The Horticultural Produce (Community Grading Rules) (Scotland) Revocation Regulations 2004

Explanatory Note

(This note is not part of the Regulations)

These Regulations revoke, with effect from 18th June 2004, the Horticultural Produce (Community Grading Rules) (Scotland) Regulations 2003 (“the 2003 Regulations”), which provide that the references to “Community grading rules” in sections 11(3) and 22(3) of the Agriculture and Horticulture Act 1964 (“the 1964 Act”) and regulation 2 of the Grading of Horticultural Produce (Amendment) Regulations 1973 (S.I. 1973/22) (“the 1973 Regulations”), and in the provisions of Part III of the 1964 Act as applied with modifications by the 1973 Regulations, expressly include the provisions of the Community Regulations specified in the Schedule to those Regulations.

The House of Lords confirmed in Defra v ASDA Stores Limited and another [2003] UKHL 71 that the references to “Community grading rules” in section 11(3) of the 1964 Act and in the 1973 Regulations are to those Community grading rules in force at the time of acts said to constitute contraventions of the 1964 Act, as modified and applied by the 1973 Regulations, irrespective of when the Community grading rules in question were made.

Accordingly, section 14 of the 1964 Act, as modified by the 1973 Regulations, criminalising breaches of Community grading rules, applies to all Community grading rules in force at the time of the acts said to constitute contraventions of the 1964 Act and the Scottish Ministers need not exercise the powers under section 11(3) of the 1964 Act and section 2(2) of the European Communities Act 1972 to criminalise breaches whenever new Community grading rules are made. The 2003 Regulations are therefore otiose.

These Regulations are made under the power contained in–

(a) section 2(2) of the European Communities Act 1972 in respect of revocation of the 2003 Regulations in so far as they apply to the references to “Community grading rules” in sections 11(3) and 22(3) of the 1964 Act; and

(b) section 11(3) of the 1964 Act in respect of revocation of the 2003 Regulations in so far as they apply to references to “Community Grading Rules” in the 1973 Regulations and the provisions of Part III of the 1964 Act as applied with modifications by the 1973 Regulations.

A Regulatory Impact Assessment has not been prepared for this instrument as it has no impact on the costs of business.