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SCOTTISH STATUTORY INSTRUMENTS

2003 No. 502
HORTICULTURE
The Horticultural Produce (Community Grading Rules) (Scotland) Regulations 2003

	Made	22nd October 2003
	Laid before the Scottish Parliament	27th October 2003
	Coming into force	17th November 2003

The Scottish Ministers, in exercise of the powers conferred by section 11(3) of the Agriculture and Horticulture Act 1964[1] and section 2(2) of the European Communities Act 1972[2], and of all other powers enabling them in that behalf, after consultation with such organisations as appear to them to be representative of interests affected by the Regulations, hereby make the following Regulations:

Citation, commencement and extent
     1. - (1) These Regulations may be cited as the Horticultural Produce (Community Grading Rules) (Scotland) Regulations 2003 and shall come into force on 17th November 2003.

    (2) These Regulations extend to Scotland only.

Application of the Agriculture and Horticulture Act 1964
     2. - (1) This regulation applies to references to Community grading rules in-

(a) sections 11(3) and 22(3) of the Agriculture and Horticulture Act 1964[

(2) For the avoidance of doubt (and without prejudice to their generality), those references are to be regarded as including the provisions of the Community Regulations specified in the Schedule to these Regulations.

ROSS FINNIE
A member of the Scottish Executive

St Andrew's House, Edinburgh
22nd October 2003

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations are concerned with the application of the Agriculture and Horticulture Act 1964 ("the 1964 Act") to the grading of horticultural produce.

The decision, in England, of the Divisional Court in the case of the Department for the Environment, Food and Rural Affairs v ASDA Stores Limited ([2002] EWHC Admin 1335) has raised doubts about the extent of references to Community grading rules in the 1964 Act and the Grading of Horticultural Produce (Amendment) Regulations 1973 (S.I. 1973/22) ("the 1973 Regulations"). That decision is the subject of an appeal to the House of Lords. In the interim, steps have been taken by means of the Horticultural Produce (Community Grading Rules) (England and Wales) Regulations 2003 (S.I. 2003/1846) to clarify the extent of those references in respect of England and Wales.

While the decision of the Divisional Court is not binding in Scots law these Regulations clarify the extent of such references in respect of Scotland and thus ensure that the doubts which arose in the English case will not arise as regards Scotland.

These Regulations provide for the references to "Community grading rules" in sections 11(3) and 22(3) of the 1964 Act, in regulation 2 of the 1973 Regulations, and in the provisions of Part III of the 1964 Act as modified by the 1973 Regulations, expressly to include the provisions of the Community Regulations listed in the Schedule to these Regulations.

These Regulations are made under the power contained in section 2(2) of the European Communities Act 1972 and also, in relation to the references in the 1973 Regulations and the provisions of Part III of the 1964 Act as applied with modifications by the 1973 Regulations, under the power contained in section 11(3) of the 1964 Act.

Notes:

[1] 1964 c.28; section 11(3) was inserted by the European Communities Act 1972 (c.68), section 4(1) and Schedule 4, paragraph 4(1)(a). Section 26(2) contains the definition of "the Ministers". The functions of the Ministers were vested in the Minister of Agriculture, Fisheries and Food and the Secretary of State for Scotland and the Secretary of State for Wales acting jointly by the Transfer of Functions (Wales) (No. 1) Order 1978 (S.I. 1978/272), article 4(2) and Schedule 2. Section 26(2) was amended by article 11(2) of and paragraph 1 of Schedule 5 to that Order. The functions of the Ministers, so far as exercisable within devolved competence, were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998 (c.46).back

[2] 1972 c.68; section 2(2) was amended by the Scotland Act 1998, section 125(1) and Schedule 8, paragraph 15(3). The function conferred upon the Minister of the Crown under section 2(2) of the European Communities Act 1972, insofar as within devolved competence, was transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998.back

[3] Section 22(3) was amended by the European Communities Act 1972, section 4(1) and Schedule 4, paragraph 4(1)(b).back

[4] S.I. 1973/22 amended by S.I. 1983/053.back

ISBN 0 11062505 6