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.