence of such offences. In 1999, about 1,500 illegal traders were prosecuted for activity that occurred in St. James's and Green parks, so we are dealing with a large-scale problem that causes widespread offence. Licensed traders are losing a significant amount of business. Their turnover has been substantially reduced—by about 50 per cent. since the mid-1990s. A further effect is that The Royal Parks agency is deprived of the revenue that it would otherwise receive from the licensed traders, so a clear public interest is involved.
6.15 pm
Apart from the financial aspects—the money made by the unauthorised traders and the sum lost by those who should benefit—we have seen a set of practices that I can only describe as squalid. We have seen episodes of violence. Unauthorised traders have gone at one another with knives as they contended for particular pitches. On one occasion, they went at one another with iron bars just outside a park. Hot fat was poured over a police officer who sought to prevent them from carrying on that trade.

§ Mr. Forth
What puzzles some of us is that the Minister is describing criminal activity. Presumably, the criminal law extends to the royal parks. He used the phrase "we have seen", so presumably the police must have also seen those activities. Is he telling us that the police will not or cannot deal with the criminal activities that he describes, let alone the trading and the creation of offensive smells?

§ Mr. Howarth
We must deal with those who are engaged in the criminal activity that we find on the spot. 374 The right hon. Gentleman is perfectly right to press me on that point because, of course, the police should make every effort to get at the racketeers who lie behind the trade. We are talking about practical measures to get at the roots of the problem as well as at the individuals who commit such offences in the parks.

§ Mr. Fabricant
rose—

§ Mr. Bercow
rose—

§ Mr. Howarth
I shall make a little more progress and then respond to any point that hon. Members want to make. I am dealing with the nature and scale of the problem because only when we understand that can we judge the appropriateness of the fines proposed.
Amendment No. 17 would limit magistrates courts to imposing a fine not exceeding £500 for a first offence. They would be empowered to impose a fine not exceeding £1,000 for a subsequent offence. We heard an interesting history of inflation between 1872 and 1926, and we were all grateful to my right hon. Friend the Member for Ashton-under-Lyne (Mr. Sheldon) for his authoritative intervention. We also heard some interesting speculation about the rising incidence of criminality. In fact, the penalties that we introduce must be effective, not disproportionate or draconian.

§ Mr. Fabricant
Will the Minister give way?

§ Mr. Howarth
Not yet. Amendment No. 1, which was tabled by the right hon. Member for Penrith and The Border, would reduce the maximum fine that magistrates courts could impose for a park-trading offence to £500. There is no reason why we should stipulate that the courts should impose a more lenient penalty on an illegal trader for a first offence. Given the scale of the problem, the offences perpetrated and the rewards that the unauthorised traders enjoy, his proposal to impose a level 2 fine is not appropriate.
A particularly important consideration—the point was helpfully made by the hon. Member for Lichfield (Mr. Fabricant)—is the need for consistency; that theme has emerged during the debate. The right hon. Member for Bromley and Chislehurst drew attention to the activities of traders on the south bank. As we debate the matter now, we have no idea whether those traders were licensed, so we cannot generalise usefully from the observation that he made, but we do know that, as far as possible, we should have available to us a consistent regime and a consistent range of penalties.
It seems to me—I am grateful for the support that I have had on the point from the hon. Member for Ryedale—that it is obviously sensible for the regime that we create for the royal parks to be consistent with the regime that Parliament has created for the City of Westminster. The City of Westminster Act 1999 was passed only last year. We can ask all sorts of questions—they were asked in the debate—about whether there are alternatives to fines. Possibilities were proposed such as community service, but, unless we deal consistently with the same offences in neighbouring areas, we will continue to see the displacement effect, which has caused the state of affairs in the parks to deteriorate so badly, particularly since we introduced that Act.

§ Mr. Bercow
I hope that the Minister is not implying that there is a causal link between deplorable violence and 375 thriving trade. I assume that he accepts that the trade that is taking place is voluntary. In seeking to justify the fines that he proposes, what exactly does he mean by the term "ripping off'?

§ Mr. Howarth
I am advised that some high prices for what I would think were unappetising hot dogs and hamburgers are being extorted from innocent visitors to parks. The hon. Gentleman, who is deeply committed to the unalloyed free market, would no doubt applaud such conduct. He would say good luck—caveat emptor—but, having responsibility within Government for The Royal Parks agency and for good conduct in, and good presentation of, the royal parks, I am concerned that we should not endorse the violations of hospitality that such practices involve, so I do not agree with him on the matter.

§ Mr. Fabricant
The Minister says, rightly, that there needs to be consistency between the level of fines in the royal parks and the level of fines in the City of Westminster to avoid displacement, but, before a fine can be levied, there must be an arrest. What worries me is that, earlier, he spoke about crimes of violence that are against the criminal code and where there have not been arrests. Is he convinced that there are sufficient parks police—there are certainly not sufficient Metropolitan police—to ensure that such arrests can be made?

§ Mr. Deputy Speaker
Order. That is going wide of the amendment that is before us. The amendment is about fines. Therefore, we should restrict ourselves to that.

§ Mr. Fabricant
But the person must be arrested before he can be fined.

§ Mr. Deputy Speaker
Order.

§ Mr. Howarth
I am grateful to you, Mr. Deputy Speaker.
Let me pay tribute to the Royal Parks Constabulary because it is trying hard and doing its best to acquit its responsibilities in difficult circumstances. I believe that the force is sufficiently staffed for it to be able to carry out its responsibilities, but there need to be the sanctions and the penalties, which are available to the courts. Otherwise, the problem will grow and grow. At the moment, it is simply too easy for people to make a lot of money out of illegal trading, so the problem is liable to overwhelm the Royal Parks Constabulary, but I am glad to say that that is by no means the case at the moment. However, it is under a pressure that it should not be under. It is one of the reasons why we need that level of fines.

§ Mr. Maclean
Will the Minister give way?

§ Mr. Howarth
No. I should like to carry on a little further.
Fines alone will not be sufficient. The scale of profiteering that I have described shows that, so we need the panoply of measures that Parliament has already provided the City of Westminster, including fines, powers of seizure and the power of the courts to order forfeiture. We need to see the fines in that broader context. The 376 evidence is that the array of penalties available to magistrates to use for offences committed in the City of Westminster is working satisfactorily.
We have had much debate about what the level of fine should be. That is a proper concern for the House to have, but let me remind right hon. and hon. Members that the Bill still leaves magistrates courts discretion to impose a lesser fine. The right hon. Member for Penrith and The Border underlined that it is not just a discretion. There is a duty to exercise that discretion—magistrates have a duty to take account of the circumstances of each case—so the concerns about proportionality are well met.
The offence in question is not, as was suggested, merely the generation of offensive odours. We have an array of much more significant offences. It is right that we should have those powers to deal with them. I hope that, on that basis, the right hon. Member for Bromley and Chislehurst will be willing to withdraw his amendment and to agree that what we have in the Bill is, after all, appropriate.

§ Mr. Forth
I am grateful to the Minister for taking the trouble to answer the debate in such detail and with such courtesy. I am conscious of the passage of time. I think that we have had a proper and thorough debate.
In view of what the Minister and, in particular, my hon. Friend the Member for Sevenoaks (Mr. Fallon) have said, I now realise that my amendments were probably misplaced and even misdirected. I feel properly chastened. On the basis of their remarks, I beg to ask leave to withdraw the amendment.